text:
    Board of Education of Community Consolidated School District 606, County of Tazewell, State of Illinois et al., Plaintiffs-Appellees, v. Board of Education of Community Unit District 124 of Counties of Mason and Tazewell, State of Illinois et al., Defendants. Board of Education of Community Unit District 124 of Counties of Mason and Tazewell, State of Illinois, Defendant-Appellant.
    Gen. No. 10,073.
    Third District.
    October 16, 1956.
    Rehearing denied November 13, 1956.
    Released for publication November 13, 1956.

      Kenneth H. Lemmer, Richard W. Yelde, and John S. Gaw, all of Havana, for appellant.
    Dempsey and Knhfnss, and Roth S. Smith, of Peldn, for appellees.
   JUDGE CARROLL

delivered the opinion of the conrt.

This is an appeal from a decree of the Circuit Court of Tazewell County declaring void an election held pursuant to petitions for detachment and annexation of certain territory of a school district and perpetually enjoining the Board of Education of the annexing district from exercising jurisdiction over the areas affected by the annexation proceeding.

The action was brought by the Board of Education of Community Consolidated School District No. 606 in Tazewell County and thirty-seven residents and legal voters of said district. The Board of Community Unit School District No. 124 in Mason County, R. C. Theis, County Clerk of Tazewell County and a number of other parties were named defendants. However, the cause was subsequently dismissed as to all except the two defendants above named.

Prior to the institution of the detachment proceedings with which we are concerned on this appeal, Consolidated School District No. 606, to which we will refer as District 606, lay north of and adjoined District 124. District 606 maintained grades 1 to 8, inclusive, and District 124 maintained grades 1 to 12, inclusive. At an election held in District 606 on March 31, 1953, a proposition to annex all of said district to District 124 was defeated. Subsequently, there were filed with the County Superintendent of Schools certain petitions for an election on the proposition of detachment of two portions of the territory then embraced within District 606 and their annexation to District 124. At an election held on May 14, 1953, the proposition carried in both petitioning areas. This election was held pursuant to the provisions of Section 4B — 6, Chap. 122, Illinois Revised Statutes, 1951.

One of the territories detached from District 606 referred to in the briefs as the “upper area” adjoins District 124 along a common boundary for about three quarters of a mile and contains approximately three sections including a part of Talbott’s Subdivision, upon which the school building of District 606 is located. The other, or “lower area,” has approximately seven miles of common boundary with District 124 and comprises about twenty sections north and west of said district.

The substantive allegations of the complaint are that the petitioners, in drafting the petitions for detachment of the two areas of District 606, disregarded the rights and interests of the remaining residents, voters and school children of the said district; that the lines of the petitioning area were so drawn as to exclude therefrom enough voters opposed to detachment of said areas to make it certain that the propositions would carry at the election; that the petitioners intentionally and without regard for the rights of landowners, tenants and school children, included farms in the area sought to be detached, but excluded the residences of the owners or tenants of such farms who were opposed to the detachment, thereby depriving such residents of the right to vote in the election; that the petitioners intentionally and with utter disregard for the rights of school children, residents and voters of District 606 included in the area sought to be detached the only schoolhouse and facilities located in said district; that if said school facilities are detached the property valuation remaining in District 606 would be insufficient to support a bond issue for the construction of a school building for use by said district and as a result the people thereof will be unable to conduct a school; that residences of persons known to be opposed to the detachment proceeding were excluded from the area sought to be detached and that the children of these residents will be obliged to travel many miles to a school in some other district; that after July 1, 1953, if the detachment of territory becomes effective, District 606 will have no school facilities; that there, is no district other than District 124 to which the remaining portion of District 606 can be annexed; that the petitioners seek unlawfully and inequitably to force such remaining portions of District 606 to annex to District 124; that if the change of boundaries is permitted to stand the boundary lines of the two districts will be such as to render the same unreasonable, arbitrary, unjust, oppressive and inequitable.

It is further alleged in the complaint by way of conclusion, that the actions of the petitioners are such as to constitute an abuse of the power delegated to them by the legislature of the State of Illinois under the statute authorizing the detachment proceedings in question. The prayer of the complaint is that the Board of Education of District 124 be restrained from taking control of the territory detached from District 606; that the County Clerk of Tazewell County be enjoined from extending taxes levied by District 124 against the detached areas and that the election of May 14, 1953 be declared null and void.

The defendant Board of Education of District 124 moved to dismiss the complaint on the ground that equity is without jurisdiction to determine an election contest and that the legality of the annexation of territories to a school district can be tested only by quo warranto. This motion was denied and defendants ruled to answer. The complaint was later amended to include an allegation that the description of the “upper area” was void. The cause was referred for hearing to a Master who found that the detachment proceedings were void because of constructive fraud and an insufficient description of the “upper area” and recommended the entry of the decree to which we have previously referred.

In view of the conclusion reached herein, we refrain from exploring or commenting on the evidence in the record.

It is contended by defendants that only political rights are involved in this proceeding and therefore equity has no jurisdiction and that since plaintiffs seek to challenge the validity of the annexation and detachment of school territory the exclusive remedy available to them was quo warranto.

If this contention be upheld, it will be unnecessary to consider other grounds for reversal which are urged. Accordingly, we first undertake determination of the question raised by such contention.

It is a generally well established and recognized rule in this state that the jurisdiction of a court of equity pertains only to the maintenance of civil, personal and property rights and that it has no jurisdiction over matters or questions of a political nature unless civil property rights are involved. Spies v. Byers, 287 Ill. 627; Miller v. City of Chicago, 348 Ill. 34; People v. Barrett, 203 Ill. 99; Fletcher v. Tuttle, 151 Ill. 41. With reference to that which is embraced within the terms “political rights” and “civil rights,” Bouvier says:

“Political rights consist in the power to participate, directly or indirectly, in the establishment or management of government.” “Civil rights are those which have no relation to the establishment, support or management of the government. These consist in the power of acquiring and enjoying property, of exercising the paternal and marital powers, and the like.” (2 Bouvier’s Law Dic. p. 485.)

The distinction between civil and political rights is lucidly pointed out by the court in . Sheridan v. Colvin, 78 Ill. 237, where.it is said:

“. . . the subject matter of the jurisdiction of the court of chancery is civil property. The court is conversant only with questions of property and the maintenance of civil rights. Injury to property, whether actual or prospective, is the foundation on which the jurisdiction rests. The court has no jurisdiction in matters merely criminal or merely immoral, which do not affect any right to property. Nor do matters of a political character come within the jurisdiction of the court of chancery. Nor has the court of chancery jurisdiction to interfere with the public duties of any department of government, except under special circumstances, and where necessary for the protection of rights of property.”

The question in the instant case is whether the rights which plaintiffs seek to enforce by their complaint are political or civil. From plaintiffs’ allegations which we have herein detailed to some extent, it appears that the basis of their claim to relief is that the effect of the results of the election upon District 606 coupled with the circumstances surrounding the drafting of the petitions constitutes a constructive fraud upon plaintiffs. More specifically, it is alleged that in a prior election on March 31, 1953, a proposition to annex all of District 606 to District 124 was defeated; that the boundary lines of the detaching territories were drawn so as to deprive persons opposing the annexation from voting in the election thus rendering a favorable result therein a certainty; that the school facilities of District 606 were included in the detaching territory which was in disregard of the welfare and rights of the school children of such district and that the action of the petitioners, the voters in the election and the defendants is so unreasonable, arbitrary, unjust and oppressive as to constitute an inequitable disregard of the rights and interests of District 606 and an abuse of the power delegated by the legislature of Illinois to the petitioners under the statute authorizing the change of boundaries accomplished by the election.

An analysis of the import of these allegations must be made with due regard for the extent of the authority of the courts to deal with problems involving the organization of school districts or the alteration of the boundaries thereof.

Section 1 of Article VIII of the Constitution of 1870 provides: “The general assembly shall provide a thorough and efficient system of free schools, whereby all children of the state may receive a good common school education.”

The effect of this constitutional mandate is to require the legislature in the exercise of its powers to establish by appropriate legislative enactment a system of free schools. To meet the responsibility thus enjoined upon it, the legislature has provided for the creation of school districts. A district thus created is a quasi-municipal corporation or minor subdivision of the state and serves as an administrative arm of the legislature in putting into effect the will and intention of that body. People v. Wood, 411 Ill. 514.

The area comprising a school district may be divided, contracted or abolished at the will of the legislature. Dolan v. Whitney, 413 Ill. 274. In exercising control over the territory comprising a particular district, the resident voters thereof become the agents of the legislature. By following the procedure prescribed by enabling legislation the voters of such district meet the responsibility of determining all questions relative to its boundaries. The theory behind this legislative policy is that the settlement of all questions relative to boundaries of a school district should be left to the resident voters thereof. People v. Deatherage, 401 Ill. 25.

When in pursuance of a valid legislative enactment these voters act upon a proposition to alter the boundaries of a school district, they do so as the agents of the legislature. As was said in People v. Deatherage, supra, “Those voters, in a practical sense, become administrative functionaries to administer the law.”

