author: MR. PRESIDING JUSTICE BARDENS

text:
    In the Matter of Petition of John A. Balota and Beulah Balota, His Wife, to Adopt Michele Jean Handlon, a Minor Child. John A. Balota and Beulah Balota, His Wife, Petitioners, v. Michele Jean Handlon, a Minor Child, Gordon Gene Handlon and Helen Dean Handlon, Defendants.
    Term No. 55-M-2.
    Fourth District.
    October 3, 1955.
    Released for publication October 24, 1955.

      Snyder E. Herrin, of Herrin, and August L. Fowler, of Marion, for petitioners-appellants.
    No brief filed for appellees.
   MR. PRESIDING JUSTICE BARDENS

delivered the opinion of the court.

This is an adoption case. The trial court denied the petition after a contested hearing, and petitioners bring this appeal'contending that the court’s finding was not supported by any competent evidence.

From the testimony, it appears that the petitioners, husband and wife, ages 35 and 27, respectively, live in St. Louis, Missouri, and have an income of $400 a month. Petitioners have been married since October 13,1951, and have found that they cannot have children of their own. An aunt of Mrs. Balota, who resides in Herrin, Illinois, knew of petitioners’ desire to adopt a child. On March 30, 1954, in response to a request of defendant, Helen Dean Handlon, mother of the three-months’ old child sought to be adopted, the aunt called the Balotas and told them the child could he taken by them. They drove to Herrin, confirmed the information the aunt had given, went to the office of Attorney Snyder E. Herrin and a paper was signed by Mrs. Handlon giving petitioners permission to take the child. They returned to St. Louis the same evening and had the child until the date of hearing on the petition for adoption on October 20, 1954. The evidence indicates that the child was given good care, and that considerable money was spent for furniture, food, clothing and medical care. Naturally, petitioners developed a love for the child.

The petition for adoption was filed April 16, 1954, and entries of appearance and consents to adoption, duly executed and acknowledged before the clerk, by both the mother and father, were filed on April 17,1954,

The court continued the cause from time to time until October 20 and appointed a welfare agency in St. Louis to make an investigation. The agency subsequently filed a report, which is not in the record and upon which no evidence was produced. Illinois Revised Statutes 1953, Chapter 4, Paragraph 3—1 [Jones Ill. Stats. Ann. 19.012(7)]. No other pleadings were filed in the cause and thus no issues were-made up. However, defendants appeared at the hearing with their counsel and cross-examined petitioners’ witnesses and testified themselves. The defendants’ testimony was directed to the claim that their consents were obtained under fraud and duress.

At the conclusion of the hearing, the court made its jurisdictional findings, including the filing of consents by the defendants; waived the statutory requirement that the child reside with petitioners for a period of six months immediately preceding the filing of the petition; found that the natural parents had abandoned the child prior to the filing of the petition; and further found, “That the. petitioners’ evidence does not, in the opinion of the Court, make a case justifying the entry of an order in accordance with the prayer of said Petition, and that, accordingly, said Petition should be denied.” The court then ordered the petition denied, made the child a ward of the court and ordered petitioners to surrender the child immediately to a Mrs. Virgil Ardery, 901 South Mechanic Street, Marion, Illinois, who was given the care and custody until further order of the court.

Petitioners appealed, filed their record, abstract, brief and argument. No brief and argument was filed by appellees.

The statute on adoption at Chapter 4 in Paragraph 4—1, Illinois Revised Statutes 1953 [Jones Ill. Stats. Ann. 19.012(14)], sets out the findings required to be made by the trial court in adoption cases. Subparagraph 5 of paragraph 4—1 reads, in part, as follows:

“If the court further finds from the evidence that the allegations of the petition are true, and that the petitioner is of sufficient ability to bring up the child and furnish suitable nurture and education for the child and that such child has resided in the home of the petitioner at least six months immediately preceding the filing of the petition; unless for good cause specifically shown of record the court shall waive such requirement of residence and that it is fit, proper and for the best interest of the child that such adoption should be made, a decree shall be entered, setting forth the facts so found by the court and ordering that from the date of the decree the child shall, to all legal intents and purposes, be the child of the petitioner, and may decree that the name of the child be changed according to the prayer of the petition.”

As stated before, the only contest in the case involved the validity of the consents. The statute provides that the consents shall be irrevocable unless obtained by fraud or duress and “a court of competent jurisdiction shall so find.” Illinois Revised Statutes 1953, Chapter 4, Paragraph 3—7 [Jones Ill. Stats. Ann. 19.012(13)]. The burden on this question rested upon those asserting duress or fraud. Stoltze v. Stoltze, 393 Ill. 433, 66 N.E.2d 424. The lower court found no duress or fraud on this issue.

We have reviewed the evidence. The petitioner, Mr. Balota, was age 35 and Mrs. Balota, age 27. They were married in 1951. They had found they could not have children of their own. They are church-going people. Mr. Balota has an income of four hundred dollars a month. He testified that he changed his employment after they were given custody of the child because, as he stated, “I had this offer of bettering myself and with the baby I saw I needed to be better.” No evidence was introduced that reflected unfavorably upon the petitioners. The lower court found that the parents had abandoned the child and there did not appear to be others seeking her or offering a home for her. The best interests of the child, therefore, would be with those who have given her nurture, care, and love and who apparently can be depended upon to continue to do so.

In our judgment, the finding of the court below that petitioners’ evidence does not make out a case is against the manifest weight of the evidence. We find that the petitioners are of sufficient ability to furnish suitable nurture and education for said child and that it is fit, proper, and for the best interests of the child that such adoption should be made.

The order of the lower court denying adoption is reversed and the cause is remanded with directions to make the finding in petitioners’ favor and allow the adoption and change of name as prayed.

Reversed and remanded with directions.

CULBERTSON and SCHEINEMAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Bridgeport Township High School District No. 3-12, Township 3 North, Range 12 West, Lawrence County, Illinois, Plaintiff-Appellant, v. Henry Shank et al., Defendants-Appellees. Bridgeport Township High School District No. 3-12, Township 3 North, Range 12 West, Lawrence County, Illinois, Plaintiff-Appellant, v. Paul Burbank et al., Defendants-Appellees. Bridgeport Township High School District No. 3-12, Township 3 North, Range 12 West, Lawrence County, Illinois, Plaintiff-Appellant, v. J. C. Piper et al., Defendants-Appellees. Bridgeport Township High School District No. 3-12, Township 3 North, Range 12 West, Lawrence County, Illinois, Plaintiff-Appellant, v. Johnnie Fearheiley et al., Defendants-Appellees.
    Term Nos. 55-M-8, 55-M-9, 55-M-10 and 55-M-11, consolidated.
    Fourth District.
    October 3, 1955.
    Released for publication October 24, 1955.

      Gosnell & Fitzpatrick, of Lawrenceville, for plaintiff-appellant; Maurice E. Gosnell, of Lawrenceville, of counsel.
    Brian & Wilson, of Toulon, and Richard S. Simpson, of Lawrenceville, for defendants-appellees; J. E. Richards, of Toulon, of counsel.
   MR. PRESIDING JUSTICE BARDENS

delivered the opinion of the court.

In a proceeding under the Administrative Review Act, the Circuit Court of Lawrence County affirmed four decisions of the County Board of School Trustees detaching four tracts of land from plaintiff high school district and attaching them to Sumner High School District. On appeal to this court, the four cases have been consolidated since there are common questions of fact and law raised in the various petitions. The case involving what is known as the Shank petition also raised additional issues which will be separately treated. This appeal is prosecuted by the school district from which territory was detached.

Bridgeport Township High School District and Sumner Township High School District are both in Lawrence County. Four petitions for detachment of territory from Bridgeport and attachment of same to Sumner were filed with the County Board of School Trustees on August 20, 1952, under the provisions of Article 4B of the School Code, Illinois Revised Statutes, Chapter 122, Paragraph 4B. In accordance with the requirements of Paragraph 4B-4 [Jones Ill. Stats. Ann. 123.754B(4)], the secretary of the County Board of School Trustees gave notice to plaintiff of the hearing on said petitions before the County Board of School Trustees set for January 12, 1953. At such hearing, plaintiff appeared and by counsel examined witnesses and presented testimony. In accordance with the requirements of Paragraph 4B-4, the following exhibits were received into evidence: a map showing the districts involved, a report of the financial and educational condition of the two districts and the probable effect of the proposed changes. Various witnesses testified as to the facilities and curriculum of the two schools and accessibility from the areas involved in the petitions. It appears that the Sumner school is a new building with facilities for double its present enrollment, and that attendance at Bridgeport would require about 12 miles per day additional travel for pupils from the petitioning areas. On the other hand, it appeared that more units of work were offered by Bridgeport Township High School. The evidence further revealed that under an agreement which has been in existence for some time, children from the petitioning territories, though residing in Bridgeport District, chose to attend Sumner Township High School. No residents of the territories involved opposed the petitions. On February 9, 1953, a further meeting of the Board was held at which time the petitions were voted upon and granted by the Board.

Upon being orally notified of the action of the School Trustees, plaintiff filed its complaint in the Circuit Court under the Administrative Review Act, Illinois Revised Statutes, Chapter 110, Paragraph 264 [Jones Ill. Stats. Ann. 104.094(1)], asking that the action of the County Board of School Trustees be reversed and the territory restored to Bridgeport Township High School District. The principal errors relied upon are that the order of the County Board was contrary to the manifest weight of the evidence and that by reason of certain irregularities in the proceedings, the County Board of Trustees was without jurisdiction in the matter.

