author: PRESIDING JUSTICE DOVE

text:
    Edgar C. Hargadine and Zella M. Hargadine, Plaintiffs-Appellants, v. David H. Sharkey, as County Superintendent of Highways of Stark County, Illinois, and County of Stark, Illinois, Defendants-Appellees. Edgar C. Hargadine and Zella M. Hargadine, Plaintiffs-Appellants, v. David H. Sharkey, as County Superintendent of Highways of Stark County, Illinois, Defendant-Appellee.
    Gen. Nos. 10,834, 10,884.
    Second District.
    January 7, 1956.
    Released for publication January 25, 1956.

      Case Nos. 10834,10884: Robert H. White, of Geneseo, for plaintiffs-appellants.
    Eugene H. Bennick, Jr., of Toulon, for defendantsappellees.
   PRESIDING JUSTICE DOVE

delivered the opinion of the court.

On July 22, 1952, appellants, Edgar C. Hargadine and Zella M. Hargadine, husband and wife, filed their complaint in the Circuit Court of Stark County. Thereafter and on December 9,1953, they filed their amended complaint which consisted of six counts, and on July 14, 1954, an amended count five was filed. The sufficiency of the amended complaint, as so amended, was challenged by a motion to dismiss, and upon a hearing the court sustained the motion to dismiss as to counts one and five and denied the motion to dismiss as to counts two, three, four, and six. The plaintiffs elected to stand by counts one and five of the amended complaint, as amended, and an appropriate final order was entered on December 6, 1954, in bar of the action set forth in those counts. The plaintiffs appealed, and that case appears in this court under General Number 10834. Apparently count six was further amended, and on June 16, 1955, the court sustained a motion of the sole defendant in that court, David H. Sharkey, as County Superintendent of Highways of Stark County, Illinois, to dismiss count six of the amended complaint, as so amended, and from an appropriate judgment in bar of tbe action set forth in that count the plaintiffs appealed, and that case appears in this court under General Number 10884. Both appeals are disposed of in this opinion.

Amended count one, as amended, alleged that the plaintiffs were the owners of certain described farm land; that State Aid Road No. 4, Stark County, Illinois, approximately sixty feet wide, passes diagonally through plaintiffs’ land; that Spoon River runs in a southwesterly direction through a portion of plaintiffs’ land and intersects State Aid Route No. 4 at approximately right angles near the center of a described quarter-section of land owned by the plaintiffs; that west of Spoon River the land of the plaintiffs is bottom land, and State Aid Road No. 4 runs through this bottom land for a distance of approximately 100 rods to a bluff and then slopes upward over the bluff; that prior to 1939 there were ditches on both sides of State Aid Road No. 4 running from the top of the bluff and along each side of the road to Spoon River, so that the water coming into the road at the top of the hill and on the side slope of the hill drained through the ditches to the river; that in the year 1939, certain improvement work was done at this location on State Aid Road No. 4 by widening the road and the slope over the hill was lessened; that in making these improvements, almost the entire right of way for the road was used, and the ditches on both sides of the road from a point near the bottom of the hill extending to the river were filled or destroyed — thus eliminating the channels by which the water falling on the road and the hill could be carried to the river; that as a result thereof, the water now falling on the road and draining into the road comes down the ditches on each side of the road to a point near the bottom of the hill and then, because of a lack of any further channel along either side of the road, flows out onto the farm land of plaintiffs on both sides of the road. This count averred that the County of Stark had no legal right to so divert the hill water and to cast it upon plaintiffs’ land and alleged that as a result thereof plaintiffs suffered and will continue to suffer irreparable damage from the acts done by the defendants resulting from the diverting and flowing of water on the land of the plaintiffs.

The prayer of this count of the complaint is that the defendants, David H. Sharkey, as County Superintendent of Highways of Stark County, Illinois, and the County of Stark, Illinois, and its agents and representatives, “be restrained, by injunction, from diverting the water flowing down the road from the top of the hill out onto the plaintiffs’ land on both sides of said State Aid Road No. 4, and be ordered to construct adequate ditches on each side of State Aid Road No. 4, at the location herein referred to, to adequately and properly carry the water coming from the hill and road directly to Spoon River, and, in connection therewith, to take the proper legal action to secure additional right of way for said ditches.”

Count Y of the amended complaint, as amended, in addition to alleging plaintiffs’ ownership of the land described in count one and the location of Spoon River and State Aid Road No. 4 in relation thereto, then charges that Spoon River intersects State Aid Road No. 4 near the center of the described quarter-section of land which plaintiffs own; that from the point where Spoon River intersects this State Aid Road, Spoon River extends in a northeasterly direction through the lands owned by the plaintiffs, and that on the West side of Spoon River from the Slackwater Bridge (which is a bridge located on State Aid Road No. 4 where it crosses Spoon River) northeasterly to a point in the west half of a described quarter-section of land, there is a levee constructed of sufficient height and width to prevent floodwaters of Spoon River from overflowing the lands of the plaintiffs; that Indian Creek flows from the northwest in a southeasterly direction through, the lands of the plaintiffs into Spoon River, and that entirely along the southwesterly side of Indian Creek, where this creek borders the lands of the plaintiffs, there exists a levee of sufficient height and width to prevent the floodwaters of Indian Creek from flowing onto the lands of the plaintiffs, which levee extends from the bluffs to the junction of Indian Creek and Spoon River.

This count then goes on to allege that during the month of April 1950, the County of Stark, through its agents and representatives, permitted a large number of logs and a large quantity of debris to accumulate and become jammed in Spoon River at Slackwater Bridge; that these logs and this debris became lodged in the piers and abutments of Slackwater Bridge to form a dam in Spoon River, and that the defendant, County of Stark, knew of the existence of these logs and this debris and of the approximate consequences that might result from their accumulation; that on or about April 25, 1950, the waters in Indian Creek and Spoon River rose to flood stage as a result of rains to the north and this water was unable to pass under Slackwater Bridge in a satisfactory manner because of the logs and debris which had accumulated, and this water was thus impounded and caused to rise to a higher level because of the dam so created; that as a direct and proximate result of the dam, the water in Spoon River overflowed its west bank, where there was no levee, and flowed in a southwesterly direction to Indian Creek, and this water flowed with such force and rapidity that it caused the levee on the southwest side of Indian Creek to “blow out” in three places, digging holes in the lands of the plaintiffs ranging in depth to five feet and comprising an area of approximately twenty acres; that as a direct and proximate result of these washouts this land of the plaintiffs is not presently tillable and must be completely filled in with good, black, fertile soil if it is to be restored to its former degree of fertility; that as a further direct and proximate result of the act of the defendant, County of Stark, plaintiffs suffered damage in the year 1950 by the loss of thirty acres of crops; that in each of the years 1951 and 1952 the plaintiffs suffered the loss of crops on twenty acres of land and suffered the loss of two hundred rods of fence which was torn out by the water coming through the “blow outs” in the Indian Creek levee, and that said damage would not have occurred had it not been for the logs and debris which had accumulated at Slackwater Bridge. This count concluded by charging that the County of Stark, in permitting said logs and debris to so accumulate, has unlawfully and without just compensation acquired and appropriated to its own use that part of the plaintiffs’ lands and property damaged as aforesaid, contrary to Article 2, Section 13, of the Constitution of the State of Illinois and prayed for judgment against the County of Stark in the sum of Twenty Thousand Dollars. Attached to and made a part of the amended complaint, as amended, is a plat showing the lands owned by the plaintiffs, the location of Spoon River, Indian Creek, Slackwater Bridge, and State Aid Road No. 4, all referred to in said amended complaint as amended.