The section of the school code pursuant to which the election in controversy was conducted has been held valid. People v. Community Unit School Dist. No. 3, 2 Ill.2d 454. The election was not contested and failure to comply with the provisions of the statute is not charged in this action. Since the detachment proceedings were conducted in full compliance with the statute authorizing the same, it follows that the voters of the detached areas in exercising the authority thereby vested in them, were acting as the agents of the legislature in administering a provision of the school law. In so doing they were discharging a governmental function.

With the character of the acts of the voters thus established, it becomes obvious that the allegations of the complaint charge only that these voters improperly used the authority vested in them by the legislature. No injury to the plaintiffs’ property rights is alleged. The substance of plaintiffs’ complaint is merely that the voters failed to properly perform a governmental function. The jurisdiction of chancery courts does not include power to interfere with the public duty of governmental departments except where it is necessary for the protection of property rights. A voter who participates in the creation of a school district, or in the conduct of the affairs thereof, exercises no inherent right to do so but only avails himself- of a privilege conferred by the legislature. This privilege recognizes no vested property rights of such voter in the district or its school facilities. The continued existence of a school district and the operation of a school therein is dependent entirely upon the will of the legislature. People v. Community Unit School Dist. No. 3, supra.

We think there can be no doubt as to the fact that the complaint herein fails to allege any injury, actual or prospective, to the property of plaintiffs.

Whereas plaintiffs claim in this case the results of a school election are such as to warrant the conclusion that the voters have misused and abused their powers, then the remedy must be sought in the legislature and not in the courts. People v. Deatherage, supra.

The apparent theory upon which plaintiffs seek to sustain the proposition that chancery jurisdiction may properly be invoked herein is that as a result of the actions of the voters participating in the election a fraud was perpetrated upon the Board of Education of District 606 and the portions of said district remaining after the petitioning area is detached and that the court exercising equitable powers may declare the election void.

Regardless of how this theory may be characterized, it proceeds upon the assumption that plaintiffs and other persons residing in District 124 have a vested right in said district and the school facilities thereof. Furthermore, it may be observed that to sustain plaintiffs’ proposition would require holding that the jurisdiction of equity includes the power to inquire into the legality of the detachment proceeding.

In many cases the Supreme Court has held that where it is sought to test the legality of the detachment of territory from a school district the exclusive remedy available for such purpose is quo warranto. Board of Education of Community High School Dist. No. 166 v. Thorp, 336 Ill. 227; Baird v. Community High School Dist. No. 168, 304 Ill. 526; Manchester Community High School Dist. No. 121 v. Murrayville Community High School Dist. No. 123, 309 Ill. 403.

In arguing that the complaint states a case for equitable relief, the plaintiffs rely principally upon the cases of Fisher v. Birkey, 307 Ill. 625, and 299 Ill. 145.

In these cases, which emanated from a single controversy, it was held that an order of a county superintendent of schools might be set aside by a court of equity where such order was shown to he so unreasonable and oppressive as to constitute oppression and a wanton disregard of the rights and interests of those complaining. When the order involved in these cases was entered, the School Act provided for the formation of new school districts and the changing of the boundaries of existing districts by township trustees when properly petitioned, to satisfy the wishes and convenience of a majority of the inhabitants of the township. The Act further provided that all districts be composed of contiguous and compact territory. An appeal from the decision of the trustees to the county superintendent of schools was authorized. Petitions for a new district to be formed from parts of four districts were filed in accordance with the statute and were denied by the trustees. On appeal the county superintendent reversed the action of the trustees and held that organization of the new district would be for the best interests of the districts and inhabitants thereof.

In holding the action of the Trial Court correct in setting aside the order of the superintendent of schools, the Supreme Court in effect ruled that although school officers in exercising the power to divide townships into school districts to suit the wishes and convenience of a majority of the inhabitants thereof or to make changes in districts were vested with a large discretion, their action must not be arbitrary and in disregard of the best interests' of the inhabitants and taxpayers of all the districts involved. As stated by the Court, the basis of the plaintiffs’ bill giving a court of equity jurisdiction was that the action of the county superintendent of schools was unreasonable and oppressive.

Here we are not concerned as was the Court in the Birkey cases with the question as to whether the action of a school officer in making a change in district boundaries amounted to an abuse of tbe discretion vested in Mm. Tbe action of which plaintiffs complain was that of the voters in effecting a detachment of territory from one district and annexing the same to another adjacent district under a valid statute enabling them to do so.

The alleged disastrous result upon the remaining territory of District 606 accomplished by the election and of which plaintiffs complain are of no consequence in determining the question of the authority of a chancery court to grant the relief prayed.

In the Birkey cases, the Court dealt with the discretionary power of a school officer under certain sections of the school law to form new school districts or alter the boundaries of existing districts to suit the wishes and convenience of a majority of the inhabitants of the township affected. Thus the effect of any particular action of such school officer upon all of the township became a factor in determining the validity of his actions. Sec. 4B — 6 provides that only the voters of the territory sought to be detached and of the district to which the territory is to be annexed shall vote upon the detachment proposition. If it was the intention of the legislature to give recognition to the wishes of the inhabitants of all of the district from which territory is detached, then provision therefor would be found in the Act. Injection of such requirement by the courts would constitute an unwarranted interference with legislative power.

For the reasons herein indicated, we conclude that the amended complaint fails to state a case for equitable relief and defendants’ motion to dismiss the same should have been sustained.

The decree of the Circuit Court is reversed.

Reversed.

REYNOLDS, P. J. and ROETH, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE FEINBERG.

license: Public Domain

text:
    Dorothy Stevenson Clark, Appellant, v. Tribune Company, Appellee.
    Gen. No. 46,875.
    First District, Third Division.
    September 26, 1956.
    Released for publication November 8, 1956.
    Herldon H. Bowen, and Vincent A. Theisen, for appellant; Kirkland, Fleming, Greene, Martin & Ellis, for appellee; Howard Ellis, John B. Martineau, and Don H. Reuben, of counsel.
   Opinion by

PRESIDING JUSTICE FEINBERG.

Not to be published in full.


author: JUDGE KILEY.

text:
    Nellie Jeffries, Plaintiff-Appellee, v. George C. Adams, Defendant-Appellant.
    Gen. No. 46,827.
    First District, Third Division.
    September 26, 1956.
    Rehearing denied October 23, 1956.
    Released for publication November 8, 1956.

      Lucas T. Clarkston, for defendant-appellant; Heber T. Dotson, for plaintiff-appellee.
   Opinion by

JUDGE KILEY.

Not to he published in full.


author: PRESIDING JUSTICE ROBSON

text:
    Richard J. Daley, Mayor, Local Liquor Control Commissioner, Appellant, v. License Appeal Commission, A. L. Cronin, Chairman, and Copy Lounge, Inc., Applicant, Appellees.
    Gen. No. 46,838.
    First District, Second Division.
    September 25, 1956.
    Released for publication November 27, 1956.

      John C. Melaniphy, Corporation Counsel, City of Chicago, for plaintiff-appellant; L. Louis Karton, Head of Appeals and Review Division, Harry A. Iseberg, Harold M. Nudelman, and Sydney R. Drebin, Assistant Corporation Counsels, all of Chicago, of counsel.
    Fisher, Hassen & Fisher, of Chicago, for defendantappellee ; Leonard Fisher, of Chicago, of counsel.
   PRESIDING JUSTICE ROBSON

delivered the opinion of the court.

In April 1955 defendant Copy Lounge, Inc., filed an application for renewal of its retail liquor license for its premises at 530 North Rush street, Chicago, Illinois. Mayor Richard J. Daley, in his capacity as Local Liquor Control Commissioner, rejected the application on the ground that the applicant had served liquor to minors in violation of the ordinances of the City of Chicago, and the statutes of the State of Illinois. Ill. Rev. Stat. 1953, chap. 43, par. 131. An appeal was taken to the License Appeal Commission in accordance with the provisions of Ill. Rev. Stat. 1953, chap. 43, par. 153. The Commission reversed the order of the local commissioner. The trial court entered judgment affirming the order of the License Appeal Commission. The local commissioner seeks a reversal of that judgment on this appeal.

The evidence in the hearing before the License Appeal Commission consisted of the following: (1) The testimony of two police officers that two juvenile girls, not in Illinois at the time of the hearing, had stated to them that they had been served alcoholic beverages at the Copy Lounge, Inc.; that the girls personally identified the bartender on duty as Peter Karr, and the waitress who had served them as one Lois Slack; that these statements of the young girls were made in the presence of Karr, the manager of the applicant’s establishment. (2) The testimony of Peter Karr that he did not serve liquor to either of the two girls, and that he did not work evenings and thus was not on duty at the time these girls alleged he was tending bar. (3) The testimony of James Stasinos, Secretary-Treasurer of the Copy Lounge, corroborating the testimony of Peter Karr that he does not work beyond ten o’clock in the evening, and that Mr. Karr’s place is taken by William Manos who operates the establishment until the next morning. Neither Lois Slack nor William Manos was called to testify in behalf of the applicant, Copy Lounge, Inc.