Section 274 [Ill. Rev. Stats. 1953, ch. 110, § 274; Jones Ill. Stats. Ann. 104.094(11)] of the Administrative Review Act provides that the hearing on review, “shall extend to all questions of law and fact presented by the entire record before the Court. . . . The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct.” In Harrison v. Civil Service Commission of Chicago, 1 Ill.2d 137, 115 N.E.2d 521, these provisions were analyzed and were construed to mean that on review the order of the administrative agency must stand unless against the manifest weight of the evidence. The record before us reveals that substantial evidence in compliance with the requirements of Paragraph 4B-4 was presented to the County Board of School Trustees at the meeting of January 12, 1953. Various residents of the territories testified as to the transportation advantages in attending Sumner High School, which is of some significance in assessing the educational welfare of the children involved. Of greater significance is the fact that children in the petitioning territories do, in fact, attend Sumner High School under agreement of the two school districts. We cannot assume the educational welfare of these children was neglected by their attending Sumner High School or such situation would not have been permitted to exist by the school boards of the two districts. We must conclude that the County Board of School Trustees had substantial evidence upon which to base its order transferring the petitioning territory to Sumner to conform with the established attendance pattern.

The next contention of appellant concerns certain alleged irregularities in procedure before the administrative board. Specifically, these involve (1) the sufficiency of notice of meetings to members of the board (2) the fact that voting was by secret ballot; and (3) that one board member who voted had not attended the January 12th meeting where evidence was presented. These matters are not properly before this Court. It must be observed that the order entered on February 9, 1953, granting the petitions to transfer territory is complete and proper on its face. Appellant contests the recitations in such order but only by reference to portions of the record which are not abstracted. Courts are not required to search portions of the record not abstracted to ascertain a basis for reversing the proceeding appealed from. People ex rel. Rose v. Craig, 404 Ill. 505, 89 N.E.2d 409.

Apart from this reason, however, and in a more general connection, it must be observed that the County Board of School Trustees as an administrative agency is not held to the refined legal standards of procedure that exist in courts of record. The Administrative Review Act itself provides that — “(2) Technical errors in the proceedings before the administrative agency or its failure to observe the technical rules of evidence shall not constitute grounds for the reversal of the administrative decision unless it appears to the trial court that such error or failure materially affected the rights of any party and resulted in substantial injustice to him.” In holding hearings provided for by Paragraph 4B-4 of the School Code, the Board is acting as an arm of the legislature and may order the detaching of territory from school districts after it has informed itself of pertinent matters in accordance with the mandate of the legislature in Paragraph 4B-4. Pritchett v. County Board of School Trustees of White County, 5 Ill.2d 356, 125 N.E.2d 476. The Supreme Court has recently held in the Pritchett case that the discretion vested in county boards of school trustees under the statute is not an unlawful delegation of legislative power. Proceedings under 4B-4 before the administrative agency are, therefore, not subject to attack if substantial compliance with the legislative mandate has been shown even though irregularities in procedure may have occurred. Here, there is no showing by appellant that the ultimate result of the proceedings was occasioned by the alleged errors in procedure.

Another error urged by appellant concerns the removal of one trustee from the township in which elected to a township which already had a legally elected and qualified trustee. We find no evidence on this point. However, it is apparent that the trustee in question was at least a de facto member of the Board and his capacity as a de jure trustee could be properly attacked only by a quo warranto proceeding. Mann v. Downers Grove Sanitary Dist., 281 Ill. App. 412, 420; Howard v. Burke, 248 Ill. 224, 93 N. E. 775.

A final error common to all petitions concerns the Circuit Court’s denial of appellant’s motion for additional record which came after the Circuit Court had heard arguments and taken the cause under advisement. This motion sought to have made a part of the record minutes of board meetings of January 5 and January 12. We feel that the trial court did not abuse its discretion in denying said motion. The additional evidence sought bore only on alleged irregularities in procedure and apparently erroneous recitation in the final order which, for reasons set forth above, could not change the ultimate result.

We conclude, therefore, that the Circuit Court was correct in affirming the order of the County Board of School Trustees in the Fearheiley, Piper & Burbank petitions.

With reference to the Shank petition, a further error is alleged. The hearing on the petitions before the Board took place on January 12, 1953. On January 8, 1953, a petition was filed with the Board withdrawing three signatures from the Shank petition, which reduced the remaining signatures to less than the required number. This withdrawal petition recited that petitioners withdrew their names from the petition for detachment of the Shank territory (the legal description being set forth in full), and requested that the Board leave said territory as part of Bridgeport Township High School District. The Board, nonetheless, proceeded to hearing on the Shank petition along with the other three. On February 9,1953, prior to taking a vote on the petitions and ordering detachment of the territories, two of those withdrawing their signatures on January 8,1953, filed a petition with the County Board withdrawing their names from the withdrawal petition and reinstating their signatures to the original Shank petition. The February 9 petition recited that petitioners were induced to sign the withdrawal petition through misrepresentation and fraud.

Appellant contends that the Board had no power to proceed with the hearing on the Shank petition on January 12 since it contained fewer than the required number of signers after giving effect to the withdrawal petition. Appellee urges, on the other hand, that the signers had the right to withdraw or reinstate their signatures at any time prior to final action of the Board. It is clear that the only method of invoking the power of the County Board of Trustees is by filing of a petition in conformity with the statute. It is incumbent upon the Board therefore to first determine in any case whether the petition meets the prescribed conditions. If this determination is in the negative the power of the Board to proceed further on the petition is lacking. In the instant case, the Board took the withdrawal petition under advisement and proceeded with the hearing. This was erroneous since it was admitted that giving effect to the withdrawal, the petition lacked the necessary signatures. Commencement or continuation of the hearing must abate until the genuineness and effect of the withdrawal is determined. Appellee contends, apparently, that the Board had the right to reserve the question of the validity of the petition to the end of the proceeding, and that reinstatement of previously withdrawn signatures restoring the required number be given retroactive effect. In Crocher v. Abel, 348 Ill. 269, cited by the appellee, it appears the withdrawal and reinstatement occurred after the hearing had validly commenced and that there was a duly subscribed petition at the inception of the hearing. People v. Oakwood, 290 Ill. 45, presents a somewhat analogous situation of withdrawal of signatures before hearing and subsequent reinstatement sufficient to restore jurisdiction. The Supreme Court there upheld the action of the agency in denying the petition on the ground of lack of jurisdiction. Orderly procedure requires that the issue of the agency’s power to entertain the petition be determined prior to hearing of the merits.

We therefore conclude that the County Board of School Trustees did not have the power to proceed on the Shank petition. The order of the Circuit Court affirming the order of the Board in the Shank petition is therefore reversed. In all other respects the Circuit Court order is affirmed.

Judgments in Burbank, Piper, and Fearheiley cases affirmed. Judgment in Shank case reversed.

CULBERTSON and SCHEINEMAN, JJ., concur.


text:
    Melvin Babington, Plaintiff-Appellant, v. County Board of School Trustees of Franklin County, Illinois et al., Defendants-Appellees.
    Term No. 55-M-18.
    Fourth District.
    October 3, 1955.
    Released for publication October 24, 1955.
    Clayton & Clayton, of Johnston City, and Layman & Johnson, of Benton, for plaintiff-appellant.
    Lewis & Lewis, of Benton, for defendants-appellees; Loren E. Lewis, and Wayne T. Lewis, both of Benton, of counsel.
   MR. PRESIDING JUSTICE BARDENS

delivered the opinion of the court.

This is an appeal from the Circuit Court of Franklin County allowing the defendants’ motion to dismiss plaintiff’s complaint filed under the Administrative Review Act. The correctness of the trial court’s ruling rests upon a determination of who are necessary parties to review of an Administrative Agency’s order.

A petition to detach territory from a school district in Williamson County was filed with the County Board of School Trustees of Franklin County signed by 75 residents of the affected territory. After due notice and hearing, the Petition was granted. Subsequently appellant, a resident of the Williamson County School District filed his complaint in the Circuit Court of Franklin County for review under the Administrative Review Act making defendants the school districts involved and the County Board of School Trustees of Franklin County. Appellee’s motion to dismiss the complaint contended that under the Administrative Review Act the 75 signers of the Petition were necessary parties defendant on review before the Circuit Court. The trial court agreed with defendant’s contention and dismissed the complaint.

Section 8 of the Administrative Review Act, Illinois Revised Statutes, Chapter 110, Paragraph 271 [Jones Ill. Stats. Ann. 104.094(8)], provides:

“In any action to review any final decision of an Administrative Agency, the Administrative Agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the Administrative Agency shall be made defendants.”

This provision was construed by the Supreme Court in Winston v. Zoning Board of Appeals of Peoria County, 407 Ill. 588, 95 N.E.2d 864, wherein the Court said:

“The requirement that all adverse parties of record to the administrative proceeding shall be made defendants on review is mandatory and specific and admits of no modification. The act being an innovation and departure from the common law, the procedures it establishes must be pursued in order to justify its application.” Appellant contends that the 75 petitioners were not “parties of record” within the meaning of the statute. Under the applicable provisions of the School Code, the 75 residents of the territory sought to be detached, signed the Petition, contributed to the expense of the proceedings before the County Board of School Trustees, and participated in the hearing. Certainly, the residents of the territory who initiated the proceeding had a continuing interest in the review of the County Board’s order. Their position is essentially the same as plaintiffs in an ordinary law suit, for they are asking a tribunal to take some action they believe is beneficial; action that would not be taken except upon petition therefor. It is clear, therefore, that the signers of such Petition are parties of record within the accepted meaning of such phrase. No authority for a contrary conclusion has been presented to us. Appellant, however, urges that out of reasons of convenience, the signers of the Petition should be regarded as before the Court by virtue of the equitable doctrine of representation. Without determining whether any of the parties on review served by summons did, in fact, have an exact identity of interest with the residents of the territory, it must be observed that review of an Administrative Agency’s decision is a wholly statutory proceeding. The legislature provided no such representative action. It did, however, provide in Paragraph 6 of the Administrative Review Act [Ill. Rev. Stats. 1953, ch. 110, § 269; Jones Ill. Stats. Ann. 104.094(6)], a simplified and less expensive means of service of summons through the use of registered mail. Prom this it may properly be inferred that the legislature was aware of the inconvenience and expense of making numerous parties defendants on review and thus permitted a simplified method of bringing them before the Circuit Court. Having thus considered the problem of service of summons on necessary parties on review, and adopted a variation from the usual procedure, the legislature has negatived any such departure from the ordinary rules as that contended for by appellant.