Counsel for the respective parties state that if the defendants are amenable to be sued for the alleged acts charged against them in this amended complaint as amended, then the judgment appealed from should be reversed. Counsel agree that only one question is presented by this record for our determination and that is whether a county and its superintendent of highways may be sued for the cause of action alleged in count one of the complaint and whether a county may be sued for the cause of action alleged in count five of the complaint. This question was properly raised in the trial court by the limited and special appearance of the defendants and their motion to dismiss.

Counsel for appellees insist that counts one and five of the complaint are based upon alleged tortious acts committed by defendants and that where the doctrine of respondeat superior applies counties are immune from actions sounding in tort. Counsel for appellants readily admit that in some instances a county cannot he sued for a tort hut insists that count one of the instant complaint charges the defendants with unlawfully diverting water upon the lands of the plaintiffs; that a county or its superintendent of highways has no legal right to do so and, under the authorities, appellants.are entitled to an injunction restraining defendants from continuing their illegal acts. Counsel for appellants insist that the gist of count Y is that Slackwater Bridge restricted the flow of water in Spoon River, resulting in injury to appellants’ property and that a county may he made to respond in damages under such circumstances.

Young v. Commissioners of Highways, 134 Ill. 569, was a suit brought against the Commissioners of Highways of the Township of Maquon, Knox County, to enjoin them from digging a ditch along the south side of the highway adjoining the lands of the plaintiff and to restrain them from diverting surface waters from their natural channels and discharging these waters upon the lands of the plaintiff through a ditch which they proposed to dig. The complaint alleged that the plaintiff owned 440 acres of land in Section 23 of Maquon Township and that the Commissioners of Highways of that township proposed to cut, and, in fact, had partly cut, a ditch four feet wide and eight feet deep on the road running from Spoon River through Salem Township, which road ran parallel with the plaintiff’s 440 acres of land, and which ditch, if made, would drain at least one-third of Salem Township and throw upon plaintiff’s land the water which accumulated, taking the water out of its natural course and flooding plaintiff’s premises, thereby doing him irreparable damage by reason of changing the natural flow of the water and casting it upon plaintiff’s property. By their answer, the Commissioners of Highways denied these allegations, but upon a hearing the court found the evidence sustained the same and a decree was rendered in favor of the plaintiff in accordance with the prayer of his complaint. The Appellate Court, on appeal, reversed this decree, and the Supreme Court reversed the Appellate Court and affirmed the decree of the circuit court. The court, in discussing the case, said (p. 581): “From an examination of the evidence but one conclusion can be reached, and that is, that the commissioners of highways have diverted the water from its natural course, and turned it upon the land of complainant. Does the law authorize this action? The commissioners of highways, where they undertake to drain a public highway, possess the same rights, and are to be governed by the same rules, as adjoining land owners who may undertake to drain their own lands, except where they may be proceeding under the eminent domain laws of the State.” The court then cited and quoted from Peck v. Herrington, 109 Ill. 611, and continued: “Under the rule established in this case, it seems plain that where water accumulating in a particular part of a highway will naturally run off in a certain channel or water-way, all that portion of the highway which lies in such a position as to naturally drain in that direction may be drained in such channel, although the flow of water may be increased. But the commissioners have no right or power to collect and carry a quantity of water along the highway which would naturally drain off in another direction, and discharge such accumulated water on the farm of an adjoining land owner. Nor have the commissioners the right to divert water from its regular channel, or place where it would naturally flow off, and carry it along the line of the highway, in ditches, for such a distance as they may desire or think proper, and then discharge that water upon the farm of a land owner. This would be imposing a burden on the land owner, which the law will not tolerate.”

In Holm v. County of Cook, et al., 213 Ill. App. 1, it appeared that the County of Cook maintained and operated an infirmary while the plaintiff, Holm, owned an adjoining farm. The plaintiff installed on his farm a drainage tile that entered into the Calumet Drainage District. Into this tile the infirmary discharged its sewage and other foreign matter. The plaintiff claimed that Cook County, by its conduct, had appropriated his tile. Defendant, County of Cook, contended that, being a municipality in the exercise of its governmental functions, an action in tort would not lie against it. The court held that the trial court erred in directing a verdict for the defendant and stated that the declaration set up a state of facts from which it appeared plaintiff’s property had been both taken and damaged for public use without compensation. The court in its opinion quoted from Dillon on Corporations and then went on to say: “So, in the case at bar, the defendant, Cook County, acting within its general powers, constructed the said infirmary, the proper use of which required a sewerage system. In connecting its sewerage system with plaintiff’s said tiling system and in using the latter to carry off the sewerage from the infirmary — a use for which it was clearly not intended and to which plaintiff did not consent — the defendant wrongfully appropriated and damaged plaintiff’s property for public use. If, on the other hand, defendant’s position were tenable, viz., that a county may never be sued in tort, then the aforesaid provision of our Constitution would be in fact nugatory, for it would leave the injured person remediless in situations as here presented.”

In Roe v. County of Cook, 358 Ill. 568, a judgment for a substantial amount was recovered against Cook County by the plaintiff for damages for the alleged taking and damaging of plaintiff’s real estate. In Ms declaration, plaintiff alleged that the County of Cook constructed a subway wMch cut off access to and from his premises and built a stairway which encroached upon a public sidewalk located upon plaintiff’s property. Judgment by default was entered against the County, and, on appeal, the defendant contended that no liability existed against it because it was a municipal corporation. The plaintiff relied upon Article 2, Section 13 of the Constitution which provides that private property cannot be taken for public use without compensation. In discussing these contentions, the court said (pp. 572-3): “We now turn to a consideration of the form of action in this case to ascertain whether the county of Cook is exempted from liability at common law because it is an involuntary municipal corporation. The liability of a county to respond in an action at law for damages resulting to an abutting property owner no part of whose land was physically taken in an eminent domain proceeding was directly involved in County of Mercer v. Wolff, 237 Ill. 74, where the cross-petition was stricken and petitioner ‘remitted to his action.at law for his damages.’ The same doctrine was approved in the more recent case of Illinois Power and Light Corp. v. Talbott, 321 Ill. 538, where it was said: ‘The constitution, in prohibiting the taking or damaging of private property for public use without just compensation, recognizes the right of the owner of property damaged by a public work to recover the amount of such damages. This right may be asserted by the owner as a plaintiff in an action at law where none of his property is actually taken, or as a defendant to an eminent domain proceeding for the condemnation of property actually taken. (County of Mercer v. Wolff, 237 Ill. 74.) In either case the right to the damages is the same, and its basis is the constitutional prohibition mentioned.’ ”

In the instant case, defendants argue that Savoie v. The Town of Bourbonnais, 339 Ill. App. 551, supports their position that plaintiffs are not entitled to the injunction prayed for by count I of their complaint. In that case, an artificial drainage ditch was built by the defendant, Town of Bourbonnais, in 1893. The building of this ditch caused the water which formerly followed a natural water course, and which frequently overflowed on the plaintiff’s land, to use the artificial ditch. About 1949, this artificial ditch became filled up and out of repair and overflowed onto the plaintiff’s premises. The plaintiff sought a mandatory injunction against the Town of Bourbonnais to require it to clean out the ditch. The court denied recovery and held it was the duty of the plaintiff to maintain the ditch. The court said that the defendants could not be compelled to perpetually secure plaintiff’s property rights for him against the adverse forces of nature, but that it was up to the plaintiff to maintain the easement which he had in the artificial ditch. The court then went on to point out that the defendants had not attempted by any overt act to restore the water to its original course (something which the court stated the defendant would have no right to do) and that there was no allegation that plaintiff had been deprived of the right to protect his easement in the artificial drain and keep it in repair, and, therefore, there was no infringement of plaintiff’s prescriptive rights which would warrant the issuance of a mandatory injunction or justify an award of damages. In the Savoie case the defendants took no affirmative action nor committed any overt act which diverted water upon plaintiff’s lands or otherwise harmed him. The plaintiff’s own failure to maintain the drainage ditch servicing his land was the cause of any damage he suffered. This clearly distinguishes the Savoie case.