The question before us on appeal is whether or not the License Appeal Commission was justified in reversing the order of the local commissioner on the basis of the evidence adduced at the hearing. In order to answer this question we must first determine the scope of the authority of the License Appeal Commission to review the orders of the Local Liquor Control Commissioner on appeal. The relevant statutory provision is found in Ill. Rev. Stat. 1953, chap. 43, par. 153:

“Appeals from order of local commission. § 8. Except as hereinafter provided, any order or action of a local commission granting or refusing to grant a license, revoking or refusing to revoke a license or refusing to grant a hearing upon a complaint to revoke a license may within twenty (20) days after notice of such order or action be appealed from by any resident of the political subdivision under the jurisdiction of such local commission or any person interested, to the State commission, in which event the matter of the propriety of such order or action of such local commission shall be tried de novo as expeditiously as the circumstances permit. In cities, villages and incorporated towns having a population of over 200,000 inhabitants appeals from any such order or action shall lie to the license appeal commission of such city, village or incorporated town.” (Italics ours.)

Appellant contends that the effect of this and other language in the statute is to vest the Local Liquor Control Commissioner with broad authority in granting and refusing to grant, for cause, liquor licenses, subject to review; that the issue before the License Appeal Commission is therefore whether or not the local commissioner abused that discretion; and that it is improper for the License Appeal Commission to reverse an order of the local commissioner unless there is a showing that his action was capricious, arbitrary, or without good cause. Appellees contend, in essence, that the statute provides for a de novo hearing before the License Appeal Commission; that the discretion of the local commissioner is not the issue; and that the License Appeal Commission may make an independent finding on the basis of the evidence adduced before it at the hearing on appeal. •

The courts of this state have never passed on the precise issue here involved. In Rajah Liquors v. Division of Alcoholic Beverage Control (1955), 33 N. J. Super. 598, 111 A.2d 291, however, the New Jersey court made the following statement in construing a similar statute:

“The law entrusts the local board with a discretion as to the transfer of liquor licenses. . . . And the State Division on an appeal in such a matter, . . . will interfere in the exercise of the board’s discretion only because of an abuse of the discretion, . . . that is, because of a manifest mistake; . . . clearly unreasonable action, or some more untoward impropriety. Such is the scope of review before the Division in such a matter, notwithstanding that testimony is taken de novo.”

The Illinois Dram Shop Act expressly gives the local commissioner the power to grant or revoke for cause liquor licenses. Ill. Rev. Stat. 1953, chap. 43, par. 112. In interpreting the language of the statute it is clear that the local commissioner is vested with discretionary power in making these determinations. The case of Harrison v. People, 222 Ill. 150, is most pertinent. Our Supreme Court construed the power of the mayor under a city ordinance which provided that “The May- or of the City of Chicago shall from time to time grant licenses for the keeping of dramshops within the City of Chicago to persons who shall apply to him in writing therefor and shall furnish evidence satisfying him of their good character.” The court discussed the discretionary power of the mayor as follows:

“We are, however, of the opinion that there is vested in such authorities, unless expressly restricted by the language of the ordinance, a discretionary power, which may be reasonably exercised in the granting or refusing to issue a license.”

Aside from the language of the statute itself, there is a sound basis in public policy for vesting this discretion in the mayor as Local Liquor Control Corn-missioner. The retail sale of intoxicating liquors when not properly conducted is a business fraught with danger to the community. The entire Dram Shop Act, with its ofttimes described “harsh” provisions, indicates the legislature’s awareness of this fact.- The question of whether a particular applicant should be granted a local liquor license raises a peculiarly local problem having to do with the public health, safety and morals of the community. Who is better able to solve these problems than the elected mayor? He is best equipped to make these decisions because there are available to him various sources of information, from which he can intelligently decide to grant or reject an application for license.

If the local commissioner does not have this discretion, his decisions in these matters are of no more effect than a recommendation to the License Appeal Commission. This is clearly not contemplated by the language of the statute. Paragraph 153 of the Dram Shop Act, which deals with appeals from the orders of the local commissioner, expressly states that the hearing before the State or the License Appeal Commission shall concern the “matter of the propriety” of the order or action of the local commissioner. In re Whitford’s Liquor License (1950), 166 Pa. Super. 48, 70 A.2d 708, involved the construction of the word “propriety” as it appeared in a statute. The court said:

“A judicial inquiry as to the propriety of an act of a public authority involves judgment upon the discretion and wisdom exercised in the circumstances.” (Italics ours.)

This language clearly indicates that the issue on appeal is whether or not the local commissioner abused his discretionary power, and whether he acted arbitrarily and without good cause.

Appellees contend that the testimony of the two police officers was hearsay and thns conld not support the order of the local commissioner. This contention has no merit. The specific question before the License Appeal Commission in the instant case was whether the police reports justify the local commissioner’s rejection of the application for license renewal, and not whether the evidence taken as a whole established the truth or falsity of the contents of the police reports. The testimony of the two police officers showed that the local commissioner’s action was not arbitrary. Their statements were based upon information received through proper channels indicating that the applicant was not entitled to a renewal of its retail liquor license. The statute does not provide for a hearing and the introduction of evidence before the local commissioner when the renewal of a license is denied. There is no requirement as to the form or character of the evidence upon which the local commissioner may rely. It certainly is not required that he consider only matters that would be admissible in a court of law. Yarbrough v. Montoya, 54 N. M. 91.

The applicant’s evidence contradicted the minors’ identification of Peter Karr, the bartender, but failed to rebut the basic charge of sale of liquor to minors. The record shows that the local commissioner acted upon information reported to him by police officers which he believed to be true. This was not an instance of arbitrary or capricious action. We conclude that the judgment of the trial court and the License Appeal Commission was erroneous and should be reversed.

Order reversed.

SCHWARTZ and McCORMICK, JJ., concur.


text:
    Essie B. Westbrooks et al., Appellants, v. Eula Lee Matthews Finley et al., Appellees.
    Gen. No. 46,853.
    First District, Second Division.
    September 25, 1956.
    Rehearing denied November 27, 1956.
    Released for publication November 27, 1956.
    Heber T. Dotson, of Chicago, for appellants.
    Isaac I. Bender, of Chicago, for appellees.
   PRESIDING JUSTICE ROBSON

delivered the opinion of the court.

This is an appeal from an order of the lower court dismissing a bill of review for errors apparent on the face of the record. The history and pleadings in this matter are quite extensive and will here be related only to the extent necessary for our decision.

The issues before this court arise out of a partition suit filed by Eula Lee Matthews Finley and Henry P. Willimon, in which one John Lee was a party defendant. A decree of partition was entered on June 20, 1950. The decree ordered the sale of the property involved, and referred the determination of rents and profits to a master. Defendant John Lee appealed from this decree and, on August 28,1950, filed a supersedeas bond in the sum of $3,000. John Lee’s attorney, Richard E. Westbrooks, signed this bond as surety, giving as security three pieces of real estate which are the properties involved in the present appeal. The partition decree was affirmed on appeal (Finley v. Crossley, 409 Ill. 435) and the U. S. Supreme Court denied petition for certiorari.

John Lee filed another appeal from the order of the lower court confirming the sale of the property involved in the partition suit. As principal, he signed another supersedeas bond in the sum of $2,500 on May 26, 1952, and his attorney, Richard E. Westbrooks, again signed as surety listing the same three pieces of real estate as security. The order of the lower court was again affirmed. (Finley v. Crossley, 414 Ill. 105.)

As a result of the proceedings before the master, two judgments were entered against John Lee. One dated October 27,1953, in the sum of $5,556.13, and the other dated December 3, 1953, in the sum of $568. John Lee’s whereabouts became unknown just prior to the time the judgments were entered against him.

Richard E. Westbrooks died in December 1952, and title to the real estate scheduled in the two bonds descended to Ms wife, Essie B. Westbrooks, by virtue of a joint tenancy deed executed and recorded during tbe hfetime of Bicbard E. Westbrooks after tbe execution of tbe supersedeas bonds.

Plaintiffs obtained leave of court to file a supplemental and amended complaint making Essie B. West-brooks, individually and as administratrix of tbe estate of Bicbard E. Westbrooks, deceased, a party defendant; prayed tbat title to tbe property specified as security for tbe bonds be declared “subject to tbe lien created by tbe bonds in tbe sum of $5,500, and tbe property be sold to satisfy tbis lien and all costs of tbis action together with interest wbicb may bave accrued”; and “tbat tbe title of record in Essie B. Westbrooks to tbe property ... be declared null and void and tbat such property be sold by tbis court to satisfy tbe amount due on tbe bonds filed by Bicbard E. Westbrooks.”

Tbe objection of Essie B. Westbrooks to being made additional party defendant was overruled, and ber motions to strike and dismiss tbe amended and supplemental complaint were denied. On October 27, 1954 Essie B. Westbrooks filed ber answer wbicb admitted tbe allegations of tbe amended and supplemental complaint, but denied tbat plaintiffs bad a ben on tbe property mentioned, and further denied tbat plaintiffs were entitled to any of tbe relief prayed because there bad never been a judgment against Bicbard E. West-brooks or bis estate on tbe bonds.

On December 21, 1954 tbe court entered a decree, finding tbe facts to be as they bave been heretofore set forth. Tbe court further found tbat tbe plaintiffs acquired a ben on tbe property set forth as security in tbe bonds, and decreed:

“. . . tbat tbe real estate set forth herein and known as A, B and C, BE Sold at pubbc auction to tbe highest and best bidder, provided tbat each piece of property shall not be sold for less than $2,500.00 each or a sum of not less than $7,500.00 for the three pieces of property. That the properties shall be sold only for cash and the buyer at the sale shall deposit with the Master in Chancery the purchase price at the time of sale.”