Consequently, it must be concluded that under the statute and in accordance with ordinary legal concepts, the signers of the Petition became parties of record who, under the Administrative Review Act, were necessary parties to review of the County Board of School Trustees’ action.

Judgment affirmed.

CULBERTSON and SCHEINEMAN, JJ., concur.


text:
    Bellevue Realty Company, Inc., Plaintiff-Appellee, v. School District No. 111, Defendant-Appellant.
    Term No. 55-M-19.
    Fourth District.
    October 3, 1955.
    Released for publication October 24, 1955.

      F. E. Merrills, of Belleville, for defendant-appellant.
    Jones, Ottesen & Fleming, of Belleville, for plaintiffappellee.
   MR. PRESIDING JUSTICE BARDENS

delivered the opinion of the court.

This is a proceeding under the School Code (Ill. Rev. Stat. 1953, Chap. 122) for the detachment of school territory. The Circuit Court of St. Clair County reversed the order of the County Board of School Trustees denying the petition and defendant school district appeals.

Paragraph 4B-4 [Jones Ill. Stats. Ann. 123.754B(4)] of the School Code establishes the procedure for the detaching of territory from existing school districts by order of the County Board of School Trustees. Maps and reports of financial conditions of the school districts are required to be submitted to the Board by the County Superintendent of Schools, who is ex-officio Secretary of the Board. A hearing is then held to receive other evidence material to the inquiry and in fulfillment of the statutory requirements. After considering the reports, maps and transcript of the hearing the County Board renders its decision.

On May 3, 1954, plaintiff filed its petition with the County Board of School Trustees of St. Clair County to detach certain vacant and unimproved real estate from defendant and attach it to adjoining School District 118. Proper notices in accordance with the statute were given and the hearing set for June 10, 1954. On that date evidence was presented to the County Superintendent of Schools as hearing officer of the Board. The evidence consisted of maps and testimony on behalf of petitioners by its president. This testimony indicated that there would be a geographical advantage to future residents of the territory if the detachment were allowed. No one appeared and opposed, the petition. On July 28,1954, the County Board of School Trustees considered the petition and the evidence and by a vote of 6 to 1 denied the petition. Plaintiff thereafter filed its complaint for review in the Circuit Court under the provisions of the Administrative Review Act. On February 2, 1955, hearing was had on the complaint and answer of the defendant and an order was entered reversing the decision of the County Board of School Trustees and granting the requested detachment and annexation.

Defendant school district on appeal contends that the Circuit Court order was against the manifest weight of the evidence and that the decision of the Board was in substantial compliance with the School Code. In support of the Circuit Court’s action on the other hand, plaintiff points out alleged irregularities in procedure before the Board and the absence of evidence in opposition to the petition. The contention is that the Board acted arbitrarily in denying the petition and abused the discretion vested in it by statute.

We must first observe that since no question is raised as to the Circuit Court’s power to affirmatively decree a detachment and annexation of territory, we confine this opinion to the initial portion of the order, i. e., the reversal of the Board’s decision.

The formation and alteration of school districts is governed wholly by statute. In exercising the power and discretion vested in it by the statute the County Board of School Trustees must carefully observe the standards of proof prescribed by the legislature. Pritchett v. County Board of School Trustees of White County, 5 Ill.2d 356, 125 N.E.2d 476. In this case the record of proceedings before the County School Trustees fails to show that the Board was furnished with “a report of financial and educational conditions of the districts involved and the probable effect of the proposed changes” as required by Paragraph 4B-4 of the School Code. The portion of this section requiring that this information be furnished to the Board is mandatory. Without it the Board is not sufficiently advised to enable it to carry out its statutory duty to “take into consideration the division of funds and assets which will result from the change of boundaries.” Nor could the Board determine the ability of the districts to meet the “standards of recognition” unless it has before it the financial and educational conditions. While technical errors of the Board should be overlooked, it is necessary that all mandatory requirements of the statute be, in some manner, shown in the record. The omission of any showing that this report was furnished coupled with the fact that the only testimony at the hearing was in support of the petition left the Board’s order unsupported by any competent evidence.

It is argued, however, that the petition was premature because the territory involved was vacant; that therefore there was no need to consider the matters set forth in the statute. This contention loses force in the face of Paragraph 4B-2 of the School Code wherein provision is made for petitions signed by all the owners of record where there are no residents of the territory involved. The County School Trustees having failed to apprise itself of the matters prescribed in the statute, it is clear that the Circuit Court properly reversed the denial of plaintiff’s petition. However, the cause should have then been remanded to the Board with directions to proceed with further hearing of the petition in accordance with the statute.

Inasmuch as the cause is to be remanded to the County Board of School Trustees we feel it incumbent upon us to decide a question raised by appellee. Plaintiff-appellee contends that the order of the Board should be reversed because their decision was reached by secret ballot; that the very nature of our form of government frowns upon such proceeding; and that school boards, boards of supervisors, city councils, state legislatures and many other bodies are required to have a record vote of its members. Reference to the Constitution and statutes involved will disclose that a record, or yea and nay, vote upon propositions is specifically required for the bodies mentioned. In our opinion this is a question for the G-eneral Assembly. Having made no such requirement in the case of County Board of School Trustees, the appellee’s contention is without merit.

The judgment of the Circuit Court is affirmed in so far as it reverses the County Board of School Trustees, but is otherwise reversed and the cause is remanded to the Circuit Court with instructions to remand the cause to the County Board of School Trustees for further proceedings consistent with this opinion.

Affirmed in part and reversed in part and remanded.

CULBERTSON and SCHEINEMAN, JJ., concur.


author: MR. JUSTICE CULBERTSON

text:
    Helen Kirchoff, Plaintiff-Appellant, v. Tzinberg’s Park “N” Shop Food Stores, Inc., Defendant-Appellee.
    Term No. 55-M-13.
    Fourth District.
    October 3, 1955.
    Released for publication October 24, 1955.

      Middleton & Phillips, of East St. Louis, for plaintiff-appellant.
    Pope & Driemeyer, of East St. Louis, for defendantappellee; Frank M. Rain, of East St. Louis, of counsel.
   MR. JUSTICE CULBERTSON

delivered the opinion of the court.

This is an appeal from an order of the City Court of East St. Louis, Illinois, allowing a motion for a directed verdict and entering judgment in favor of defendant, Tzinberg’s Park “N” Shop Food Stores, Inc., a corporation, and as against the plaintiff, Helen Kirchoff.

An action for damages alleging negligence of defendant in the operating and managing of a grocery store was instituted by plaintiff in which she alleged that she was injured by glass shot into the top of her foot by an exploding bottle of root beer which had been mishandled. The complaint consists of two counts, the first of which did not allege any specific negligence. At the close of the evidence for the plaintiff the Court directed a verdict as to the first count of the complaint which alleged no specific negligence but which was apparently predicated on a res ipsa loquitur theory. The Court reserved ruling on the motion for directed verdict as to count two, and defendant went forward and introduced evidence. At the close of all the evidence defendant again moved for a directed verdict as to count two, but the Court again reserved its ruling and permitted the case to go to the jury on count two. The jury returned a verdict in favor of plaintiff in the amount of $1500, but the Court thereafter allowed the motion for directed verdict and entered judgment in favor of defendant and as against plaintiff.

The evidence in the case disclosed that cartons of soda were stacked one on top of the other against a wall, extending onto the floor of the store about three feet deep for a space of about nine feet along the wall. The soda was stacked up in six-bottle cartons about four or five feet high. A lady (other than plaintiff) reached for the soda, got her carton off, and when she came down with the carton it brushed a carton below it which carton in turn came down and struck a quart bottle of root beer. When the quart bottle of root beer which was in a carton on the floor was struck by the carton full of soda, it burst, and a piece of glass flew and cut the plaintiff on the foot.

It is apparent from the record in this cause that count one failed to state a cause of action in that it did not state any fact showing a failure of defendant to perform a duty proximately resulting in the injury (Overstreet v. Illinois Power & Light Corp., 356 Ill. 378, 383). In any event the res ipsa loquitur doctrine could not be applied in the case before us since there was direct evidence of the cause of the occurrence complained of as recited in the statement of facts (Jackson v. 919 Corp., 344 Ill. App. 519, 528; Pennsylvania Co. v. Roberts & Schaefer Co., 250 Ill. App. 330, 339).

As to count two of the complaint the allegation that defendant mishandled the root beer, or that the root beer was stacked at an excessive height, or that the root beer was in a defective bottle, and other specific charges, was not sustained by the record. Defendant was not an insurer of the safety of plaintiff simply because she was on the premises as a business invitee. Defendant was required to exercise ordinary care for its customers. Viewing the evidence in its most favorable light for the plaintiff we must conclude that there was a failure to prove any of the charges of negligence contained in count two which could sustain a verdict (Brady v. Southern Ry. Co., 320 U. S. 476). Under the record before us the Trial Court properly allowed the motion for a directed verdict as to count two made at the close of all the evidence.