Plaintiffs here allege in count I that in 1939 certain improvement work was done on the road which runs through or along their premises by the defendant, Stark County, so that the road was widened and the slope of the road over the hill was lessened, and in doing this, the ditches on both sides of the road from a point near the bottom of the hill to the river were filled or destroyed, and that this eliminated the channels by which the water previously had been carried to the river. It was then alleged that, as a result of this improvement work by the County, the water which now falls on the road when it rains and the.water which drains into the road comes down the ditches on each side of the road to a point near the bottom of the hill, and then, because the channels which the water formerly followed no longer exist, this water flows onto the farm land of the plaintiffs on each side of the road. The County thus, by its improvement project, has diverted water which formerly followed established channels onto the plaintiffs’ land. In the Young case, 134 Ill. 569, supra, the Town Commissioners of Highways were enjoined from digging a ditch which would divert surface water onto the adjoining land of the complainant. The only difference between the Young-case and this case is that here the improvement work has already been done. Certainly, if the Highway Commissioners can be enjoined before the ditch is dug, they cannot escape liability merely because the wrongful act is completed before suit is filed. Count I, as amended, of plaintiffs’ amended complaint in our opinion states a good cause of action based upon the wrongful diversion of waters upon plaintiffs’ lands.

Count five is directed against the County of Stark, and by it the plaintiffs seek to recover damages alleged to have been caused to their lands by water overflowing the dikes of Indian Creek. It is alleged that the defendant, Stark County, in the month of April, 1950, and immediately prior thereto permitted logs and debris to accumulate and become jammed at the piers and abutments of Slaekwater Bridge on Spoon River; that on April 25, 1950, as a result of rains to the north of said bridge, the water in Indian Creek and Spoon River rose to flood stage and, on account of the dam caused by the logs and debris, the water was not able to pass under the bridge, and as a result thereof the water in Spoon River overflowed its west bank; that after flowing over the west bank of said river, it flowed toward Indian Creek with such rapidity and force as to cause a levee on the southwest side of Indian Creek on plaintiffs’ land to, “blow out” in three places and flood their land destroying fences and crops. It was then alleged that the damages which plaintiffs suffered were the direct and proximate result of the defendant’s allowing the accumulation of logs and debris at Slackwater Bridge.

Counsel for appellants admit that under the authorities a county cannot be sued for a tort but insist that the gist of appellants’ action, as stated in count five, is that substantial damage was done plaintiffs’ property as a result of defendants’ action in restricting the flow of water in Spoon River and that this amounts to a violation of the constitutional provision prohibiting the damaging of private property without adequate compensation. This count does not allege that the County has appropriated or used plaintiffs’ land. It does allege that as a result of the lodgment of logs and debris at the bridge, water in Spoon River, after it rose to flood stage, was unable to pass under the bridge. Permitting logs and debris to accumulate and become jammed at the piers and abutments of the bridge was the wrong or tort charged against the County, and what the plaintiffs sought to recover by this count was damages occasioned thereby. Count five, therefore, sounds in tort, and the trial court properly so held. (Hedges v. The County of Madison, 1 Gilm. (6 Ill.) 567; Roe v. County of Cook, 358 Ill. 568, 573-4.)

Amended count six, as amended, is directed against David H. Sharkey, County Superintendent of Highways of Stark County, Illinois, and by it the plaintiffs seek to recover a money judgment for damages allegedly sustained by them as a result of the issuance of a temporary injunction without notice and without bond by the Circuit Court of Stark County.

This count alleged that on May 29, 1951, the County of Stark filed its complaint against Edgar Hargadine and others, which complaint was verified by defendant, David H. Sharkey, Superintendent of Highways of Stark County, and among other things, this complaint alleged the ownership by plaintiffs of certain described lands, the existence and location of Spoon River, Indian Creek, levees, State Aid Route No. 4, and Slack-water Bridge, all as set forth in the other counts of the amended complaint as amended. This count then charged that defendants were taking action to widen and deepen Spoon River north of Slackwater Bridge and prayed for a temporary injunction restraining defendants from raising and widening the levee along Spoon River in Section 33 in excess of that permitted by a prior order of the County Court of Stark County. This count then alleged that a temporary injunction was granted which, among other things, prevented Edgar Hargadine from doing any work on that portion of the levy along Spoon River in Section 33 south of Slackwater Bridge.

This count then alleged that on or about July 17, 1951, the circuit court, on motion of the defendants, modified the order granting the temporary injunction and removed therefrom the restraint against doing any work on that portion of the levee in Section 33 south of Slackwater Bridge and charged that while said temporary order was in effect plaintiffs were injured in that, subsequent to the issuance of said injunction and prior to its modification, Spoon River became flooded and waters went through the levee immediately south of Slackwater Bridge at points where the levee was weakened, destroying plaintiffs’ crops, which would not have occurred if the injunction had not been issued as plaintiffs planned to and would have repaired said levee prior to the flood except for the injunction. It was further alleged that the action in securing a temporary injunction insofar as it related to any work on the levee south of Slackwater Bridge was malicious and without probable cause and was granted without notice and without bond.

The sufficiency of this amended count, as amended, to state a cause of action against the defendant was challenged by a motion to dismiss, setting up the grounds therefor; viz.: that the defendant signed the verification to the original complaint for injunction in his official capacity as County Superintendent of Highways of Stark County; that Stark County is a municipal corporation and immune from liability, as is its officials; that the original temporary injunction was subsequently modified by the consent and agreement of the parties; that the temporary injunction as so modified by agreement was subsequently made permanent by the chancellor; that the flood waters referred to in this count were an Act of God of which defendant had no control; that there is no allegation that defendant acted negligently or wrongfully and that the alleged damages are remote and speculative. Upon a hearing this motion was sustained, and from an appropriate final judgment thereon plaintiffs appeal.

Counsel for appellants insist that this count states a good cause of action against Sharkey for malicious prosecution. We do not think so. The only charge made in count six against the sole defendant, David Sharkey, Superintendent of Highways of Stark County, is that he verified the complaint filed by the County of Stark, which resulted in the issuance of a temporary restraining order. Sharkey signed this verification in his official capacity as an administrative officer of Stark County and as its County Superintendent of Highways. A suit for malicious prosecution is a suit sounding in tort. Stark County could not, under the authorities, he sued in tort, and, if the County for which Sharkey was acting could not he sued, then such immunity extends to him as an administrative officer of such County. A municipal corporation or quasi-municipal corporation can only act, as has been said, through its officials, agents, and representatives.