Thereafter Essie B. Westbrooks filed a bill of review for errors apparent on the face of the record, which the lower court dismissed. Many issues were raised in the bill of review and in the briefs on this appeal. Our opinion, however, is based on one point, and we need go no further.

Essie B. Westbrooks was not, individually or as administratrix, a party to the actions against John Lee. She was not made an additional party defendant nor served with summons until after there had been a final decree in the partition suit and the judgments against John Lee had been entered. The amended and supplemental complaint Avhich made her a party defendant did not seek a judgment on the bond against Essie B. Westbrooks in her capacity as administratrix. Instead, it prayed that the court order the sale of properties listed as security for the bond in satisfaction of the judgments against John Lee. The court’s order granted the relief prayed. There was never a judgment on the bond against the surety, Bichard E. Westbrooks, or his administratrix.

We therefore have a situation where the security advanced by a surety on a supersedeas bond has been ordered sold without there being any adjudication of the surety’s liability on the bond. No authority has been cited and we have found none to the effect that the security of a surety on a bond may be subject to levy upon the sole ground that judgment has been entered against the principal, where the surety was not a party to the suit against the principal and was given no notice of it. Unless there is a statute eliminating the necessity of a formal judgment in cases of this kind, the trial court cannot he deemed empowered to proceed in this manner. In Whitehurst v. Coleen, 53 Ill. 247, it was held that under the twenty-fourth section of the cost act, then in existence, a fee hill and execution for costs may issue against the surety for costs, without a judgment having been rendered against him. The court said, however, that “were it not for that section, it is perfectly obvious that a judgment on the bond for costs would have to precede the fieri facias. It would then be governed by common law principles.” There is no statutory provision in Illinois which eliminates the necessity of obtaining a judgment against the surety on the bond before execution may issue against his property. The common law applies, and the common law requires a judgment.

The liability of a surety on a bond is of a contractual nature, and thus it may differ from the nature of the principal debtor’s liability. Gillmore v. Equitable Surety Co., 239 N. Y. S. 530; Merrill v. Travis, 248 Ala. 42, 26 So.2d 258. In Grommes v. St. Paul Trust Co., 147 Ill. 634, the court said:

“Some cases hold that the judgment [against the principal] is conclusive evidence against the surety, but these will generally be found to be cases where the contract of the surety obligates him to be responsible for the result of a suit against his principal, or where he has been made privy to the suit against the principal by notice, and has been given an opportunity to defend it. . . . The general tendency of the decisions is in favor of the position, that, in the absence of such notice and opportunity to defend, or of such assumed responsibility for the result of a court proceeding, the judgment against the principal is not conclusive against the surety, but can only be introduced against him as evidence of its own existence, and not as evidence of the facts upon which its recovery rests.” It is apparent that the requirement of a judgment on the bond against the surety is more than a mere tech-meal formality. It insures the surety of a hearing and an adjudication of the issues relevant to his liability on the bond. The proceeding below did not concern the issue of liability on the bond. The bond, itself, did not even appear in the pleadings.

We are of the opinion that the trial court was without authority to order the sale of the properties listed as security for the bonds. This was error apparent on the face of the record. The trial court erred in dismissing the bill of review. The cause is reversed and remanded with directions to take such further proceedings as are consistent with the findings of this opinion.

Order reversed and cause remanded.

SCHWARTZ and McCORMICK, JJ., concur.


author: PBESIDING JUSTICE BOBSON

text:
    Harlan Houston et al., Appellants, v. Village of Maywood, Appellee.
    Gen. No. 46,930.
    First District, Second Division.
    September 25, 1956.
    Released for publication November 27, 1956.

      Stephen Jnrco, of Chicago, for appellants; E. C. Prank Meier, of Chicago, of counsel.
    Louis Ancel, of Chicago, for appellee; Jack M. Siegel, and Howard B. Bryant, both of Chicago, of counsel.
   PBESIDING JUSTICE BOBSON

delivered the opinion of the court.

This is an appeal from the trial court’s order granting defendant’s motion to dismiss plaintiffs’ complaint' in equity. Plaintiff Houston, the owner of a trailer camp, and certain of his tenants, sought to invalidate the proceedings which annexed the property where the trailer camp was located to the defendant, Village of Maywood, and also sought to enjoin the enforcement of the ordinances of the defendant against the trailer camp and its tenants.

The facts are undisputed. The property owned by plaintiff Houston was located in an unincorporated area of Cook County, Illinois. It was bounded on the west and south by the Village of Maywood and on the east by the Forest Preserve District of Cook County. On September 11, 1947 the Forest Preserve District passed a resolution authorizing the filing of a petition for annexation of its territory which was contiguous to the Village. On August 6, 1948 a petition was filed in the county court, and after proper notice and hearing, the court ordered that the question of annexing the Forest Preserve property be submitted to the Village Board of the Village of Maywood. On August 31, 1948 the Village Board passed an annexation ordinance, incorporating the Forest Preservé District property into the Village of Maywood. As a result of the annexation the property of plaintiff Houston, an area of seven acres, was completely surrounded by the incorporated territories of the Village of Maywood and the Village of Eiver Forest. The property, being less than thirty acres, was thereafter on November '18, 1948, involuntarily annexed by ordinance of the Village of Maywood in accordance with the provisions of the statute. Ill. Rev. Stat. 1947, chap. 24, par. 7 — Ill.

The Village of Maywood then sought to enforce against the plaintiffs its ordinance prohibiting trailer camps by instituting quasi-criminal proceedings for ordinance violations. Plaintiffs brought the present action.

Plaintiffs’ principal contention on appeal is that the petition of the Forest Preserve District to annex a portion of its territory to the Village of Maywood was null and void because (1) it had no power to petition, for annexation and (2) if it did have the power, it' could not be done by mere order, but was an action which could only properly be taken by ordinance; that since the annexation of the property of the Forest Preserve District was void, the subsequent involuntary annexation of Houston’s property was also void because the statutory circumstances necessary for involuntary annexation did not exist.

Defendant contends that the Forest Preserve District did have the power to petition for annexation, and could exercise that power by resolution.

The annexation of the Forest Preserve District property was in accordance with Ill. Rev. Stat. 1947, chap. 24, par. 7 — 2:

“Petition for annexation — Filing—Notice—Fee. A written petition, signed by a majority of the owners of record of land in such territory and also by a ma: jority of the electors, if any, residing in such territory, shall be filed with the county clerk of the county in which the territory is located. The petition shall request the annexation of the territory to a specified municipality and also shall request that the judge of the county court of the specified county submit the question of the annexation to the corporate authorities of the annexing municipality.” ■

All the statutory steps were followed and plaintiffs make no objection to the form of the petition, the proceedings and order of the county court, or the form of the annexing ordinance adopted by the Village of Maywood. Plaintiffs contend that the Forest Preserve District is a municipal corporation having only those powers expressly granted and those necessarily incident thereto; that the Forest Preserve District Act [Ill. Rev. Stats. 1947, ch. 57½ ] does not expressly empower the district commissioners to petition for annexation ; that the power to so petition is not necessarily incident to any of the express corporate purposes or powers of the Forest Preserve District; and that the district therefore does not have the power to petition for annexation and any such petition is null and void.

The reasons for the organization of the Forest Preserve District are indicated by the stated purposes for which land may be acquired:

“. . . for the purpose of protecting and preserving the flora, fauna and scenic beauties within such district, and to restore, restock, protect and preserve the natural forests and said lands together with their flora and fauna, as nearly as may be, in their natural state and condition, for the purpose of the education, pleasure and recreation of the public.” Ill. Rev. Stat. 1947, chap. 57½, par. 5.

Statutes granting powers to municipal corporations are strictly construed. Arms v. City of Chicago, 314 Ill. 316. But a power may be implied even though it is not absolutely indispensable to the effective exercise of those powers expressly granted. People v. City of Chicago, 363 Ill. 409. It is true that there is no express provision in the statute empowering the district corn-missioners to petition for annexation, but it does, however, designate the Forest Preserve Board as the corporate authority of the district with power to pass and enforce all necessary ordinances, rules and regulations for the management of the district’s property and conduct of its business. Ill. Rev. Stat. 1947, chap. 57½, par. 8. This broad provision necessarily implies that the board is vested with the discretion to determine what course of action will achieve the most successful and efficient management of the district’s property. If annexation to an adjacent municipality will help to achieve the purposes of the district by aiding in the management of its property, and will not be inconsistent with any of the provisions of the Forest Preserve District Act, then such course of conduct cannot be said to be outside the implied powers of the district board.

The Forest Preserve District Act clearly contemplates that a Forest Preserve District may lie within the corporate boundaries of a municipality. Paragraph 3a of the act provides that when a district is coextensive with a city or village, the corporate authorities of the municipality shall perform the functions of district commissioners. Paragraph 9, which provides that the district may have its own police force, makes that police force subject to the direction of the chief of police of any city or village in which the district land may lie. Thus the annexation in question would not result in a situation which is inconsistent with any provisions of the Forest Preserve District Act.