In view of our conclusion it is not necessary that we discuss other matters urged on appeal in this cause other than to observe that the action of the Trial Court in denying the motion for new trial predicated on what is described as “newly discovered evidence” was proper, particularly since the evidence was cumulative and could not produce a different verdict or establish facts showing negligence on part of defendant under the allegations of count two of the complaint.

The judgment of the City Court of East St. Louis will, therefore, be affirmed.

Affirmed.

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


author: MR. JUSTICE SCHEINEMAN

text:
    The First National Bank of Millstadt, Plaintiff, v. L. J. Freant et al., Art Fauss, Inc., Defendants. Art Fauss, Inc., Counterclaimant-Appellant, v. L. J. Freant and Rosemary Freant, Counterdefendants-Appellees.
    Term No. 55-M-5.
    Fourth District.
    October 3, 1955.
    Released for publication October 24, 1955.

      Wilmer L. Vogt, of Belleville, for counterclaimantappellant.
    Thomas P. O’Donnell, of Bast St. Louis, for counter-defendants-appellees.
   MR. JUSTICE SCHEINEMAN

delivered the opinion of the court.

This suit involves a claim for a real estate broker’s commission, by an East St. Louis brokerage firm, defended by the sellers on the ground the property involved is located in the City of Belleville, where the broker had no city license as such. It is contended the lack of such license makes the contract between broker and seller void.

The suit was commenced by interpleader, with the amount in dispute deposited in court. The interpleaded parties are the claimant, Art Fauss, Inc., hereafter called plaintiff, and L. J. Freant and wife, hereafter called defendants. The facts were stipulated, and judgment was entered for defendants, from which this appeal was taken.

By stipulation of the parties, as well as by the pleadings below and the argument here, the only issue is the effect of the Belleville ordinance, therefore no other question is considered by this court. It is conceded that the plaintiff has fully complied with laws of the State of Illinois pertaining to registry of brokers and salesmen, and is licensed in East St. Louis, where it has offices and conducts its business, and where the contract is dated. Plaintiff had not procured a Belleville license, under the following ordinance:

“Section 92. Every person carrying on the business of broker of real estate, loan broker or bond broker in this City shall pay a license fee of Thirty Dollars ($30.00) per year.

“Section 93. A broker of real estate is one who for commission or other compensation is engaged in the selling of or negotiating sales of real estate belonging to others, or obtains or places loan for others on real estate.

“Section 94. Any person violating any of the provisions of this Ordinance by failing to take out a license as provided shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than three dollars ($3.00) and not more than Two Hundred Dollars ($200.00.).”

Four features of this ordinance are involved in the argument: 1. It makes no reference to location of property but only to business carried on “in this city.” 2. It does not purport to apply to an isolated single transaction, but only to “carrying on the business” and to negotiating “sales.” 3. It specifies no qualifications for a broker, nor any regulations of the business, purporting to be only a revenue measure. 4. It does not prohibit the business in any way, nor provide any penalty other than a fine not exceeding $200.

The questions involved are not new, but there are few reported decisions in this state thereon, and those from other states present some apparent conflict. Some cases hold that a penalty law or ordinance does not make a contract in violation thereof actually void, unless expressly so declared. Others find occasion to imply such a result from the purpose or apparent legislative intent.

Defendants rely upon cases from the City of Chicago, such as Whitfield v. Huling, 50 Ill. App. 179; Hustis v. Pickands, 27 Ill. App. 270; Douthart v. Congdon, 197 Ill. 349. From these decisions, it appears that the Chicago ordinance expressly declares it unlawful and prohibited to transact a brokerage business without a city license. The Belleville ordinance contains no such provision. Moreover these cases appear to be based more upon transaction of business in Chicago, rather than the location of the property.

An opposite result is usually found in cases based on the location of property. Thus, where a Wisconsin broker, acting in that state, negotiated an exchange involving a property in Chicago, his lack of a Chicago license was held no defense to his claim for commission. Cervenka v. Hunter, 185 Ill. App. 547 (Abst.). Likewise, a contract made in Michigan between a broker and seller is not invalidated by a city ordinance in Illinois. Egeland v. Scheffler, 189 Ill. App. 426 (Abst.). And in O’Dea v. Throm, 250 Ill. App. 577, the court said:

“The fact that a party, residing in Illinois, requests a real estate broker, also residing in Illinois, and the request being made in Illinois, to procure a purchaser of real estate in a foreign state, does not stamp such a contract as one having been made where the property to be sold is located.”

Similar results have been reached in other states, for example, Ressler v. Marks, 308 Pa. 205, 162 Atl. 666; Aronson v. Carobine, 129 Misc. 800, 222 N. Y. Supp. 721; and see note in 169 A. L. R. 769.

While these cases may involve different states rather than different cities in the same state, the principle is the same. These license laws are not, and do not purport to be, a method of taxing real estate transfers; rather, by their express terms, they impose the license on the occupation, where the transaction occurs.

Of course, it is conceivable that a broker licensed in one city, might have a series of sales of property in another locality, so that a court would regard him as one carrying on a business in the latter. For this reason, the foreign cases above cited, and others in the cited annotation, are careful to mention that the suit involved only an isolated transaction. From this, it has been stated as a general rule that an isolated local sale by a foreign broker is not subject to a local license law. 8 Am. Jur. “Brokers,” Sec. 156.

From the foregoing, we are of the opinion that ordinances for broker licenses apply to the occupation where it is carried on, rather than where the property is situated, with the possible exception of a series of transactions in one locality.

We further agree with appellant that an ordinance prescribing a penalty by fine, does not usually invalidate a contract. The modern trend of authority appears to limit the penalty under any act to that prescribed by the act itself. Thus, in Grody v. Scalone, 408 Ill. 61 (contra to Mickelson v. Kolb, 337 Ill. App. 493) the court held that the law requiring registry of a fictitious name, did not render void a contract made under such an unregistered name, but only the prescribed penalty would be enforced. This law was contrasted with the Illinois Real Estate Brokers & Salesmen Act, which prohibits recovery of a commission by one not registered under the state law. Ill. Rev. St., Chap. 114½, Sec. 2b [Jones Ill. Stats. Ann. 115.02(2)].

There is no reason to depart from that principle in the instant case. In fact, the requirement that a fictitious name be registered may have some notion of protecting the public, and, if the prescribed fine is the only penalty in that case, surely a mere license requirement, not purporting to do anything but secure revenue, should have no worse effect. Quite a few cases on this subject bottom the result solely on that principle: that a license for revenue, as distinguished from a regulatory law, makes a violator subject to the prescribed fine, but does not impose the much heavier penalty of invalidating a contract. See Annotations: 16 L. R. A. 423; 1 L. R. A. (N. S.) 1159; 12 L. R. A. (N. S.) 613; Ann. Cas. 1912 D 378.

It must be concluded that the ordinance of the City of Belleville was not a defense to plaintiff’s claim, and plaintiff is entitled to judgment under the stipulation. Accordingly the judgment of the Circuit Court is reversed and the cause remanded with directions to enter judgment for Art Fauss, Inc., for the balance of the deposited fund, less the deductions prescribed in the stipulation, consisting of costs in the lower court and the escrow fee.

Reversed and remanded.

BARDENS, P. J. and CULBERTSON, J., concur.


text:
    Victor Cruz, Plaintiff-Appellee, v. Gulf, Mobile & Ohio Railroad Company, Defendant-Appellant.
    Term No. 55-M-16.
    Fourth District.
    October 3, 1955.
    Released for publication October 24, 1955.

      Gillespie, Burke & Gillespie, of Springfield, and I. H. Streeper, III, of Alton, for defendant-appellant; Harold R. Clark, and Harold G. Talley, both of Alton, of counsel.
    Morris B. Chapman, of Granite City, for plaintiffappellee; John Gitchoff, of Granite City, of counsel.
   MR. JUSTICE SCHEINEMAN

delivered the opinion of the court.

Plaintiff, Victor Cruz, an employee in interstate commerce of the defendant railroad, brought this suit under the Federal Employers’ Liability Act. He obtained a verdict of $6,000 for injuries incurred as a result of the alleged negligence of a fellow employee in lifting and moving a handcar from the main tracks. Defendant’s motions for judgment notwithstanding the verdict and for new trial were denied and judgment entered on the verdict.

On this appeal, defendant contends that plaintiff failed to present any substantial and affirmative evidence of negligence on the part of defendant and, therefore, the trial court should have directed a verdict as a matter of law. In the alternative, defendant contends it should have a new trial because the verdict is based on mere conjecture, and is contrary to the manifest weight of the evidence; also because of errors in the court’s rulings, and improper conduct of plaintiff’s counsel.

Tire injuries occurred while plaintiff and other employees were transferring a handcar from one track to another, over a small distance. To facilitate moving of the handcar, it is. equipped with handles which protrude from each corner thereof. By grasping these handles the men, acting together, can lift one end of the car from one set of rails to the other. On this occasion the plaintiff had hold of one handle and another employee, Vasques, had hold of the parallel handle on that end.

As the lift was made, plaintiff contends Vasques suddenly pushed or shoved the car toward plaintiff, causing him to fall and suffer injuries, including fractured ribs. Defendant contends that, if the car was shoved toward plaintiff, it was because Vasques first stumbled and fell, without fault on his part, therefore, there was no actionable negligence.