The County of Lake v. Cuneo, 333 Ill. App. 164, was a suit by the County of Lake to restrain the defendant from proceeding with the construction of a barn in alleged violation of the provisions of a County Zoning Ordinance, and a temporary injunction was so issued. Thereafter, the defendant answered and filed a counterclaim on the theory that the zoning ordinance was not applicable. The counterclaim prayed for an order restraining the county from interfering with the defendant in the erection of the barn. A hearing was had upon the pleadings, resulting in a decree making the temporary injunction permanent and dismissing the counterclaim. On appeal, this decree was reversed and the cause remanded with directions to enter a decree in favor of the defendant and issue a permanent injunction as prayed for in the counterclaim. Upon reinstatement of the case in the circuit court, a decree was entered in accordance with the mandate of this court, and the defendant filed his suggestion of damages which, on motion, was stricken, and an order entered denying all damage to the defendant, and he again appealed. (The County of Lake v. Cuneo, 344 Ill. App. 242.) In affirming the judgment and order of the circuit court, this court stated that the law has been settled in this state since 1844 that a County is not liable in an action sounding in tort to any individual who was injured by reason of its negligence and, after citing and reviewing numerous cases, said: (p. 250) “The wrong of obtaining an invalid injunction in an action sounding in tort is and must be as much a wrong as if a county maintained a defective bridge which caused injuries to innocent persons. The wrong in obtaining the invalid injunction was created and could only be created by an act of an agent or attorney for the county. It must be admitted that the obtaining of a preliminary injunction was within the scope of the governmental functions of the county. We can see no distinction between the wrongs created by the acts of the county in the many cases above cited and the wrong created here. They are all wrongs committed by the county or like municipal corporations, tortious in character and under the law not compensable.”

It is also a well-established principle of law that no action for malicious prosecution will lie until the original proceedings complained of have been legally and successfully terminated in favor of the original defendant, who, in this case, would be the present plaintiffs. (Daily v. Donath, 100 Ill. App. 52.) This case sets forth the necessary elements required to maintain a suit for malicious prosecution, and a legal termination in favor of the original defendant is one of the elements held to be necessary. In order to state a cause of action for malicious prosecution, it must be alleged in the complaint that the original suit against the plaintiff in the suit for malicious prosecution has been legally terminated; (Bonney v. King, 201 Ill. 47.) Count six of the complaint in question contains no such allegation. The record further discloses that the injunction obtained by the defendant Stark County was modified insofar as it restrained the plaintiff, Edgar C. Hargadine, from doing any work on the levee south of Slackwater Bridge, and, further, the record shows that this modification was made in open court by the consent and agreement of said plaintiff and Stark County. The law is that where an- action is terminated by agreement or consent of tbe parties thereto or by the procurement of the defendant to that action as a matter of favor, there is no such termination as is necessary to support an action for malicious prosecution. (Barth v. Keller, 315 Ill. App. 200, 206; Ewe v. Angland, 325 Ill. App. 677, 689.)

The circuit court erred in sustaining the motion to dismiss count one of the amended complaint, as amended, and for that error the judgment order entered in Case No. 10834 is reversed in part and that cause is remanded with directions to overrule the motion to dismiss count one and enter an order requiring the defendants, The County of Stark and David H. Sharkey, as County Superintendent of Highways of Stark County, to answer that count. The judgment of the circuit court as to count five in Case No. 10834 is affirmed. The judgment of the circuit court in Case No. 10884 is affirmed.

The judgment in Case No. 10834 is affirmed as to count five; as to count one, the judgment is reversed and the cause remanded with directions.

The judgment in Case No. 10884 is affirmed.

EOVALDI and CROW, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    James Galvan, Appellee and Cross-Appellant, v. Louis Torres, Appellant and Cross-Appellee.
    Gen. No. 10,860.
    Second District.
    January 10, 1956.
    Released for publication January 30, 1956.

      George H. Wiley, of Ottawa, and Taylor E. Wilhelm, of Mendota, for appellant; Fred Wagner, of Mendota, of counsel.
    Zwanzig, Thompson and Lanuti, of Ottawa, for appellee.
   PRESIDING JUSTICE DOVE

delivered the opinion of the court.

The complaint in this case alleged that the plaintiff, James K. Galvan, lived at 313 East Marquette Street and that the defendant, Louis Torres, lived at 315 East Marquette Street in Ottawa, Illinois, and that they both lived at said places on and prior to June 20, 1953; that at about 1:30 o’clock on the morning of that day, the defendant maliciously and wantonly assaulted the plaintiff while he, the plaintiff, was in his own yard, by slashing him with a knife inflicting serious wounds upon many and diverse parts of his body, and that as a result thereof the plaintiff suffered great pain, expended large sums for doctor and medical bills, was prevented from attending to his ordinary occupation and business, and was permanently injured. The answer of the defendant admitted that the parties lived in Ottawa as alleged but denied all the other averments of the complaint. Upon a jury-trial of the issues thus made, a verdict was returned finding the defendant guilty and assessing the damages of the plaintiff at $10,000. After denying defendant’s motions for a new trial and for judgment notwithstanding the verdict, the trial court entered judgment on the verdict. Thereafter plaintiff filed a motion to modify the judgment to include therein a finding that malice was the gist of the action. The court denied this motion. The defendant has appealed from the judgment entered against him, and the plaintiff has filed a cross appeal from the order of the court denying his motion for a finding that malice was the gist of the action.

Counsel for appellant insists (1) that the court erred in refusing to withdraw a juror and declare a mistrial because of prejudicial statements made in the presence of the jury by counsel for the plaintiff; (2) that the trial court improperly admonished counsel for defendant in the presence of the jury during the trial; (3) that the court erred in admitting certain evidence offered by the plaintiff and in refusing to admit certain evidence offered by the defendant. It is also insisted that the verdict is excessive and the result of prejudice against the defendant which was created by the erroneous rulings of the court and the deliberate misconduct of counsel for the plaintiff.

The evidence discloses that the plaintiff, his wife, Beatrice, and daughters, Aurora and Angela, lived at 313 East Marquette Street in Ottawa. The lot upon which their home was located was eighty-eight feet wide and one hundred thirty feet deep. The home of the defendant was immediately east and adjoining the Galvan lot, and their residences were about forty feet apart and separated by a hedge fence. According to the testimony of the plaintiff, he, the plaintiff, arrived at his home about five o’clock on Friday afternoon, June 19, 1953, from his work as a bricklayer’s helper. After he had had his evening meal, he left home about seven o’clock, paid a coal bill to a Mr. Bnrke, and then he and Burke went to a tavern where they remained an hour and a half, during which time the plaintiff drank two bottles of beer. Mr. Burke went home, and the plaintiff proceeded to another tavern and remained there until after midnight. At the second tavern he had four or five bottles of beer. He than proceeded to another tavern, where he remained for fifteen minutes, and had a glass of beer there. He then proceeded homeward, entering his lot at the rear, and singing as he went along. Sitting upon the steps of the back porch of his home were his wife and daughter, Angela, and when the plaintiff arrived there he stopped singing. He refused his wife’s suggestion to go into the house and go to bed but sat down on the porch step, took his shoes, socks, and hat off, cursed the mosquitoes, laid down on the ground under a pear tree three or four feet from the southeast corner of the steps of the rear porch and immediately went to sleep and knew nothing until the following Sunday morning when he awakened at the Byburn-King Hospital in Ottawa.

According to the testimony of plaintiff’s wife and daughter, Angela, they remained on the porch steps after the plaintiff had laid down under the pear tree. About fifteen minutes after he had gone to sleep, the daughter observed the defendant coming very slowly through the hedge from his property onto the G-alvan premises. He had a knife in his hand and, without a word, proceeded to cut the prostrate body of the plaintiff. The other daughter of the plaintiff, Aurora, was in the house asleep but was awakened by her sister and ran to the yard and saw the defendant “slashing” at her father with a knife. She called to the defendant to stop and ran for help. Police officers arrived shortly thereafter, and they testified that they found the plaintiff lying on the ground about six feet from the porch of his home all covered with blood and with his hat and a pair of shoes and socks lying next to his body. The blood was all in one place and in tbe form of a pool near tbe pear tree. An ambulance was called, and tbe plaintiff was removed to tbe Ryburn-King Hospital.