The benefits, if any, that the Village of May-wood might gain from this annexation is not a relevant consideration to the problem before us. The benefits to the property and purposes of the district, however, is relevant to the question of whether or not the board abused its implied discretionary powers in petitioning for annexation. Paragraph 9 of the act clearly indicates that the policing of the district property will be improved by the additional aid of the Village’s regular police force. The district property can further be expected to benefit from the fire and sanitation services that the Village provides for areas within its corporate boundaries. It is also apparent that harmonious co-operation between the district and Village authorities will not only benefit the district property, but should also result in economies that would benefit the taxpayers of the county.

The annexation does not deprive the district board of its specific powers nor of its duty to use the land for its statutory purposes. Title to the property remains in the district. We cannot assume that the Village will attempt to take over the annexed territory in utter disregard for the district’s statutory powers and obligations. If conflicts arise it will become the province and duty of the courts to adjudicate the differences. West Chicago Park Com’rs v. City of Chicago, 152 Ill. 392, 38 N. E. 697.

We conclude, therefore, that under the statute the district has the implied power to petition for annexation.

Plaintiffs’ further contention, that the district board’s petition for annexation was null and void because it was authorized by resolution instead of by ordinance, is without merit. The general rule in this and other jurisdictions is that, where the charter of a municipality is silent as to the mode in which the governing body shall perform an act, the decision of the governing body may be evidenced by either a resolution or an ordinance. Only where the charter requires an act to be done by ordinance, or where such a requirement is implied by necessary inference, a resolution is insufficient. People v. City of Chicago, 363 Ill. 409; Chicago & Northern Pacific R. Co. v. City of Chicago, 174 Ill. 439; People v. Mount, 186 Ill. 560; Collins v. City of Schenectady, 10 N.Y.S.2d 303; City of Barre v. Perry & Scribner (Vt.), 73 A. 574.

Paragraph 12 of the act generally authorizes the district board to act by ordinance, order and resolution. The power to petition for annexation is implied and so the statute does not specify whether such action is to be taken by ordinance or resolution. Thus the resolution was sufficient unless the requirement of an ordinance is implied by necessary inference. The filing of a petition for annexation cannot be 'deemed a legislative act, nor can it be said to establish a permanent rule. It simply constitutes the initial step necessary to the eventual passage of an annexation ordinance, which is the only legislative act involved. We do not consider this is a situation where the formality of an ordinance is required by necessary inference.

Since we had held that the district board had the .power to petition for annexation and that it executed this power in a proper manner, the annexation of the district property by the Village of Maywood was valid — and it follows that the subsequent involuntary annexation of the plaintiffs’ property was also valid.

Order affirrhed.

SCHWARTZ and McCORMICK, JJ., concur.


author: JUDGE SCHWARTZ

text:
    Frank Lichter, Lydia Flores, a Minor, by Manuel Flores, Guardian of Her Estate, Appellees, v. Phil Scher, and Morris Petchersky, d.b.a. P. M. Liquor Store, Jack Spot Inn, Inc., and Leonard A. Bauer, d.b.a. Better Value Liquor Store, Defendants. Jack Spot Inn, Inc., Appellant.
    Gen. No. 46,822.
    First District, Second Division.
    September 25, 1956.
    Released for publication November 27, 1956.

      John J. Maciejewski, of Chicago, for appellant; Charles D. Snewind, of Chicago, of counsel.
    David Alswang, and Alexander J. Reiff, both of Chicago, for appellee; David Alswang, of Chicago, of counsel.
   JUDGE SCHWARTZ

delivered the opinion of the court.

This is an appeal from an order denying the petition of Jack Spot Inn, Inc., a corporation, hereinafter called the defendant, to set aside an order of default and to vacate a judgment for $25,000. While Frank Lichter still appears as a plaintiff in the title of the case, an order was entered September 14, 1951, dismissing the cause as to him and leaving Lydia Flores the sole plaintiff. The complaint filed July 19, 1948 charged that defendant in violation of the Dram Shop Act caused the intoxication in whole or in part of Nancy Lichter, mother of Lydia Flores, as a result of which Nancy Lichter died. Summons issued and ,was returned August 24, 1948, with an endorsement by the Deputy Sheriff that he had served the writ on “Jack Spot Inn, Inc., a corporation, by leaving a copy thereof with H. S. "Wakefield, an agent of said corporation this 20th day of July, 1948.” No appearance or answer was filed by Jack Spot Inn, Inc. and on December 6, 1951 notice was given to the attorneys of record for the other defendants that it was contemplated that a default judgment, order or decree would be entered December 13, 1951, at 2 o’clock P.M. A sworn certificate of the Clerk of the superior court was attached, certifying that the notice was mailed December 6,1951. On December 13, 1951 an order of default was entered and a jury was waived for the purpose of prove-up on the default. Thereupon, the court heard the evidence, assessed damages at $25,000 and entered judgment.

On September 16, 1953, defendant, which had changed its name to Johnny Mitchell’s Incorporated, filed its petition to vacate and set aside the default and judgment. In support of its petition defendant presented the affidavit of Wakefield, denying that he was ever served with summons. Plaintiff moved to strike the petition and the court allowed the motion. An appeal was thereupon taken, and in Lichter v. Scher, 4 Ill.App.2d 37, 123 N.E.2d 161, this court reversed the order and remanded the cause for hearing on the issue of service. Upon remandment the trial court heard the evidence on the issue of service, as well as argument on the other points made by Jack Spot Inn, Inc. The court decided against defendant and entered the order and judgment in' question. Some of the points made by defendant are highly technical but we have given them all careful consideration. In a case in which default has been entered and there has been no trial on the merits, the judgment itself is based on the technique of procedure and is subject to careful scrutiny. We will consider first the factual issue of service on defendant:

The deputy sheriff testified that he entered the tavern in the afternoon of the day of service, that no one was there except a man behind the bar who gave his name as H. S. Wakefield, that he gave Wakefield the writ and made return thereof. Wakefield testified that he never received the summons, that he always held himself out as “Jim” and never used the name “Horace” nor the initials “H. S.” in the tavern. While in his affidavit and in portions of his testimony he denied that he received the summons, on cross-examination he was not so sure. It is argued that Wakefield was not the proper agent to receive service. So far as appears from the record this corporation operated but one tavern. As we have said, it had changed its name from Jack Spot Inn, Inc. to Johnny Mitchell’s, Inc. Its president was known as Harvey Murray, as Johnny Mitchell, and sometimes as Johnny Michael. He never appeared in the case. The agent named for service of process was Sidney Bernberg, secretary-treasurer, who was not a full-time employee. He was an auditor who appears to have done work for the corporation only occasionally. His residence address was listed in the telephone book, but his office address was not listed. Wakefield, according to the testimony of the deputy sheriff, which the trial court accepted as worthy of belief, was the only employee in the place at the time he entered. Wakefield mixed and sold drinks — the main, if not the only, business of the corporation — and at the time in question he was in charge. Indeed, he seems to have had a more substantial contact with the business than the officers of the company. The evidence supports the finding of the chancellor.

After judgment had been rendered an order was entered by the court January 28, 1952, granting leave to amend the complaint and other pleadings, orders and judgments by inserting the words “also ■known as Johnny Mitchell’s Incorporated, a corporation,” after the words “Jack Spot Inn, Inc., a corporation,” and amendments were made accordingly. This order was entered upon certification hy the attorney for plaintiff that notice had been given to the attorneys of record for the other defendants and that a notice had been mailed to Sidney Bernberg, secretary-treasurer of the defendant. It is the contention of Jack Spot Inn, Inc. that this amendment vacated the judgment which had been entered; that thirty days having expired, there could be no change in the judgment except as to form and then only pursuant to some note, memorandum or memorial remaining in the files or records of the court. The amendment neither added to nor detracted from the validity of the judgment. It was merely a further description of the defendant. If we assume that the court had no power to make the amendment, the judgment against Jack Spot Inn, Inc. still is not invalid because of the attempt. We will comment on some of the cases cited by defendant.

In Cowen v. Harding Hotel Co., 329 Ill. App. 239, 67 N.E.2d 707, the court held that summons shown as returned the day before suit was brought constituted an invalid service. In Oppenheim & Strauss v. Mower, 193 Ill. App. 48, a judgment was changed from one against a corporation to a judgment against a copartnership. The court considered this a change in substance. In Odell v. Levy, 307 Ill. 277, 138 N. E. 608, a supplemental bill seeking to make additional parties to a decree of foreclosure was held to have had the effect of rendering the previous order taking the decree pro confesso inoperative. It appears that the supplemental bill deprived the additional parties of their substantive rights. The distinction between the foregoing cases and the instant case is apparent.

Clark v. Augustine, 342 Ill. App. 296, 96 N.E.2d 582, is cited by defendant for the proposition that a judgment cannot be amended after thirty days even as to form unless such amendment was pursuant to some note or memorandum in the files or records of the court. Defendant contends that there was no such note or memorandum in the instant case. The order of default recites that Jack Spot Inn, Inc. was also known as Johnny Mitchell’s, Inc., a corporation. This was a sufficient note or memorandum to satisfy the requirements of the Clark ease.

Defendant contends that plaintiff’s waiver of a jury and the court’s hearing and assessment of damages pursuant thereto operated to vacate the default and hence the judgment was invalid. Article VII, Sec. 71, of the Civil Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 195] provides as follows:

“(Assessment of damages by court). In all actions in the courts of record in this State upon default, when the damages are to be assessed, it shall be lawful for the court to hear the evidence and assess the damages without a jury for that purpose.”