It is not easy to determine what actually happened, for both Cruz and Vasques were of Mexican origin without adequate knowledge of English to express themselves. An interpreter was used with Cruz, but there was still great difficulty in obtaining responsive answers. In answer to many questions put by plaintiff’s counsel, some of which were objected to, we find that plaintiff’s story was substantially this: that he was watching Vasques, but “Vasques make sudden lift and it caught him out of balance.” (This is the way the interpreter gave it.) There are several other statements to a similar effect, but in some of them the interpreter used pronouns so loosely that it is not always clear in print whether the reference was to Cruz or Vasques.

Out of the presence of the jury, plaintiff’s counsel sought to obtain leave to put leading questions, on account of the limited understanding of the witness, but defense counsel continued to object, and the court sustained the objections. The court was of the opinion that the witness had been able to tell his story to a reasonable extent, and stated that he understood the witness as having said “Vasques made a sudden lift and caught me off balance.” In our opinion this is a fair statement of testimony.

Since the handcar has considerable weight, it seems obvious that lifting it from one set of rails to another requires cooperative effort and unity of action. It is not difficult to perceive that a sudden lifting and movement by one individual could readily cause the man opposite him to lose his balance and thereby stumble and fall. We are obliged to conclude that there is a reasonable inference the accident occurred in that manner.

In a statement signed by plaintiff (who asserted that he could neither read nor write) there was a reference to his foot striking against a tie plate. It is possible that plaintiff fell by reason of an accidental stumble on his part, or that Vasques accidentally stumbled, but which is the true version is a question for the jury. Since there is a reasonable basis in the record to support the conclusion of the jury that negligence caused the injury, it is not material that other possibilities may be inferred. Ellis v. Union Pac. R. Co., 329 U. S. 649, 67 S. Ct. 598.

Nor is it possible to set aside this verdict on the ground it rests on “conjecture and speculation.” It is not mere conjecture when the verdict is supported by direct testimony, and it is the jury’s function to weigh contradictory evidence and inferences and draw the ultimate conclusions as to the facts, the courts are not free to reweigh the evidence and set aside a jury’s verdict merely because the jury could have drawn different conclusions under the evidence. Dowler v. New York C. & St. L. R. Co., 5 Ill.2d 125.

Accordingly, the denial of the motion for directed verdict was proper, and the ruling is sustained.

In considering the weight of the whole of the evidence under the motion for new trial, we observe that Vasques, called as a witness for the defense, actually corroborated the plaintiff on essential points. He stated in different ways that he had lifted and pushed toward plaintiff, and when asked on cross-examination if he had not pushed too hard for the old man, he answered: “Well, I guess I did.” In the face of this testimony, we find no basis for the claim that the verdict is contrary to the manifest weight of the evidence.

As for the rulings of the trial court, it appears on the direct examination of plaintiff, all objections to leading questions were sustained, and upon redirect the court permitted answers only to leading questions on matters that were already in the record. The trial court necessarily has some discretion in rulings on leading questions. People v. Merritt, 367 Ill. 521; Funk v. Babbitt, 156 Ill. 408. There was no abuse of discretion in this case.

The complaint about the conduct of counsel, urged as grounds for a new trial, pertains to the cross-examination of a physician called as a witness for the defense. This witness was endeavoring to minimize the nature of plaintiff’s injuries, which he had a right to do. However, it is a legitimate purpose of cross-examination to disclose whether a witness tends to exaggerate or understate, and to expose any bias which might affect his accuracy.

It is apparent in this examination that the witness undertook to do some fencing with the examiner. Some of his answers and statements would tend to discredit him to some extent, and the examiner made these conspicuous. It cannot be said that cross-examination is unfair or improper merely because it is effective, and this court fails to find any basis for this complaint.

The rulings of the trial court were correct and the judgment is affirmed.

Judgment affirmed.

BARDENS, P. J. and CULBERTSON, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    Harold J. Green and Jules R. Green, Doing Business as G. & G. Finance Co., Appellees, v. Unity Container Corp. et al. Appeal of Harry J. Walsh and Martha M. Walsh, Appellants.
    Gen. No. 46,607.
    First District, Second Division.
    October 4, 1955.
    Rehearing denied November 2, 1955.
    Released for publication November 3, 1955.

      Stephan, Cuisinier & Gillespie, of Chicago, for appellants ; Carl Pomerance, and Francis X. Cuisinier, both of Chicago, of counsel.
    Ash & Anos, of Chicago, for appellees; Joseph Ash, of Chicago, of counsel.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from an order of the Circuit Court denying certain defendants leave to open up a judgment by confession previously entered.

On February 12, 1951, at Milwaukee, Wisconsin, Unity Container Corporation, an Illinois corporation, executed a principal note in the sum of $14,560 payable to the Lake Shore Machinery Co. On February 15, 1951, at Milwaukee, Wisconsin, Harry J. Walsh and Martha M. Walsh, doing business as Lake Shore Machinery Co., endorsed and delivered the note to the plaintiffs. The face of the note contained a warrant of attorney authorizing judgment by confession against the Unity Container Corporation. On the back of the note was an endorsement by which the Walshes guaranteed payment and authorized the maker to obtain extensions, and in which was included a warrant of attorney to confess judgment against the endorsers. Also on the back of the note was a “seller’s recourse endorsement,” by which the Walshes guaranteed payment of the note, and which further provided that it should not be enforceable against them if the makers of the note paid the “first —-- installments,” each within fifteen days of its respective maturity, and incorporated therein was a warrant of attorney to confess judgment.

On May 28, 1952 the plaintiffs confessed judgment on the note against the Walshes in the Circuit Court, case No. 52 C 6349, in the amount of $15,553.72. On January 22, 1954 the defendants filed a motion therein to vacate the judgment based on the ground that the Walshes were nonresidents of Cook County, that they owned no property and did no business in the said county, which motion by order of the Circuit Court was denied Februray 5, 1954. On May 4, 1954 the Walshes filed notice of appeal, which appeal was perfected, and the order of the Circuit Court was reversed in Green v. Walsh, 5 Ill.App.2d 535.

On May 27, 1954 the plaintiffs obtained a judgment by confession in the instant action in the Circuit Court of Cook County, in the amount of $13,692.28, against the defendants, Harry J. Walsh and Martha M. Walsh and the Unity Container Corporation, pursuant to the warrant of attorney in the principal note and the warrant of attorney contained in the Walshes’ “recourse” endorsement on the reverse of the note. On June 25, 1954 the Walshes filed a special and limited appearance and a motion, supported by affidavits, objecting to the jurisdiction of the court and moving to vacate the judgment, alleging, among other things, that the note and guaranty in question were not executed in the County of Cook and State of Illinois; that the Walshes are not residents of Cook County; that they have no property, real or personal, within said County; that judgment had been entered previously on the same power of attorney and identical guaranty in case No. 52 C 6349 in the Circuit Court; that the maker of the note had been adjudicated a bankrupt in the United States District Court for the Northern District of Illinois. On July 1,1954 the court entered an order denying the defendants’ motion.

On July 16, 1954 the Walshes filed a motion, supported by affidavits, to open up the judgment, in which, after reasserting all matters contained in their affidavit of June 25, 1954, they alleged that they have a meritorious defense to the action in that the warrant of attorney had been exhausted by the previous judgment; that the note was endorsed without consideration ; that the note is usurious; that the plaintiffs have been fully paid inasmuch as they received $6,040.50 from the sale of machinery in the bankruptcy proceedings of the Unity Container Corporation, and in addition thereto the said plaintiffs rejected bids totaling $2,675 for certain other machinery and in lieu thereof took physical assets for which a bid of $2,675 had been made; that the plaintiffs failed to give defendants credit for a payment of $600 made by the defendant corporation to plaintiffs; that the plaintiffs, without knowledge or consent of the Walshes, extended time of payment to the maker corporation at a time when it was unable to meet its obligations and was facing bankruptcy. The plaintiffs filed a counter-affidavit setting out that the matters raised under the previous motion had been passed on by the court on July 1, 1954 and was res judicata; that the defendants had failed in their affidavit to state that they are not indebted to the plaintiffs and that their petition contains merely legal conclusions; that the judgment entered by the court in case No. 52 C 6349 and the judgment entered in the instant case were entered on separate warrants of attorney and that the judgment in the previous case has not been satisfied; that the allegation that the note sued on was without consideration was a legal conclusion, as is the allegation that the note is usurious. Plaintiffs acknowledged that they received $6,040.50 from the sale of machinery in the bankruptcy proceedings of the Unity Container Corporation, but say that as an incident thereto they incurred insurance expenses of $1,672.35, travel expenses of $650, and attorneys’ fees of $750, or a total expense of $3,072.35, and state that they had a net recovery from the sale of machinery in the bankruptcy proceedings of $2,968.15. They also acknowledge receiving $600 from the sale of other machinery, and state that the defendants were given a total credit of $3,568.15 before judgment was confessed, which was all to which they were entitled. They further alleged that the Walshes in their affidavit failed to properly set up that there was any extension of time given by the plaintiffs to the Unity Container Corporation, but they did not deny that such extension was given.

On September 14, 1954, the trial judge “having considered the written motion of the said defendants and the affidavit in support thereof and the plaintiffs’ answer and counteraffidavit thereto,” denied the motion to open the judgment by confession, from which order of the court this appeal is taken.

Section 50(5) of the Civil Practice Act regulating confessions of judgment provides that the application to confess judgment shall be made in the county in which the note or obligation was executed or in the county where one or more of the defendants reside, or in any county in which is located any property, real or personal, owned by any one or more of the defendants, and that a judgment entered by any court in any county other than these herein specified shall have no validity, anything in the power to confess to the contrary notwithstanding. (Ill. Rev. Stat., chap. 110, par. 174(5) [Jones Ill. Stats. Ann. 104.050, subd. (5)].)