Tbe defendant’s testimony was to tbe effect that be was born in Mexico and unable to read or understand tbe English language. He testified that when tbe plaintiff returned borne about 1:30 o’clock on tbe morning of June 20,1953, be was awakened by Galvan shouting in tbe window of tbe defendant’s borne that be was going to kill tbe defendant and bis family; that be looked out tbe window of bis bedroom and saw Galvan; that tbe defendant then put on bis shoes and trousers and went outside to meet Galvan, and a fight between him and tbe plaintiff ensued. He stated that Galvan sang indecent words to him and started to kick him in tbe stomach and legs; that be, tbe defendant, then took bis knife from bis pocket and struck tbe plaintiff on tbe shoulder; that Galvan then went into bis (Galvan’s) yard and tbe fight was continued and Galvan fell under tbe pear tree and tbe defendant returned to bis own borne. Defendant denied that be ever cut Galvan after be fell, insisted that Galvan was not asleep at any time and testified that be did not see Mrs. Galvan or either of tbe daughters there that evening.

"When counsel for tbe plaintiff was stating bis case to tbe jury, be outlined tbe facts that be expected to prove on behalf of tbe plaintiff. These included tbe fact that tbe defendant bad been indicted for making an assault with an intent to inflict a bodily injury upon tbe plaintiff and that tbe defendant bad pleaded guilty to this indictment. Counsel for defendant objected to these statements, but bis objection was overruled. Upon tbe trial tbe court overruled defendant’s objection to tbe introduction of this indictment and defendant’s written plea of guilty thereto. Counsel now insist this was error. There is no merit in this contention. A plea of guilty to a criminal indictment for assault and battery is admissible in evidence in a civil case based upon tbe same assault and battery as it is an admission against interest. (Young v. Copple, 52 Ill. App. 547; Cammarano v. Gimino, 234 Ill. App. 556.) The defendant did not seek to explain bis plea of guilty, nor was be asked by bis counsel why be pleaded guilty. Sucb evidence would have been admissible.

Tbe defendant offered certain testimony tending to prove self-defense, justification or excuse for bis assault upon tbe plaintiff, but tbe court refused to admit sucb evidence, and under tbe pleadings of this case tbe ruling of tbe court was clearly correct. (Chicago Title & Trust Co. v. Core, 223 Ill. 58; DeFreitas v. Nunes, 156 Ill. App. 17.) Tbe defendant also offered certain testimony relative to bis good cbaracter and reputation and the bad cbaracter and reputation of tbe plaintiff. Since tbe assault was admitted by tbe defendant, cbaracter and reputation were not an issue in tbe case and were not a proper subject of inquiry, and evidence relative to tbe same was not admissible. (Reimenschneider v. Neusis, 175 Ill. App. 172; Cummins v. Crawford, 88 Ill. 312.)

Nor do we believe that tbe verdict of tbe jury is excessive. Tbe special damages proved amounted to $2,776 and consisted of hospital and doctor bills and loss of wages. Tbe medical testimony showed that tbe plaintiff was in a semicomatose condition upon bis arrival at tbe hospital. He required tbe attention of three surgeons who treated tbe multiple lacerations which they found on bis torso, band, back, neck, arms and abdomen and which required more than five hundred sutures. He remained in tbe hospital fifteen days and was incapacitated from doing any work for a considerable length of time. It also appeared that be bad many permanent scars and suffered a serious permanent injury to bis left arm, wrist and band and that be had almost a complete loss of the muscles which control the closing and spreading of the fingers and which affect the strength of the hand.

As to the cross error assigned by the plaintiff, the trial court was right in its ruling denying the motion of plaintiff to modify the judgment so as to include therein a finding that malice was the gist of the action. There was no finding by the jury in this case that malice was the gist of this action. In Ingalls v. Raklios, 373 Ill. 404, the court said (p. 407): “The remaining question leads to a consideration of statements contained in the judgment. In First National Bank v. Burkett, 101 Ill. 391, where the court in considering a case of this character said that ‘the term “malice” in this form of action is not to be considered in the sense of spite or hatred against an individual but of malus animus and as denoting that the party is actuated by improper and indirect motives,’ and in considering whether malice was the gist of the action it was stated: ‘The gist is defined to be the cause for which an action will lie — -the ground or foundation of a suit, without which it will not be maintainable — the essential ground or object of a suit, and without which there is not a cause of action.’ From these definitions it is apparent that a defendant could be actuated by malice in committing a tort against the plaintiff and yet malice not be the gist of the action. The statement in the judgment that the court makes a special finding of malice is not the equivalent of a finding that malice was the gist of the action upon which judgment was entered.” Since the gist of an action for assault and battery is not malice, a special finding by the court in this case that the gist of the action was malice, as requested by plaintiff, would have been improper.

Counsel for appellant complains of the trial court’s conduct toward him and calls our attention to this statement made by the trial court: “I want to state that conduct of counsel for defendant in this case has been shameless. He has hollered at the Court in a loud and continuous manner. Not only has he done it in this case but in the McKenzie case and in the Carver case. His conduct is crude and shameless and he shows no regard whatever for his duty as an officer of this Court.” This statement was not made in the presence or hearing of the jury. An examination of the record in this case convinces us that the trial court was a “monument of patience” during the entire trial of this cause. While the typewritten and printed pages of the record and abstract cannot reflect whether the statements of counsel in addressing the court or counsel were loud or soft, no one can read this record without concluding that in repeated instances the remarks and statements of counsel were inordinate, unduly repetitious, intemperate, and inconsiderate, and the trial court’s appraisal of counsel’s conduct is abundantly supported by the record.

Our rules require counsel for appellant to prepare a fair and adequate abstract of record. This was not done in this case. The record in this case consists of 436 pages. Appellant filed an abstract of forty-four pages, but counsel for appellee was obliged to supplement this abstract with an additional one of thirty-eight pages. In his argument counsel for appellant states that the trial court referred to the plaintiff and then inquired of counsel for appellant “How can you impeach a man who is asleep?” Counsel for appellant then comments: “The court (by this inquiry) practically told the jury that the defendant’s testimony was false, that there was no fight and that Torres cut a sleeping man who never wakened. This,” concludes counsel, “amounted to a verbal direction by the judge to the jury, that the plaintiff told the truth and Torres lied.” Counsel then calls our attention to the testimony of Torres to the effect that the plaintiff and defendant started to fight at the southwest corner of defendant’s house and concludes that “the court by his statement usurped the jurors’ prerogative and determined the contested issue of fact for them.” An examination of the record in this case discloses that the court, outside the presence of the jury, had a discussion with counsel in connection with an offer of proof, and that counsel for appellant said to the court: “Is it the court’s position that because he (the plaintiff) was asleep that nothing happened that night, — therefore it is the court’s position thát we cannot go into that because he (the plaintiff) stated nothing happened.” The court then said: “How can you impeach him when he says he was asleep?” To which counsel said he just wanted to get the position of the court. The record then shows that following this discussion the jury returned into court. This court should be able to rely upon the abstract of the record as prepared by counsel for appellant and upon counsel’s statement and should not he required to examine the record to ascertain the facts; neither should counsel for appellee he required to furnish an additional abstract in order to correctly present the record to this court.