In this case, the defendant was in default for want of appearance after service, and it was proper for the court to hear the evidence and to assess the damages. In Cowen v. Harding Hotel Co., 329 Ill. App. 239, 67 N.E.2d 707, cited by defendant, there is language to the contrary. There, the plaintiff sued the Harding Hotel Company, a corporation, and the Harding Hotel Management Corporation, a corporation. The sheriff made a return showing that he served the hotel company by leaving a copy of the summons with A. J. Sinkula, its office manager and agent, and that he also served the management company by leaving a copy of the summons with A. J. Sinkula. The hotel company entered its appearance and filed an answer. The management company, however, defaulted. Without notice to the hotel company, default was taken against the management company. A jury was waived by the plaintiff, damages were assessed by the court, and a judgment entered against the management company. The court held that the plaintiff could not withdraw its demand for a jury as to the management company without notice to the hotel company. In this respect it differs from the instant case, in which other defendants whose appearance had been entered were notified. In Palmer v. Harris, 98 Ill. 507, a defaulted defendant sought to have a judgment set aside on the ground that he had the right to have the damages assessed by a jury. Pursuant to the statute then in effect, the damages had been computed by the clerk and judgment entered thereon. The statute contained a proviso that either party could have the damages assessed by a jury. The court held, however, that where the defendant was in default for want of appearance, he could not after judgment have it set aside in order that a jury might assess the damages. The court said, p. 510:

“In our opinion, the court is under no obligation to keep a case open for a non-appearing defendant any length of time. If he is in court, it is his duty to be present when the case is reached in its order upon the docket and called for trial, and then make known any wish he may have in regard to the mode of assessing damages, precisely as it is his duty to be present at or before that time and interpose any defence he may have to the action.”

In McNulty v. White, 248 Ill. App. 572, after the term in which a default judgment was rendered had gone by, the defendant moved to set aside the judgment on the ground that other parties defendant had been dismissed without notice to the attorneys for the movant. A rule of the circuit court required notice, of assessment of damages. The.court held that a, defaulted defendant was not entitled to such notice.

Defendant in the instant case contends that the judgment is void because at the time of the entry thereof the Dram Shop Act limited recovery to $15,000. This limitation was imposed by the amendment of August 10, 1949. At the time the cause of action arose, March. 10, 1948, and at the time of the commencement of suit, July 19, 1948, there was no limitation on the amount of such damages. It is defendant’s contention that the limitation is retroactive. It bases this theory on the proposition that the Dram Shop Act is purely a statutory creation and its continued existence or modification dependent on legislative enactment. Therefore, the legislature had the right to make such modification or abolition retroactive. The language of the Act and the purpose thereof, it is contended, reveal that the legislature intended to make the limitation retroactive.

Since the recent adoption of amendments relating to damages in both death and dramshop actions and limiting the time within which such actions may be brought, the law bearing on the retroactive effect of these statutes has been considered in a group of cases in the Supreme and Appellate Courts. Orlicki v. McCarthy, 4 Ill.2d 342, 122 N.E.2d 513, affirming Orlicki v. McCarthy, 2 Ill.App.2d 182, 119 N.E.2d 1; Fourt v. DeLazzer, 348 Ill. App. 191, 108 N.E.2d 599; Steiskal v. Straus, 3 Ill.App.2d 479; Theodosis v. Keeshin Motor Exp. Co., Inc., 341 Ill. App. 8, 92 N.E.2d 794. In Orlicki v. McCarthy, supra, the question arose whether the amendment of 1949, which limited to two years the time within which a dramshop action could be brought, was retroactive and could be applied to a cause of action which arose prior to the time of the amendment. The Supreme Court recognized the general principle that legislation should be prospective in character, that this principle has long-been incorporated into American jurisprudence and that in many cases a constitutional restraint has been imposed on retroactive legislation. "While there is no constitutional restraint in Illinois, a statute relating to construction (Ill. Rev. Stat. 1953, Ch. 131, par. 4) reads as follows:

“No new law shall he construed to repeal a former law, ... as to any act done, . . . any right accrued, or claim arising under the former law, or in any way whatever to affect any . . . act . . . done, ... or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding.”

The Supreme Court, after reviewing the various grounds on which statutes have been retroactively applied notwithstanding the general principle, came to the conclusion that the time limitation should be applied retroactively on two grounds: first, that the legislature so intended, and secondly, that statutes imposing a time limitation are procedural in character. Orlicki v. McCarthy, 4 Ill.2d 342, 354, 122 N.E.2d 513.

It cannot be said that the amendment in question in the instant case is procedural. It is clearly a matter of substance. However, on the intention of the legislature there is much similarity in the instant case to that of the Orlicki case. The language relating to time limitations reads as follows: “Every action hereunder shall be commenced within two years next after the cause of action accrued.” From this language, with particular emphasis on the word “accrued,” the Supreme Court, taking into account the purposes of the amendment, concluded in the Orlicki case that it was the intention of the legislature that the time limitation should be applied retroactively. The amendment which is involved in the instant case reads:

“. . . recovery under this act for injury to the person or property of any person or for loss of means of support resulting from death or injury of any person as aforesaid shall not exceed Fifteen Thousand Dollars.”

A simple reading of this language is that any recovery thereafter to be had in any case in which judgment had not already been rendered should not exceed $15,000. Nor do we see any distinction between the instant case and the Orlicki case when we consider the legislature’s purpose in passing the amendment. In the Orlicki case the Supreme Court said that by the time limitation the legislature intended to eliminate the evil of “prolonged liability ... of dramshop owners and operators, who rarely have any actual knowledge of the events upon which their liability is based.” In the amendment we now have under consideration the purpose of the legislature unquestionably was to limit excessive recoveries under the Act in situations described by the courts as giving a plaintiff decided advantages over the party defending. Meidel v. Anthis, 71 Ill. 241. Applying the same method of interpretation to the wording of the statute as that used by the Supreme Court in the Orlicki case, we are bound to recognize that it was the intention of the legislature that the Act in question should apply retroactively.

The question remains, however, whether this would not be a violation of the saving statute heretofore quoted which provides that no new law should be construed to repeal a former law as to any act done, right accrued or claim arising under the former law. In considering this statute the Supreme Court in the Orlicki case held that its application has been limited to “vested rights.” Wall v. Chesapeake & Ohio R. Co., 290 Ill. 227; People v. Lindheimer, 371 Ill. 367, 21 N.E.2d 318; Board of Education of Waverly Community Unit School Dist. No. 6 v. Nickell, 410 Ill. 98, 101 N.E.2d 438. The Supreme Court said that what constituted a “vested right” defies precise definition but broadly outlined is as follows, p. 347:

“The concept has been referred to as ‘something more than a mere expectation, based upon an anticipated continuance of the existing law. It must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enjoyment of the demand, or a legal exception from a demand made by another.’ Beutel v. Foreman, 288 Ill. 106; People v. Lindheimer, 371 Ill. 367; Wall v. Chesapeake & Ohio Ry. Co., 290 Ill. 227; Board of Education v. Nickell, 410 Ill. 98.”

The Dram Shop Act is unique. As we said in Robertson v. White, 11 Ill.App.2d 177, filed June 26, 1956, it is designed to discipline a legal but ill-favored trade. While it applies a remedy to mitigate- the evils and dangers that flow from the liquor traffic, it is a remedy not necessarily based on fault or negligence. The owner of the premises or anyone who leases them, as well as the dramshop keeper, may become liable even though the sale was made to a customer when he was wholly sober, if the customer thereafter by drinks purchased elsewhere became intoxicated. It is therefore penal in a severe sense in its obvious purpose of subjecting to strict discipline those who embark in the liquor traffic and even those who as lessors or owners permit premises to be so used. It is true that in some cases courts have described the Act, insofar as it relates to damages, as remedial; that is to say, recovery is intended to reimburse for losses sustained by the evils growing out of the liquor traffic. This does not change the essentially disciplinary and regulatory character of the Act. In our opinion no vested interest had accrued in this action at the time of default and judgment. Should we then apply the general principle of anti-retroactivity without regard to the statute?

In Theodosis v. Keeshin, 341 Ill. App. 8, 92 N.E.2d 794, we held that the amendment increasing the amount of recovery in death cases from $10,000 to $15,000 was not retroactive. We there stressed the ancient origin, vitality and soundness of principle which made courts reluctant to apply any statute retroactively. With respect to the argument that the right of action for wrongful death was a statutory creation and therefore the legislature could modify or abolish it retroactively, we pointed out that this theory had its origin in the fallacious application of a doctrine imposed on English law by a casual statement of Lord Ellenborough in a nisi prius decision and that as a matter of fact the action for wrongful death is more firmly rooted in our concept of justice than many actions known to the common law. In this respect it is distinguishable from the Dram Shop Act, however desirable that Act may be as legislative discipline of the liquor traffic.