Section 7 of the Civil Practice Act (par. 131, chap. 110 [Jones Ill. Stats. Ann. 104.007]), relating to venue and covering every civil action except as otherwise provided in the Act, provides that a judgment can only be rendered against a defendant who is a nonresident of the county upon the following express conditions: (1) when judgment is also rendered against a defendant residing within the county, unless the defendant not residing within the county appears generally, and defends the action on its merits; (2) and not then unless it appears from the record or the evidence that the defendant residing within the county was joined with probable cause and in good faith for the purpose of obtaining a judgment against him and was not joined solely for the purpose of fixing the venue of the action in that county.

The purpose of these provisions is to prevent a plaintiff from joining a resident in the county with a nonresident as a mere subterfuge for the purpose of obtaining a judgment against the nonresident. We believe that this section of the statute must be construed together with the section dealing with confessions of judgment. The legislature joined together three requisites in order to bring the case within the scope of the statute: good faith, probable cause, and a joinder not made for the sole purpose of conferring venue.

“Good faith” is hardly capable of an exact definition; it consists of an honest intention to abstain from taking any unconscientious advantage of another, even through forms and technicalities of the law. “Probable cause” is a reasonable belief that the claim on which the suit is brought is valid.

Here, the fact that the original judgment on the note was confessed against the Walshes alone on May 28, 1952, and that no confession against the Walshes and the Unity Container Corporation jointly was applied for until May 27, 1954 and after the Walshes had filed an appeal from the order of the Circuit Court of February 5, 1954 denying their petition to vacate the judgment, together with the facts that the Unity Container Corporation had in the meantime been adjudicated a bankrupt and that the plaintiffs had filed a claim covering this indebtedness in the bankruptcy proceedings and received a distribution thereon after the sale of the assets therein, should be very persuasive on a court that the joinder of the resident corporation was not in good faith and was solely for the purpose of obtaining jurisdiction of the nonresident defendants. If this is true, then under the terms of the statute and in accord with Green v. Walsh, supra, the judgment was void. “The judgment being void, laches is not a defense to allowance of the motion to vacate (Ray v. Moll, 336 Ill. App. 360, supra, and cases cited), and a defense on the merits need not be shown. Gillham v. Troeckler, 304 Ill. App. 596; Desnoyers Shoe Co. v. First Nat. Bank; 188 Ill. 312, supra.” Green v. Walsh, supra.

In this case the defendants raised the jurisdictional question at the earliest possible moment by filing a special appearance and attacking the jurisdiction of the court at the inception of their attempt to vacate the judgment. After their original motion to vacate was denied, in their subsequent petition to open up the judgment they reasserted their jurisdictional objections. This the plaintiffs strenuously contend was a general appearance and by filing it the defendants waived any jurisdictional questions. Rule 21 of the Supreme Court provides that when a motion under a special appearance attacking the jurisdiction of the court over the person is denied, and the defendant pleads over and in so doing enters a general appearance, he does not waive error with respect to the question of jurisdiction. In re Estate of Rackliffe, 366 Ill. 22; Albers v. Bramberg, 308 Ill. App. 463; Ruthfield v. Louisville Fuel Co., 312 Ill. App. 415. Before the adoption of this rule, after a denial of a motion raising a jurisdictional question under a special appearance, any action taken by a litigant which in any way indicated a submission of his cause to the court was deemed to have waived every objection, no matter how valid, to the court’s jurisdiction over his person. Rule 21 is remedial. It ameliorates the former harsh and, in many instances, unjust rules concerning waiver of an objection made to lack of jurisdiction over the person.

In the case before us the defendants, on limited appearance, filed their motion on jurisdictional grounds. After the denial of the motion they filed a subsequent motion which set up, in addition to the jurisdictional grounds, other matters which might be construed as going to the merits of the controversy. Such petition has no more effect in conferring jurisdiction of the person than the filing of an answer on the merits in a suit commenced by summons under the same circumstances. The defendants by talcing such action have not forfeited their right to make the contention in this court that the trial court erred in its ruling on the jurisdictional question. Rixmann v. Witwer, 327 Ill. App. 205. Neither Mitchell v. Comstock, 305 Ill. App. 360, nor May v. Chas. O. Larson Co., 304 Ill. App. 137, is applicable because in each of those cases before any motion attacking the jurisdiction of the court was made a general appearance was filed.

The order of the Circuit Court is reversed and the cause is remanded to the Circuit Court for further proceedings in conformity with the views expressed herein.

Order reversed and cause remanded.

ROBSON and SCHWARTZ, JJ., concur.


text:
    Alec Shatz, Appellee, v. Aaron K. Paul et al., on Appeal of Aaron K. Paul, Appellant.
    Gen. No. 46,697.
    First District, Second Division.
    October 4, 1955.
    Released for publication November 3, 1955.

      Samuel J. Andalman, of Chicago, for appellant.
    Collen, Kessler & Kadison, of Chicago, for appellee; Mark A. Greenhouse, of Chicago, of counsel.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from an order for a temporary injunction entered in the Circuit Court of Cook County in accordance with the prayer of an amended complaint therein filed, and from the order of the court denying defendants’ motion to strike the amended complaint. The injunction restrained the defendants from “suing out any writs of capias ad respondendum . . . based upon any invoices sold to them by A & S Supply Company, Inc., a corporation, and/or Lynn Pump Co., a corp.”

The theory of the defendant appealing is that the amended complaint fails to state any ground for equitable relief and furnishes no foundation or justification for the issuance of an injunction.

Aaron K. Paul, Seymour Hirschfield and Harold Hirschfield, copartners, doing business as Empire Factors (defendants in the instant action for injunction), had previous to the instant suit filed four actions in the Circuit and Superior Courts of Cook County against Alec Shatz (plaintiff in the instant action), predicated upon fraud and deceit. In each of the suits it was alleged that the defendant therein had induced the plaintiffs to purchase and discount certain accounts receivable because of false representations and warranties made to them and upon which they relied. Each of the suits is based upon an invoice made to a different company.

Two of the suits were filed on August 10, 1954, one in the Circuit Court of Cook County and the other in the Superior Court of Cook County. On November 12th and November 22nd two other suits were filed in the Circuit Court of Cook County. At the time each of the complaints was filed the plaintiffs submitted an affidavit for the procuring of an order for the issuance of a capias ad respondendum, and in pursuance of such order and capias the defendant was attached and he posted bail. The aggregate amount of the invoices in the four cases is $6,194. The aggregate amount of the bail posted by defendant is $13,000. The defendant had filed a motion to strike these complaints, which motion has not been heard.

On March 10, 1955 Alec Shatz (hereafter referred to as plaintiff) filed an amended complaint for injunction in the Circuit Court of Cook County against Aaron K. Paul, Seymour Hirschfield and Harold Hirsckfield, co-partners, doing business as Empire Factors (hereafter referred to as defendants), alleging that plaintiff, as an officer of the Lynn Pump Company and the A & S Supply Company, had presented invoices of the corporations to the defendants for the purpose of discounting the same; that on March 23,1953 both corporations had filed voluntary petitions in bankruptcy, scheduling the defendants as creditors; and fully and in detail set out the filing of the four suits with affidavits by the defendants for the issuance of the writ of capias ad respondendum. It was further alleged that the plaintiff had been arrested in the four separate actions, had posted bail, and on one occasion had been compelled to spend a night in jail; that the defendants have in their possession some six invoices due and owing from the bankrupt corporations to the defendants, and that the defendants, through their agents and attorneys, threatened to file a separate suit on each and every invoice and secure writs of capias ad respondendum and compel the plaintiff to post bond for his release; that the defendants had no reason to believe that the plaintiff would leave the jurisdiction of the court, as was asserted in the affidavits filed to secure the writs, and that the plaintiff had no such intention; that the writs were sued out for the purpose of harassing the plaintiff and his wife in order to effect payment; that the defendants’ threats to have further writs issue in separate suits based on the remaining invoices were made to the end that the plaintiff or his wife would borrow funds from friends or relatives and pledge their personal credit toward the payment of the debts occasioned by the said unpaid invoices, and that the defendants knew that the plaintiff had no funds to pay the premiums of bail bonds and was subjected to hardship in securing the monies for such payments. The complaint also alleges that the plaintiff had a good and meritorious defense to all the causes of action brought or threatened to be brought by the defendant in that an accord and satisfaction had been reached by the parties.

The defendants thereupon filed a motion to strike the amended complaint. On March 30, 1955 the court, after a full hearing, overruled the motion to strike the amended complaint and upon the plaintiff’s filing bond in the sum of $2,000 issued a temporary injunction against the defendants forbidding them from suing out any writs of capias ad respondendum on any of the other invoices in their possession, from which order this appeal is taken by Aaron K. Paul, one of the defendants.

In determining the issues presented in this case, it becomes necessary to discuss the genesis of the writ of capias ad respondendum.