We find no reversible error in this record, and the judgment of the trial court will be affirmed.

Judgment affirmed.

EOVALDI and CROW, JJ., concur.


author: PRESIDING JUSTICE LEWE.

text:
    R. A. Muldoon, Appellee, v. Florence B. Deddo, Appellant.
    Gen. No. 46,724.
    First District, Third Division.
    December 14, 1955.
    Rehearing denied January 3, 1956.
    Released for publication January 26, 1956.
    Tenney, Sherman, Bentley & Guthrie, for appellant; John P. Forester, of counsel; Aaron Soble, for appellee.
   Opinion by

PRESIDING JUSTICE LEWE.

Not to lie published in full.


author: JUDGE FEINBERG.

text:
    Maurice E. Thoele, Appellant, v. S. H. Mazel and Helen Mazel, d/b/a Mazel and Company; Superior Paint Stores, Inc., William Thoele, d/b/a Atomic Venetian Blind Service, Defendants, Phillip G. Burgiegi, d/b/a Elm Die Cutting, Appellee.
    Gen. No. 46,702.
    First District, Third Division.
    December 14, 1955.
    Rehearing denied January 3, 1956.
    Released for publication January 26, 1956.

      Casimir W. Waehowski, and M. C. Zaeharias, for appellant; Casimir R. Waehowski, M. C. Zaeharias, and William M. Daemicke, of counsel; McNamara, Yoigt, Green & Nordstrand, for appellee; Charles D. Snewind, of counsel.
   Opinion by

JUDGE FEINBERG.

Not to be published in full.


text:
    Sunbeam Corporation, Appellee, v. Richard’s Appliances, Inc., and Richard L. Greer and Janice Greer, Copartners Doing Business Under Trade Name and Style of The House of Greer, Defendants, Richard L. Greer and Janice Greer, Appellants.
    Gen. No. 46,703.
    First District, Third Division.
    December 14, 1955.
    Rehearing denied January 26, 1956.
    Released for publication January 26, 1956.

      Sherwin & Sherwin, for appellants; Julius L. Sherwin, and Theodore R. Sherwin, of counsel; Finn & Van Mell, for appellee; Herman T. Van Mell, of counsel.
   Opinion by

JUDGE FEINBERG.

Not to be published in full.


author: JUSTICE SCHEINEMAN

text:
    In the Matter of Estate of Mary E. Dillman, Deceased. Warren Calvert, as Administrator of Estate of Mary E. Dillman, Deceased, Appellant, v. J. W. Dillman, as Administrator of Estate of Noah Dillman, Deceased, Appellee.
    Term No. 55-0-23.
    Fourth District.
    November 1, 1955.
    Modified opinion, February 14, 1956.
    Released for publication February 14, 1956.

      Dale Wilson, of Newton, for appellant.
    J. A. Eaton, of Newton, for appellee.
   JUSTICE SCHEINEMAN

delivered the opinion of the court.

This appeal involves objections to the final report and account of Warren Calvert as administrator of the estate of Mary E. Dillman, deceased. She and her husband, Noah Dillman, died as a result of a common accident, but the husband survived the wife by a few hours. She had a small amount of personal estate and left no children surviving her.

The report disclosed that most of the personal estate of Mary E. Dillman had been expended for funeral expenses, claims, and costs of administration, leaving less than $40 to be paid over to the husband’s estate. However, no spouse’s award had been fixed and allowed and this was one of the objections to the report.

It also appeared that the administrator had obtained a settlement of $1,400 for the wrongful death of Mrs. Dillman. The administrator contended that after payment of attorneys’ fees out of the fund it should be distributed to Mrs. Dillman’s nephews and nieces as her next of kin. This was objected to in behalf of the Noah Dillman estate on the ground it was not in accordance with the wrongful death statute.

The objections were sustained by the county court sitting in probate. Warren Calvert as administrator appealed to the circuit court, with the same result, and he has now perfected this appeal as sole appellant. The sole appellee is J. W. Dillman, administrator of the estate of Noah Dillman, deceased. The decree appealed from ordered a spouse’s award of one thousand dollars allowed as a second-class claim. Appellant contends this was error on the ground there was no need to provide for support of a husband who survived his wife by only a few hours.

It is true that the award, in the first instance, is based on the need for support during administration. But the statute further provides that the miuiTrmm shall be $1,000 and the personal representative of a surviving spouse makes the selection in case that spouse dies before payment. Ch. 3, Ill. Rev. St., Secs. 330 and 333 [Jones Ill. Stats. Ann. 110.427 and 110.430]. The rule is correctly stated in James’ Illinois Probate Law and Practice, Sec. 178.5 (e) as follows:

“The death of a surviving spouse before obtaining the award does not defeat the right to the award and the right may be asserted by her representative. This was true under the former law and it is true under the Probate Act.”

As to the funds recovered under the Wrongful Death Act, the court allowed $500 as attorneys’ fees in that proceeding and directed that the balance be used for payment of claims and funeral expenses. It ordered that the net estate of Mrs. Dillman be paid to the Noah Dillman estate. By virtue of the spouse’s award and attorneys’ fees, computation indicates there will be no such balance.

Appellant contends that the death of Noah Dillman caused his rights as husband under the Wrongful Death Act to abate, thus leaving Mrs. Dillman’s nephews and nieces as next of kin under the Act, citing Wilcox v. Bierd, 330 Ill. 571. The cited' ease is misconstrued. The decision specifically held that the persons entitled to recover for wrongful death are determined as of the time of the death which gave rise to the cause of action; and upon the death of such persons before recovery, the right of action abates and no new class of next of kin is created.

This is the law by virtue of the Wrongful Death Act, Ch. 70, Ill. Rev. St., Sec. 2 [Jones Ill. Stats. Ann. 38.02], which provides that recovery thereunder is for the exclusive benefit of the widow and next of kin of the deceased as provided “by law in relation to the distribution of personal property left by persons dying intestate.” The word “widow” includes “widower,” Cleveland, C., C. & St. L. Ry. Co. v. Baddeley, 150 Ill. 328

By our law of descent, Ch. 3, Ill. Rev. St., Sec. 162, paragraph 3 [Jones Ill. Stats. Ann. 110.258, subd. 3], the surviving husband of a woman who dies intestate without descendants receives the entire net personal estate of the decedent. Since this is the distribution referred to in the Wrongful Death Act, above quoted, it follows that the nephews and nieces of Mrs. Dillman have no possible claim to the settlement obtained for her wrongful death.

The right of the sole beneficiary of this fund having abated, it might appear that the subsequent settlement for the death of Mrs. Dillman consists of orphan dollars. However, the legislature took care of that by amending the "Wrongful Death Act to provide, in substance, that where there is no widow or next of kin “entitled to recovery” then damages recovered under that Act are to be used for medical expenses, funeral expenses, cost of administration, etc., Ch. 70, Ill. Rev. St., Sec. 2, Par. c. The distribution which has been ordered in this estate is in accordance with this statute and is proper.

The orders entered were correct in all respects, and the decree is affirmed.

Decree affirmed.

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


author: JUSTICE CROW

text:
    Irene Compton, Plaintiff-Appellee, v. School Directors of District No. 14, Whiteside County, Illinois, Defendants-Appellants.
    Gen. No. 10,858.
    Second District.
    December 16, 1955.
    Rehearing denied January 10, 1956.
    Released for publication February 10, 1956.

      Besse & Besse, of Sterling, for appellants; Kennard J. Besse, of Sterling, of counsel.
    Karl Tost, of Morrison, for appellee.
   JUSTICE CROW

delivered the opinion of the court.