We had occasion to consider this difference in the recent case of Robertson v. White, 11 Ill.App.2d 177, filed June 26, 1956. That was a dramshop case in which the plaintiff sought to have the court create a presumption of loss where an action is brought in behalf of a spouse or by a next of kin who bears a lineal relationship to the deceased. Such a presumption has been created by the courts in cases brought under the Wrongful Death Act. Dukeman v. Cleveland, C. C. & St. L. Ry. Co. (1908), 237 Ill. 104, 86 N. E. 712; Chicago, P. & St. L. R. Co. v. Woolridge (1898), 174 Ill. 330, 51 N. E. 701; Chicago & Alton R. v. Shannon (1867), 43 Ill. 338; City of Chicago v. Scholten (1874), 75 Ill. 468; Wilcox v. Bierd (1828), 330 Ill. 571, 162 N. E. 170; Howlett v. Doglio (1949), 402 Ill. 311, 83 N.E.2d 708. A similar contention was made in the Howlett case- and the Supreme Court there distinguished between the language of the Wrongful Death Act, “pecuniary injuries,” and the language of the Dram Shop Act, “loss of means of support.” The court also pointed ont that the Dram Shop Act though remedial in purpose is penal in character, and referred to the language in Meidel v. Anthis, 71 Ill. 241, where the Dram Shop Act was described as “highly penal in its character and introducing remedies unknown to the common law, in which the person prosecuting had decided advantages over the party defending.” We held in Robertson v. White, supra, that no presumption such as applies in cases under the Wrongful Death Act should be imported into the Dram Shop Act. The relevancy to the instant case of the language used in the cases referred to lies in this — that where the courts might be zealous in protecting a litigant against divestiture by statute of all or a portion of a claim firmly rooted in our concepts of justice, they will not apply the same zeal to the application of a statute of penal import, regulatory and disciplinary in character.

The recent history of laws with respect to the liquor traffic shows a wide range of public policy passing from tolerance to complete prohibition and then a return to tolerance with a pressure for regulation. Nothing is to be found in our history comparable to the prohibition amendment to the federal constitution, followed within a few years by another amendment repealing the former. This ambivalent attitude toward the use of alcoholic liquors is not confined to our own time or country. It appears in religious ritual, law and literature throughout the ages. Sometimes there is vehement denunciation and at other times devotion, poetic and rapturous. Perhaps the greatest of odes to the fermented product is the Rubaiyat of Omar Khayyam, who lived in a Mohammedan country where the prevailing religion prohibited and to this day still prohibits its use. In such a volatile and unstable situation courts can do no more than interpret as nearly as possible the spirit and word of the prevailing written law.

We have considered the argument strongly urged upon us by plaintiff, that decisions in compensation cases and particularly that of Stanswky v. Industrial Commission, 344 Ill. 436, 176 N. E. 898, are controlling in the instant case. It is argued that workmen’s compensation cases, like dramshop cases, are statutory-proceedings and therefore are especially pertinent on the question of retroactivity. However, we have rested our decision in the instant case upon the regulatory, disciplinary and penal character of the Dram Shop Act which we think is the sound basis for a distinction between that Act and other legislation.

There is pending in this court an appeal by parties interested in the premises in which the tavern is located from a decree imposing a lien on the premises for the amount of the judgment. That case, it appears to us, is entirely dependent upon the outcome of the instant case and will therefore be held pending such outcome.

The judgment of the trial court is reversed and the cause is remanded, with directions to enter a judgment for $15,000 unless plaintiff shall within 30 days enter a remittitur in this court of $10,000, or unless all parties shall within 30 days stipulate to the entry of a judgment in this court for $15,000 without prejudice to the right of any party to petition the Supreme Court for leave to appeal.

Judgment reversed and cause remanded with directions, unless remittitur is entered or stipulation is made within 30 days, as before stated.

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


text:
    Paramount Paper Tube Corporation, Plaintiff-Appellee, v. Capital Engineering & Manufacturing Company, Rudolph Martin, Individually, and Center Tool & Manufacturing Co., Inc., Defendants-Appellants, and Eugene Doven, Defendant.
    Gen. No. 46,907.
    First District, Second Division.
    September 25, 1956.
    Released for publication November 27, 1956.

      Frederick A. Smith, of Chicago, for defendants-appellants; Albert Langeluttig, and Jack Joseph, of Chicago, of counsel.
    Herldon H. Bowen, of Chicago, for plaintiff-appellee; Albert E. Jenner, Jr., Thomas P. Sullivan, and Johnston, Thompson, Raymond, Mayer & Jenner, all of Chicago, of counsel.
   JUDGE SCHWARTZ

delivered the opinion of the court.

Plaintiff brought this suit to recover damages for violation of the Illinois Bulk Sales Act and to impose a lien on goods transferred in violation of the Act.

On February 11, 1954, the three defendants-appellants, whom we will call defendants, were defaulted for failure to file answer, and judgment was entered against them in the sum of $3,182.06. No execution was served until August 11, 1955. On August 17, 1955, defendants filed a verified petition seeking to set aside the judgment. A motion to dismiss the petition was filed by plaintiff September 16, 1955. On December 6, 1955, a petition for change of venue presented on behalf of defendant Martin, concurred in by the corporate officers, was denied and an order was entered denying the prayer of the defendants’ petition to vacate the decree entered February 11, 1954. Defendants appeal from the judgment and orders before mentioned.

The primary question involved is whether the petition to set aside the default judgment states a case for relief. For our purpose the facts well pleaded must be accepted as true. After the complaint was filed the parties stipulated to an extension of time for the filing of the answer to January 15, 1954. Defendants did not file their answer on time. On February 9, 1954, the attorney for defendants received notice that plaintiff would appear in court February 10, at 10 a.m. and move for judgment by default. Upon appearing in court an order was entered requiring defendants to answer by 10 a.m., February 11, 1954. On February 11, defendants’ attorney handed answers on behalf of defendants to the clerk of the court at or before 10 a.m. They were stamped by the clerk as filed at 10:16 a.m. Copies were mailed to plaintiff’s attorney. On the same day, on plaintiff’s motion, the court entered an order that the cause had come on for hearing, due notice having been given to all parties, and that defendants had failed and refused to answer as directed by the court and were in default and thereupon the court entered the judgment referred to.

It was not until one year later, February 21, 1955, that plaintiff caused an execution to issue but did not place it with the sheriff. August 9, 1955, a year and a half after the entry of the judgment, another execution was issued and was served on defendants. August 17, 1955, defendants presented their petition before referred to. In addition to the allegations referred to, the petition alleges that plaintiff failed to give notice that it would move for a default judgment February 11, 1954, but represented to the court that due notice had been given and that defendants had failed to file their answers and that those misrepresentations induced the court to enter the default decree. The petition also alleges that neither defendants nor their counsel knew of the entry of the default decree until August 11, 1955, when execution on the judgment was first served on defendants, and they aver they have a meritorious defense to the action.

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

We feel that the instant case is stronger than the case of Ellman v. De Ruiter, supra. In the instant case answers were presented before or at 10 a.m. and stamped filed within 16 minutes after the time set for the filing thereof and, according to the averments of the petition, the clerk had the answers in his hands at the opening of court. Those answers were on file at the time plaintiff was moving for a default and at the time the court entered the order of default or in any event but a few minutes elapsed before the clerk had affixed his filing stamp thereto. It also appears that copies of the answers were mailed to plaintiff’s attorney. Yet more than a year elapsed before he sued out an execution and when he did so, he did not put it in the hands of the sheriff but waited six months and then sued out another execution which he had served. Not until then were defendants aware of the fact that judgment by default had been taken against them. Under ordinary circumstances a long passage of time following the entry of a judgment might put upon defendants the responsibility of checking the files or examining the records to see what had been done. However, an extraordinary situation exists in this county due to the congestion of the court calendars and the long delay in the trial of cases resulting therefrom.

Other points are made by plaintiff' and cases cited in support, but they are so inconsonant with the views expressed by the court in the Ellman case that we can no longer consider them persuasive. The petition stated a case for the vacation of the judgment, and the motion to dismiss should be overruled.

As the motion for change of venue may arise again, we feel we should decide that question. In the order denying the change of venue it is recited that the cause .had theretofore been pending under advisement on the petition to vacate and that argument of counsel had been heard and considered at length by the court. All this occurred prior to the time of the motion for change of venue. The court properly denied that motion. It is an abuse of the Venue Act to attempt to use it to avoid an expected adverse ruling. Commissioners of Drainage Dist. No. 1 v. Goembel (1943), 383 Ill. 323, 50 N.E.2d 444; Richards v. Greene (1875), 78 Ill. 525; Flassig v. Newman (1943), 317 Ill. App. 635, 640, 47 N.E.2d 527.

The judgment is reversed and the cause is remanded with directions to the trial court to overrule the motion to dismiss the petition to vacate and to take such further proceedings as are consistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

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


author: JUDGE McCORMICK

text:
    Tobias Sitnick, Appellee, v. Hyman Glazer, Appellant.
    Gen. No. 46,896.
    First District, Second Division.
    September 25, 1956.
    Rehearing denied October 16, 1956.
    Released for publication November 27, 1956.

      Arnold Nagler, of CMcago, for appellant.

      Rappaport, Clorfene & Rappaport, of Chicago, for appellee; Hamilton Clorfene, of Chicago, of counsel.
   JUDGE McCORMICK

delivered the opinion of the court.

The Municipal Court of Chicago in a trial heard by the court without a jury in an action based on the breach of a provision of a dissolution of partnership agreement found for the plaintiff and entered judgment for the sum of $1,937.13, from which judgment this appeal is taken.