In England at common law the defendant had to appear in court before any judgment could be entered against him. This rule was probably derived from the ancient principle that recourse to the court depends upon the consent of the parties. Holdsworth’s History of English Law, 3rd ed., vol. 2, p. 105; vol. 9, p. 252. Originally arrest was only permitted in actions of trespass and not in actions of debt. Gradually it was extended to cover most personal actions. On the arrest of the defendant on a capias ad respondendum the defendant was required to put in special bail to the sheriff to secure his appearance on the return of the writ. Upon the return of the writ the defendant’s appearance was effected by entering into a recognizance with two sureties by which it was agreed that in case of judgment against the defendant he would either pay the judgment or surrender himself as a prisoner, and that if he defaulted, the sureties would pay. 3 Bl. Comm., p. 291. In case the defendant was unable to secure the necessary bail he was committed to a debtor’s prison. Upon judgment having been entered, a capias ad satisfaciendum could be forthwith issued under which the body of the debtor could be imprisoned until the costs and damages were paid. Consequently it was possible that the debtor could be imprisoned from the time of the inception of the suit until the payment of the judgment. In 1838 by act of Parliament, arrest on mesne process was abolished in all cases except those in which it appeared that the defendant was about to leave the country to avoid meeting the claim against him. Judgments Act, 1 and 2 Victoria, ch. 110, sec. 1, re-enacted by Debtors Act of 1869, sec. 6.

In Illinois the Constitution of 1818 prohibited imprisonment for debt unless the defendant refused to deliver up his estate for the benefit of his creditors in such manner as should be prescribed by law or in a case where there was a presumption of fraud. This identical provision was adopted in the succeeding Constitutions of the State, and appears in our present Constitution adopted in 1870. In the early case of People ex rel. Brennan v. Cotton, 14 Ill. 414, the court held that this prohibition did not extend to body executions issued in actions for torts, and subsequently by statute torts were specifically excluded from the operation of the prohibition of execution against the body. Section 5 of the Judgments and Executions Act, as amended in 1935 (Ill. Rev. Stat., chap. 77, par. 5 [Jones Ill. Stats. Ann. 107.155]), provides that a body execution should not issue except on a judgment obtained for a tort committed by the defendant and when it shall appear by a special finding of the jury or the court, if the case is tried by the court without a jury, that malice is the gist of the action, and except where the defendant shall refuse to deliver up his estate for the benefit of his creditors. Ingalls v. Raklios, 373 Ill. 404.

It is also provided by statute that a capias ad respondendum may issue in suits on all contracts, express or implied, or on the judgment of any court, if the plaintiff files án affidavit setting forth the cause of action and the amount due, together with facts showing that the defendant fraudulently contracted the debt or incurred the obligation, or that he has concealed, assigned, removed or disposed of his property with intent to defraud the plaintiff (Ill. Rev. Stat., chap. 16, par. 1 [Jones Ill. Stats. Ann. 109.123]), and in actions sounding merely in damages where the same cannot be ascertained, the affidavit shall also set forth the nature and cause of the action, with the substantial or chief facts in relation thereto, and that the affiant verily believes that the benefit of whatever judgment may be obtained will be in danger of being lost unless the defendant is held to bail (chap. 16, par. 2 [Jones Ill. Stats. Ann. 109.124]). It has been held that the constitutional prohibition against imprisonment for debt does not apply to imprisonment under a capias ad respondendum issued in accord with the statutory requirements (In re Smith, 16 Ill. 347; Stafford v. Low, 20 Ill. 152), and that the constitutional prohibition against imprisonment for debt does not apply to imprisonment under a capias ad respondendum in tort actions (McKindley v. Rising, 28 Ill. 337).

It has been held that a defendant in a tort action, where malice is the gist of the action, is not entitled to relief under the provisions of the Insolvent Debtors’ Act. Jernberg v. Mix, 199 Ill. 254, and see Ingalls v. Raklios, supra; Ill. Rev. Stat., chap. 72, par. 2 [Jones Ill. Stats. Ann. 109.379]. Paragraph 4 of chapter 16 [Jones Ill. Stats. Ann. 109.126] dealing with bail in civil cases also provides that upon the issuance of a capias ad respondendum a bail bond of sufficient security shall be taken with the condition that in case the defendant shall not pay the judgment if a judgment is returned against him, the sureties will pay the same or surrender the body of the defendant, whereupon he may be confined until he furnishes such bail as is required under the statute, or is discharged by operation of law.

Thus we have extended into our system of jurisprudence many of the rules existing at early common law with reference to imprisonment of debtors, about which Mr. Holdsworth in his History of English Law, 3rd ed., vol. 8, at p. 231, says:

“Constraint of the debtor’s person thus became in England a more general method of execution than in many other countries in Europe. Largely because it was introduced in this indirect way, a mode of execution which required, and in most countries received, careful limitation and regulation from the Legislature, was almost entirely unregulated.”

Mr. Parnass, in an article “Imprisonment for Civil Obligations in Illinois,” 15 Ill. L. Rev. 559, 571, says:

“Thus almost two centuries after English debtors, seeking relief from the harsh laws of England, founded an American colony, the institution of the debtor’s prison still prevails in Hlinois and in other states of the Union, though many have abolished it altogether. It is true, of course, that in this state, continued incarceration is possible only where the defendant is guilty of a malicious tort or dishonestly refuses to surrender his property for the satisfaction of a judgment against him, or is guilty of other fraud. It is nevertheless to be noted that execution against the body even in such cases presents the anomaly of imposing a criminal consequence upon a civil judgment, a judgment which may have been entered by default, a judgment based on a verdict and on a trial of the issues wherein the charges need be proved merely by a preponderance of the evidence, and not, as in other cases where criminal consequences follow, beyond all reasonable doubt.”

Even if we should agree that a capias ad satisfaciendum should be properly available to a creditor in this present day and age and under the spirit of our times, the capias ad respondendum puts the cart before the horse. The defendant, before there is any adjudication, is required to secure the payment of the judgment or suffer imprisonment. Mr. Freedman, in his article “Imprisonment for Debt” (2 Temple Law Quarterly 330, 341), says:

“And as Sir Roger North very justly remarks, . . . ‘plaintiffs are commonly very outrageous, and love to turn the first process (by a barbarous abuse of special bail) into an execution which ought to come after judgment, and be the last.’ ” (Roger North, Life of Francis North, Baron of Guilford (3d ed.), vol. 1, p. 189.)

And Mr. Holdsworth, in his History of English Law, vol. 9, p. 250, quotes from the Pleader’s Guide by John Surrebutter, Esq. (1st American ed., pp. 39-40):

“ ‘Still lest the Suit should be delayed,

And Justice at her Fountain stayed,

A capias is conceived and born Ere yet th’ ORIGINAL is drawn,

To justify the Courts proceedings,

Its Forms, its Processes, and Pleadings,

And thus by ways and means unknown,

To all but Heroes of the Gown,

A Victory full oft is won Ere Battle fairly is begun.’ ”

In People ex rel. Levine v. Shea, 201 N. Y. 471, it is said:

“Imprisonment for debt dies hard. Barbarous, cruel and senseless, it puts its victim in jail in order to make him do something which in most instances the imprisonment itself prevents him from doing. It is the lawful use of torture and differs only in the degree of the suffering caused from the thumb screw, the rack and the boot.”

It is true that we have progressed a long way from the time when a judge could and did say, in Manby v. Scott, 1 Mod. 124, 132; 86 Eng. Reprints 781, 786 (1663): “If a man be taken in execution and lie in prison for debt, neither the plaintiff at whose suit he is arrested, nor the sheriff who took him, is bound to find him meat, drink and clothes; but he must live on his own, or on the charity of others; and if no man relieve him, let him die in the name of God, says the law, and so say I.” This, harsh as it may sound, was a statement of a well-recognized rule of law. See Dive v. Manningham, 1 Plowden, 60, 68; 75 Eng. Reprints 96, 108-9 (1551). Today in Illinois the defendant imprisoned for debt is provided with meat and drink, the plaintiff is required to pay the jailer his board in advance, which board is taxed as additional costs, and the defendant is credited with the sum of $1.50 for each day he serves. It is also provided that no person may be imprisoned for debt for a longer period than six months. (Ill. Rev. Stat., chap. 72, pars. 29, 30, 31, 33 [Jones Ill. Stats. Ann. 109.407-109.409, 109.411].)

In the instant case the defendant argues strenuously that the amended complaint fails to state any ground upon which a court of equity may act.

The historic function of a court of equity is the administration of remedial justice, and the sound discretion of the court is the controlling guide of judicial action in every phase of a suit in equity, which discretion, of course, is not arbitrary but must be exercised in accordance with the fixed principles and precedents of equity jurisprudence. 30 C. J. S., Equity, sec. 10. In City of Chicago v. Collins, 175 Ill. 445, the court says:

“No inflexible rule can be laid down for the determination of the question as to whether jurisdiction exists in a court of equity. In general, an adequate legal remedy will suffice to make such courts hesitate in acting. But inadequacy in granting relief for the determination of a right may arise from causes other than mere forms of remedy, and it will not do to sacrifice justice on the mere ground of the form of the remedy, where convincing facts show that adequate relief can best be had in the forum of a court of equity.”

An application for injunction is addressed to the conscience and sound discretion of the court and it is not controlled by technical legal rules. Gragg v. Levinson, 238 Ill. 69. Unless a reviewing court finds that the discretion has been abused the order will not be set aside. Bernard Bros., Inc. v. Deibler, 326 Ill. App. 538.

A court of equity can always shape its remedy to meet the demands of justice in every case, however peculiar. Geiger v. Merle, 360 Ill. 497, 508. Here the temporary injunction issued after notice and a hearing and upon the giving of bond. It did not finally conclude the rights of the parties. The balance of convenience or hardship frequently is a factor of controlling importance at the time of granting or refusing the temporary injunction.