The defendants appeal from a judgment in favor of the plaintiff in the sum of $2,089.10. The case involves an alleged breach of a teacher’s contract and was heard by the Trial Court without a jury.

The plaintiff, Mrs. Irene Compton, a teacher, on December 29, 1953, filed her complaint, alleging that she entered into a written contract with the defendant school directors on June 13,1953, to begin on September 1,1953 to teach school at the Defendants’ Riverdale School in Whiteside County, for the ensuing school year, at a salary of $333 for eight months and $336 for the ninth month and that she continued in the employment until November 6, 1953 when she was discharged by the defendants without cause.

The contract purported to be subject to the school laws of Illinois and the reasonable and lawful regulations of the School Board, purported to have been executed pursuant to a lawful meeting of the Board of Directors held May 6,1953, and by order of the Board of Directors, and is signed by Louis Schwarz, President, and R. D. Myers, Clerk, Directors, and Mrs. Irene Compton, teacher. The contract recites that she is a legally qualified teacher, and provides, so far as material, that she shall “teach, govern and conduct the common school of said district to the best of (her) ability; —see that the school house, grounds, furniture, apparatus, and such other district property as may come under the immediate care and control of said teacher is not unnecessarily damaged or destroyed; — give playground supervision to all students directly in your (her) charge.”

The answer, in substance, so far as material, denied the allegations of the complaint and alleged certain affirmative defenses to the effect the plaintiff breached the contract by not performing it according to the school laws and the reasonable and lawful regulations of the Directors, and that she was dismissed for incompetency or insubordination or other good and sufficient cause. The reply denied the allegations of the affirmative defenses.

The plaintiff received $765.90 for salary through November 6, pursuant to the contract, and following her dismissal and after January 1, 1954 she received $145 from other sources, — Sterling and Rock Falls Schools, —for substitute teaching. The amount of the judgment is for the unpaid balance on the contract, pursuant to its terms, less, in mitigation of damages, the $145 the plaintiff so received for substitute teaching.

The only issues involved on the appeal are (1) was there a valid contract, — the defendants urging that the “ayes” and “nays” were not recorded in the minutes of the Board at the time of awarding the contract,- — and (2) was the plaintiff lawfully discharged for insubordination, or incompetency, or other good and sufficient cause, — the defendants urging that the contract, if valid, was terminated for sufficient cause. The plaintiff’s position is that the contract is valid, she was discharged without cause, and is entitled to damages for breach of contract.

As appears from the written opinion of the Trial Court, the case was tried below on the theory the plaintiff should prevail unless the defendants sustained their burden of proving she was discharged for reasonable and just canse, — in other words, the first issue on this appeal, as to whether there was a valid contract, was not too seriously or vigorously urged by the defendants in the Trial Court.

It is apparent that the contract was executed pursuant to action taken at a regular or special meeting, regularly held, of the Directors on May 6,1953, and by order of the Board; that the plaintiff was discharged within the contractual period; and that she was ready, willing, and able to continue her employment at the time she was discharged. Besides her testimony and that of certain other witnesses, this last is particularly further evidenced by the fact that she refused to resign and did not obtain other employment for a couple of months or so after the dismissal. The contract was admitted in evidence, without objection, and, in addition to the testimony of all the Directors to this effect, it was further stipulated that it was executed pursuant to a meeting of the Directors, regularly held, at which all Directors were present, and at which all voted aye. We are of the opinion that, under the circumstances, she has proved a valid existing contract.

The statute (Ch. 122, Ill. Rev. Stats., 1953, pars. 6 — 9, 6 — 10 [Jones Ill. Stats. Ann. 123.783, 123.784]) provides, so far as material, that no official business shall be transacted by the Directors except at a regular or a special meeting, that the Clerk shall keep in a punctual, orderly, and reliable manner a record of the official acts of the Board, and that on all questions involving the expenditure of money, the yeas and nays shall be taken and entered on the records of the proceedings of the Board. The presumption of law is that public officers, including the- Clerk of the Board, have done their duty and that their official required acts have been regularly performed, until the contrary appears: Leddy v. Board of Education School Dist. No. 99 (1911) 160 Ill. App. 187. There is no evidence here that the Clerk did not keep a record of the official acts of the Board at the May 6th meeting when the plaintiff’s employment was considered or that he did not take and enter the yeas and nays on the question of her employment on the records of the proceedings of the Board, and we cannot assume he did not perform his official required acts. On the contrary, the presumption of law is that he performed his duties. The burden of going forward with some proof to the contrary, if such was their view and position, was on the defendants.

Furthermore, according to the Clerk, all he says is that if there were no actual minutes of the meeting of May 6, that is a mere ministerial or clerical omission by inadvertence. If that is what occurred, then the Clerk’s record does not correctly state the facts, and such is a matter which is not chargeable to the plaintiff, and does not void an otherwise valid contract properly entered into as a matter of official business in fact transacted at a regularly held meeting. An inaccurate or incomplete Clerk’s record cannot alter or control the fact of the official business actually transacted by the Directors at a regularly held meeting. The duties of the Clerk, as such, are purely clerical and ministerial and in subordination to the official action and direction of the Directors. The failure of the Clerk, if such occurred, to make a minute of the official business and action of the Board, there being no dispute as to what the action was, does not defeat the action of the Board or the plaintiff’s cause of action; the statute does not make the record supposed to be kept by the Clerk the only evidence of the action of the Directors, —and unless the law expressly and imperatively requires all matters to appear of record and makes that record the only evidence thereof, which it does not here, parol proof is admissible to prove things omitted to be stated on the record; while official business can only be transacted at a regular or special meeting of the Directors, as was done here, it does not follow that only the record kept or supposed to be kept by the Clerk can be used as evidence to prove that a contract was, in fact, properly entered into: School Directors v. Kimmel (1889) 31 Ill. App. 537; County of Vermilion v. Knight (1833) 1 Scam. 97; Ryan v. Dunlap et al. (1855) 17 Ill. 40; Bartlett et al. v. Freeport School Dist. Board of Education (1871) 59 Ill. 364; Jackson v. School Directors Dist. No. 85 (1924) 232 Ill. App. 102; Pollard v. School Dist. No. 9 (1895) 65 Ill. App. 104.

In Muehle v. School Dist. No. 38, County of Lake and State of Illinois (1951) 344 111. App. 365, one of the principal cases cited by the defendants on this, the teacher had been orally employed by another teacher-principal, there was no prior interview or official action of any kind by the Board of Directors, and there was no written contract. The case is vastly different on its facts from the case at bar and is not in point. In People v. Chicago & N. W. R. Co. (1947) 396 Ill. 466, the other case cited by the defendants, the adoption by a city council of an appropriation ordinance was held invalid on an objection by a taxpayer to certain city taxes because no yea-nay vote had been taken and recorded as required by statute, the Court saying that nothing short of a record showing a roll call with each individual’s vote will constitute a yea-nay vote as required, — the council minutes there in evidence indicating on the adoption of the ordinance “Voting Aye 5. Nay — -none. Carried.” The present case, of course, does not involve a taxpayer’s objection to some tax, — whether some additional considerations would be involved in a taxpayer’s suit we need not now consider. Further, there is here no dispute but that at the May 6th official meeting each Director specifically and individually voted aye. There is no evidence the Clerk did not keep a proper statutory record thereof or that he did not take and enter the yeas and nays on the record. We can only presume and assume that he performed his official duties, there being no proof to the contrary.