The lawsuit grew out of a dissolution of a partnership between Tobias Sitnick, plaintiff, and Hyman Glazer, defendant, which had operated under the firm name of Aleo Tension-Seal Window Company. The business which the partnership conducted was the assembling and the sale at wholesale and retail of storm windows. The parties entered into a partnership dissolution agreement on March 25, 1953 which, among other things, provided that the plaintiff sold to the defendant all his right, title and interest in the partnership assets, which included thirteen dies used for the production and stamping of component parts used in the assembling of storm windows. Two of the thirteen dies are involved in this lawsuit. The dissolution agreement provided: The first party [Sitnick] “shall have the right to use all- the dies of Aleo Tension Seal Window Co. for the production of component parts of the storm windows and doors in the operation of any future business conducted by the first party.” All thirteen dies were in the possession of fabricators. The partnership, while it was in existence, had obtained the parts from the same fabricators in whose possession the dies were.

After the dissolution of the partnership all thirteen of the dies were used to stamp parts ordered by the plaintiff. The plaintiff had requested the fabricator who had possession of the two dies herein involved, Anson Tool and Die Co. (hereafter referred to as An-son), to make certain changes in one of the dies, which Anson refused to do without the consent of the defendant. The plaintiff tried to pick up the two dies, which were at Anson’s shop, for the purpose of having them used at other fabricators. When defendant learned of this he instructed his attorney to advise the plaintiff that the two dies in question could only be used for producing component parts which might be ordered from Anson. The plaintiff thereupon, through his attorney, made a formal demand on the defendant, through his attorney, for the use of the two dies to be given by plaintiff to any fabricator he wished to employ, and further notified the defendant that in the event the plaintiff was not permitted to so take and use the said dies he would have other dies made and would hold the defendant accountable for the cost of making them. Several other demands were made for the dies, but at no time was the plaintiff permitted to remove the dies from the possession of Anson. The plaintiff then had other dies made, one of which varied from the dies. in the possession of Anson. The plaintiff thereupon brought this suit against the defendant setting up the contract and alleging a breach, to which defendant filed a defense, which was replied to by the plaintiff. A counterclaim was filed by the defendant which was answered by the plaintiff. At the trial the court found in favor of the plaintiff on his statement of claim and entered judgment thereon. The court also found in favor of the plaintiff on the counterclaim, but no point is made upon that finding here.

The defendant contends that the court in construing the contract must, if possible, ascertain and give effect to the mutual intention of the parties, and since prior to the time the dissolution agreement was entered into the dies had been used only through the fabricators in whose possession they were, the parties at the time they entered into the contract must have meant by the words “use all the dies” therein contained that the dies could be used by the plaintiff through Anson and could not be removed from Anson’s possession for the purpose of having parts made by other fabricators. However, the rule is that where a contract has been reduced to writing, which purports upon its face to be an expression of the whole agreement between the parties, the intention of the parties can only be determined from the language used in the instrument. In other words, the court is bound to determine the intention of the parties within the four corners of the instrument and from the words used therein, and effect must be given to the plain and obvious import of the language so used if unambiguous. Green v. Ashland Sixty-Third State Bank, 346 Ill. 174. Here the agreement was complete and not ambiguous. The ordinary meaning of the word “use” is “to convert to one’s service; to avail oneself of; to employ” (Webster’s New International Dictionary, 2nd ed.). If the parties had intended that a limitation should be imposed on that meaning, they could have easily so stated. The mere fact that the parties had previously, while acting as a unit, utilized the service of certain fabricators does not require that such practice be read into and become an integral part of the agreement unless such intention was therein clearly expressed.

The defendant also contends that there was a general custom and usage in the tool and die industry that dies are maintained and kept in the possession of the fabricators who stamp the parts as ordered by the customer, and that in some instances certain dies which are created by the fabricator cannot, on the order of the customer, be removed from his possession by the customer unless the fabricator is paid for the cost of producing the die, plus a reasonable profit. “The general rule is that a custom or usage which is repugnant to the terms of an express contract is not permitted to operate against it and evidence of such custom or usage is inadmissible, for, while usage may be admissible to explain what is doubtful, it is never admissible to contradict what is plain.” El Reno Wholesale Grocery Co. v. Stocking, 293 Ill. 494. In this case, as we pointed out, the contract is not ambiguous ; hence a custom or usage, if any such existed, could not change the integrated contract. Besides, the evidence with reference to the custom or usage was that where the fabricator makes the die he has the right to retain it until it is paid for in full and any parts made by the die must be stamped by the fabricator, but where a fabricator holds a die which has been fully paid for, either the owner or anyone with his permission can withdraw the die. The two dies which were in the possession of Anson had been fully paid for. Even if the custom and usage was applicable, here it would not operate to restrict the right of the plaintiff to withdraw the two dies in question from Anson’s possession for the purpose of having parts made by other fabricators, and under the disputed clause in the agreement the plaintiff would have the full right to the use of the dies through any fabricator whom he might wish to employ.

The trial court allowed as damages the cost to plaintiff of acquiring the new dies. The defendant contends that the true measure of damages would be such damages as would fairly and reasonably be considered as arising naturally from the breach, and that the cost of acquisition of new dies would not fall within that category. In 25 C.J.S. Damages, sec. 24, it is said:

“As a general rule . . . the damages to which one party to a contract is entitled because of a breach thereof by the other are such as arise naturally from the breach itself, or such as may reasonably be supposed to have been within the contemplation of the parties at the time of making the contract as a probable result of a breach thereof. . . .

“In the application of the rule it is held that the parties will be presumed to have contemplated that the party injured by the breach of the contract would sustain such damages as would fairly and substantially, in the usual course of things, result from such breach, in the light of all the facts known or which should have been known to them ....

“. . . It is not required that the parties shall have considered the consequences at the time of making the contract, but the consequences must be such as the parties may fairly be supposed to have considered, or at least would have considered as flowing from a breach of the contract if they had then been informed of all the facts.”

Here the defendant should have known that the natural and reasonable consequence of his refusal to permit the unrestricted use of the two dies by the plaintiff would be the construction of new dies, and in fact, before there was an irrevocable breach of the agreement, he was so informed by the letter of the plaintiff. Under all the circumstances the court applied the proper rule in determining the damages suffered by the plaintiff.

At the trial the plaintiff, in order to prove the customary and reasonable value of the dies made for him, introduced receipted bills together with canceled checks used in payment thereof. The rule is that where a receipted bill is introduced it is sufficient prima facie proof that the charges were fair and reasonable. Sunbeam Beverage Co. v. Cunningham, 242 Ill. App. 401; Wicks v. Cuneo-Henneberry Co., 319 Ill. 344; Sears, Roebuck & Co. v. Mears Slayton Lumber Co., 226 Ill. App. 287. The only evidence in the record with reference to the cost of the original dies is testimony on the part of the plaintiff and the defendant giving widely variant figures as to what was paid four years before for the dies in question. The court could properly take judicial notice that the price of any fabricated metal four years ago differs to a considerable extent from its price today. The defendant did not see fit to offer any evidence from die makers concerning the reasonable price of such dies today. In any case, this question was not properly before the trial court inasmuch as the defendant, after a bill of particulars was filed by order of court stating the cost of the two dies, failed in his defense to raise the issue of the reasonableness of the price. Unless such issue is raised by the pleadings it should not be considered by the court. Sears, Roebuck & Co. v. Mears Slayton Lumber Co., supra.

The defendant filed a motion to vacate the judgment based upon newly discovered evidence, which motion was to the effect that one of the dies which was constructed for the plaintiff differed materially from the die owned by defendant and which was used by the parties when they were partners, and because of such difference the cost would be greater than if a similar die had been constructed, and that the plaintiff had approached the die maker seeking to have the original die owned by the defendant altered, which the die maker refused to do without permission. The motion did not attempt to make any showing whatsoever of due diligence, nor is it apparent why such evidence could not have been obtained by the defendant if he had been diligent at the time of the original trial. At the time of the trial defendant was not unaware of the difference in the two dies. On direct examination he testified concerning the difference in the stampings made by the dies, and a witness for the defendant testified concerning the request of the plaintiff made to Anson to change the dies. Defendant’s exhibits 1 and 2 were stampings made by the dies, 1 by the new die and 2 by the old. There is testimony by the plaintiff that the change sought to be made by him could have been effectuated by the use of an insert, and that the die would not be changed by such insert since it was removable. Furthermore, there is no testimony in the record that the cost of producing plaintiff’s die was increased because of the change. It is not apparent that the facts set out in the petition seeking to overturn the judgment would have added anything material to the evidence originally considered by the trial court. It was merely cumulative. The petition also raised an issue with reference to the reasonableness of the cost of making the dies in question. The objection that the defendant failed to raise such issue in his pleadings could properly have been considered by the trial court in disposing of this motion. In an application for new trial on the ground of newly discovered evidence, “the burden is on the applicant to rebut the presumption that the verdict is correct and the evidence must meet the following requirements: First, it must appear to be of such a conclusive character that it will probably change the result if a new trial is granted; second, it must have been discovered since the trial; third, it must be such as could not have been discovered before the trial by the exercise of due diligence; fourth, it must be material to the issue; and, fifth, it must not be merely cumulative of the evidence offered on the trial.” People v. Buzan, 351 Ill. 610.

The judgment of the Municipal Court of Chicago is affirmed.

Judgment affirmed.

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