The merits of a controversy are not brought before the reviewing court by an interlocutory appeal. Hebenstreit v. Consolidated Coal Co., 3 Ill.App.2d 453; Scholz v. Barbee, 344 Ill. App. 630; Nestor Johnson Mfg. Co. v. Goldblatt, 371 Ill. 570, 574. In Hebenstreit v. Consolidated Coal Co., supra, it is said:

“Defendant insists that a temporary injunction should be issued only where the complaint shows on its face a clear right to relief and relies upon Stenzel v. Yates, 342 Ill. App. 435, 440, 96 N.E.2d 813; Skarpinski v. Veterans of Foreign Wars, 343 Ill. App. 271, 274, 98 N.E.2d 858; and Hope v. Hope, 350 Ill. App. 190, 194, 112 N.E.2d 495. These cases deal with the granting of injunctive relief based solely on the complaint, no notice having been given or hearing had. Here the chancellor conducted a hearing on factual issues that raised a debatable question of law of first impression as to the scope of the restrictive covenant. If he felt, in his discretion, that the status quo should be preserved for further proceedings and research, we cannot find an abuse of that discretion. Especially is this true in the absence of a showing by the defendant that the delay by reason of the temporary injunction would occasion serious injury to anyone. In Scholz v. Barbee, 344 Ill. App. 630, 101 N.E.2d 845, the court said:

“ ‘As to the question whether or not the complaint must state a cause of action before a temporary injunction may issue, it has been said that the question presented is not whether the complaint is not demurrable, hut does it prima facie state a cause of action. If it does, then the court in its discretion to keep the matter in status quo may issue the temporary injunction.’ ”

The same contention has been made by the defendant here, and he cites the same cases. The quoted opinion of the court effectively disposes of that contention.

Counsel for the defendant argues that under the facts in the instant suit equity should not take jurisdiction on the ground of preventing a multiplicity of suits. In Adams v. Oberndorf, 121 Ill. App. 497, the court quotes Mr. Pomeroy with approval and states as settled the following as a case in which equity has jurisdiction, viz.:

“ ‘In suits by a single party against a number of persons to restrain the prosecution of simultaneous actions at law brought against him by each defendant and to procure a decision of the whole in one proceeding where all these actions depend upon the same questions of law and fact.’ Pomeroy’s Eq. Jur., vol. 1, sec. 274. See also sec. 245; Edward Hines Lumber Co. v. Scott, 101 Ill. App. 523-527, and references there cited.”

The court also says that whether or not equity will interfere to prevent by injunction a multiplicity of suits depends upon the circumstances of each particular case and whether such interference is called for to discountenance useless litigation and prevent irreparable injury. However, we do not feel that it is material whether or not the trial court could or could not properly exercise jurisdiction on that particular ground. Here the injunction was sought and granted, not to prevent the bringing of the suits, but to prevent successive issuances of the capias.

The original purpose of the writ of capias ad respondendum was to assure the appearance of the defendant in court. It has become a means by which the defendant, if he should be unable to secure sureties satisfactory to the court who would agree to pay the judgment when entered or to turn over the body of the defendant to the court, may be confined in jail at the pleasure of the plaintiff, where the action is for a tort the gist of which is malice, for a period not to exceed six months. The trial court could properly take judicial notice that suits filed in the Circuit and Superior Courts of Cook County where a jury trial is requested are not ordinarily reached for trial in less than four years.

The plaintiff urges that a court of equity could take jurisdiction in the instant suit in order to prevent an abuse of process. In Patterson v. Northern Trust Co., 286 Ill. 564, it is said: “A court has inherent power to protect itself and litigants against harassing and vexatious litigation and an abuse of the process of the court.” Courts have frequently observed that the elements vital to an action for abuse of process are not clearly defined either by the cases or by writers on the subject. The reason apparently is that the term has been used as a designation for a variety of dissimilar situations which have in common only the fact that actionable injury was inflicted in connection with the use of judicial process and under circumstances such that the narrowly circumscribed action of malicious prosecution was inapplicable. “The test as to whether there is an abuse of process is whether the process has been used to accomplish some end which is without the regular purview of the process, or which compels the party against whom it is used to do some collateral thing which he could not legally and regularly be compelled to do.” 1 Am. Jur., Abuse of Process, sec. 6. In Coplea v. Bybee, 290 Ill. App. 117, the court said:

“Actual malice is unimportant if the process is wilfully used to accomplish the purpose intended, since unlawful acts wilfully done are to be deemed malicious as to those injured thereby. Therefore, if process is wilfully used to accomplish a purpose not justified by the law, it is an abuse for which an action will lie. The abuse consists in the unlawful method by which the act is done, and the intentional use of this method constitutes malice in law. 1 Am. Jur. Abuse of Process, secs. 6 and 8.

“Abusing the process of the law, to the injury of another, is of itself malicious. Schaper v. Sutter, 63 Ill. App. 257; Cripe v. Pevely Dairy Co., 275 Ill. App. 231.

“It is also held that in an action for abuse of legal process, it is not necessary to prove malice or want of probable cause, for the law will imply both, if an abuse is proven. Wicker v. Hotchkiss, 62 Ill. 107; Phoenix Mut. Life Ins. Co. v. Arbuckle, 52 Ill. App. 33.” See also Grainger v. Hill, 4 Bingham’s New Cases 212.

The plaintiff in his complaint alleged that the writs were sued out to harass the plaintiff and his wife and to compel them to borrow funds or to pledge their personal credit toward the payment of the debts incurred through the discounting of the invoices by the plaintiff as an officer of the bankrupt corporations and that the defendants knew that the plaintiff had no funds to pay premiums for bail bonds. The defendant contends that since the writs were or would be issued in compliance with the statute there was no threatened abuse of process which would entitle the plaintiff to relief in a court of equity. In his motion to strike the complaint the defendant argues that the mere statement of having “threatened” is not sufficient, but that the plaintiff should have stated the exact words by which the threats were made, and in support of his contention cites Peck v. Peck, 213 Ill. App. 665. This case in our opinion is a case strongly in favor of the plaintiff. It lays down the well-understood rule of law that the facts on which an inference arises must be stated in the complaint; and here a reading of the complaint amply substantiates the alleged inference.

The charge made in the complaint that the use of the successive issuances of the writ of capias ad respondendum was made for the purpose of compelling the plaintiff to borrow funds from friends or relatives and seek to pledge their personal credit toward the payment of the debts occasioned by the unpaid invoices is not an allegation known to our times alone. Apparently human nature does not change greatly. In the prologue to a remedial act governing capias ad respondendum passed in 1661 (13 Charles II, stat. 2, cap. 2), it is said:

“Whereas there is a great complaint of the people of this realm, that for divers years now last past, very many of his majesty’s good subjects have been arrested upon general writs of trespass quare clausum fregit, bills of Middlesex, latitats, and other like writs issued out of the courts of king’s bench and common pleas, . . . but those arrests have been many times procured by malicious persons to vex and oppress the defendants, or to force from them unreasonable and unjust compositions for obtaining their liberty; and by such evil practices many men have been, and are daily undone, and destroyed in their estates, without possibility of having reparation. . . .”

The complaint alleges that the threatened use of the process was for the purpose of compelling the plaintiff and his wife to secure funds or to pledge their personal credit toward the immediate payment of the alleged debts, which is a collateral end going far beyond what the plaintiff could legally and regularly be compelled to do under a capias. The facts set out in the complaint are sufficient to support the allegations. If the factual allegations in the complaint were true and well-pleaded, a ground for the exercise of equitable jurisdiction was properly presented to the court. Baird v. Community High School Dist., 304 Ill. 526, 529. We find they were well-pleaded. Their truth is admitted by the motion to strike.

The plaintiff in his brief urges that the statute violates the Constitutions of the United States and of Illinois. We have no power to pass on constitutional questions, nor can we speculate as to what position the Supreme Court of Illinois might take on a reexamination of this question properly presented to them. The law now is that imprisonment for debt in a tort action, where there has been a special finding by the trial tribunal that malice is the gist of the action, is not repugnant to the Constitution of the State of Hlinois. We agree with the statement made by Mr. Justice O’Connor in Pappas v. Reabus, 299 Ill. App. 499:

“The effect of the 1935 amendment to section 5 was to abolish executions against the body in tort actions in which malice is not the gist of the action, and also to forbid the issuance of a body execution even in actions in which malice is the gist of the action unless there is a special finding by the jury, or by the court where the case is tried without a jury, that malice is the gist of the action. Whether the legislature should have gone farther and abolished body executions in all tort actions, and whether the present statute is (out of time with the American spirit and has no place in American jurisprudence,’ as said in City of Chicago v. The Tribune, 307 Ill. 595 (which was an action for an alleged libel claimed to have affected the financial credit of the City) obviously is in the province of the legislature and not of the courts. (See Reinwald v. McGregor, 239 Ill. App. 240.)” (Italics ours.)

However, the fact that the issuance of the capias ad respondendum is permitted by law and that imprisonment under such a writ is not in conflict with the Constitution does not cover the issuance of such writs with a buckler of righteousness which makes them immune from the exercise of the remedial powers of a court of equity. A court of equity has the same inherent power to restrain the abuse of a capias as it has to restrain the abuse of any other process. The courts in modern times have shown a tendency to modify the rigors of the law relating to imprisonment. It has been held that where a trustee or receiver refuses to pay over money actually received and wrongfully withheld, a court of equity has no power to imprison such receiver or trustee unless it is clearly shown by the evidence that he has the money to pay or had it and wrongfully disposed of it. “Courts may imprison for willful defiance, but they will not imprison for a failure to comply with a decree where the disobedience is not willful. . . . Courts of equity proceed upon the principles of justice applicable alike to liberty and to property rights.” Tudor v. Firebaugh, 364 Ill. 283.

The trial court properly overruled the motion to strike the amended complaint and was not in error in issuing the temporary injunction complained of. The order of the Circuit Court is affirmed.

Order affirmed.

ROBSON and SCHWARTZ, JJ., concur.