We have read the record, as well as the abstract and briefs, and, although the evidence is to some extent somewhat conflicting, we believe the facts to be found therefrom are generally fairly set forth in the carefully prepared written opinion or statement of reasons for decision of the Trial Court, which opinion or statement is, unfortunately, not abstracted by either the plaintiff or defendants and can be found only by reference to the record itself. The facts, as substantially found therein, in addition to those set forth above, are:

During the time of the plaintiff’s employment two other teachers, Mrs. McMurry and Mrs. Perino, were also engaged in teaching at the school, — all three being new teachers at that particular school, — there being-some 76 pupils, — Mrs. Compton, the plaintiff, having been a qualified teacher since at least 1933 and for considerably longer than the other two teachers,- — and there being no principal at the outset. On September 24, less than a month after her teaching at this school began, the plaintiff was appointed acting principal, the other two teachers evidently not wanting that position and the plaintiff’s greater experience apparently better qualifying her; in fact, at that time, Mrs. McMurry was not a qualified teacher and had not previously taught school anywhere. The other two teachers then promptly informed two of the Directors of their intention to resign if the Directors permitted the plaintiff to continue as acting principal, notwithstanding they were not themselves apparently desirous of or qualified for the position. On September 25, the Directors rescinded the appointment of the plaintiff as acting principal, after one day, and on September 28, they promulgated certain written “Requirements for Teachers.” On October 1, 1953, the Directors employed one Edward Keefe as administrator, with apparently the same duties as a principal. He was not then a qualified teacher, had never been at this school before, and had had no experience as a teacher or principal at any other school, and did not become a qualified teacher until January, 1954.

After he came, October 1, and previous to about November 4, Mr. Keefe, who evidently also taught at the school, had erased the blackboard in the plaintiff’s room whenever he had taught a class there before her; on that day, about November 4, the plaintiff asked him to erase the blackboard and type her examinations, and Mr. Keefe replied that he was not a secretary or a janitor; this statement provoked the plaintiff, and the plaintiff called Mr. Keefe “pig-headed.”

Between 4:00 and 5:00 o’clock p. m., November 5, the next day, the plaintiff, Mr. Keefe, and Directors Schwarz and DeHaan met at the school, at Mr. Keefe’s request. Mr. Keefe had written a letter to the Board in which he quoted Section 36, Art. VI, of the School Code (Ch. 122 Ill. Rev. Stats., 1953, par. 6 — 36 [Jones Ill. Stats. Ann. 123.810]), and he proposed that the plaintiff be dismissed “for insubordination and incompetency.” Mr. Keefe had also prepared a form of resignation to be signed by the plaintiff. The letter and resignation form were submitted to the plaintiff and Mr. Keefe told her that “she was through.” She was surprised, and indicated she thought she was doing a good job of teaching and would do her best to do whatever Mr. Keefe wanted. Mr. Keefe urged her to sign the resignation and he suggested that she would be better able to secure other employment if she resigned, which she declined to do.

A Mrs. Bennett called a meeting of the parents of the pupils for the evening of November 5. Mrs. McMurry and Director Schwarz testified that they attended the meeting and the plaintiff again called Mr. Keefe “pigheaded” and said she’d not take orders from Mr. Keefe, —which the plaintiff categorically denied saying. The plaintiff testified she said there that Mr. Keefe had treated her disrespectfully and that she had been a good teacher. Mr. Keefe was asked to state the reasons for the plaintiff’s dismissal, replied that he was not obligated to state any reasons, did not recall whether he actually gave any reasons, and evidently did not there state any reasons other than, perhaps, at best, the general charges of incompetency and insubordination. On November 6, formal notice of the defendants’ termination of the contract was signed by all the Directors and taken to the plaintiff in her classroom while she was teaching. She did not thereafter teach at that school. At this point it may be observed that there is no evidence of any pupil or parent complaints against, or dissatisfaction with, the plaintiff.

It appears from the evidence that the plaintiff’s appointment as acting principal, which lasted only one day, was rescinded, primarily, if not solely, because the other two teachers had thereupon promptly threatened to resign; however, Director Schwarz says that this rescission action was taken because the plaintiff took too much authority. In elaboration of that thesis, there is evidence that on September 25, when she was acting principal, she told Mrs. McMurry, who had answered a call, not to answer the telephone thereafter and that she, the plaintiff, would answer the phone because it was located just outside the door of the plaintiff’s classroom. At that time Mrs. McMurry’s entire teaching experience totalled a little over 20 days. Mrs. McMurry promptly telephoned Director Schwarz to come to the schoolhouse and settle the “telephone argument.”

Prior to September 25, when there was no principal at all, — a condition of lack of administrative leadership or coordination for which the plaintiff was not responsible, — Mrs. McMurry says the plaintiff once called her down in a loud voice because Mrs. McMurry had called one of the Directors to locate a janitor to stop a leak in a toilet that was flooding one of the rooms, Mrs. Compton suggesting they need not call the Directors over something she could take care of herself. On another occasion, Mrs. McMnrry says a telephone call came for her, Mrs. Compton told the caller Mrs. Mc-Murry could not be called to the phone, a number was left, but the information was never relayed to Mrs. McMurry, — the plaintiff has no recollection of that incident.

After Mr. Keefe came, October 1, Mrs. Compton had about three conversations with him about his being administrator and she probably “blew up” on one or more occasions; he and Mrs. McMurry say the plaintiff would not take orders from him and that she told him he was to stay out of her room, which is denied by the plaintiff; Mr. Keefe’s desk calendar indicates his notations that on October 19, Mrs. Compton refused to take orders (what the “orders” were is not there shown or testified to) and had outbursts of temper, and that on November 2, she denounced the primary teacher.

Mr. Keefe says he had several conversations with the plaintiff concerning his right to supervise her work, — -the matter of his executive authority seemed to weigh heavily with him, — and as to which there was and is no real controversy, but Mr. Keefe was remarkably vague in trying to point out specific instances of the plaintiff’s alleged refusal to follow his proper instructions. The first, and about the only, instance he specifically mentions is the “pig-headed” incident of about November 4, which, if we understand it correctly, is really not an incident of his giving some proper order and the plaintiff wilfully disobeying it, but rather of the plaintiff’s, rightly or wrongly, asking him to do something and his, rightly or wrongly, declining, and the plaintiff then becoming momentarily upset. He says he does not remember any other specific instance of her refusing to take instructions from him.

The defendants say the plaintiff had theretofore been accustomed to teaching in only one room schools, was not accustomed and adjusted to teaching in a multiroom school and getting along with other teachers, and that her incompetency is evident by her inability to be harmonious with the other teachers. The defendants cite no authority to that effect and we think such is not the test of “incompetency” of a teacher, even assuming the plaintiff was the sole cause of any lack of harmony beyond that, such lack of harmony as may have existed at this school cannot, on this record, properly be laid entirely at the plaintiff’s door, but was rather obviously the fault of all concerned, including the plaintiff, Mr. Keefe, the other two teachers, and the Directors.

Neither at their meetings November 5 or November 6, or at any other specific time, did the Directors themselves specificate or endeavor to specificate particular reasons or grounds for Mr. Keefe’s general charges of incompetency and insubordination. The President of the Board, in fact, said they thought she was doing a decent job of teaching, but that she had refused to take orders from Mr. Keefe (specifically what orders the President did not say), and the President said he did not himself make any charges against Mrs. Compton nor did the other Directors. Although no formal specification of particular reasons or grounds, or a hearing thereon, is necessarily required in this case, if legal grounds for dismissal in fact existed, the fact that there was no specification or hearing tends to weaken the views of the defendants as to the supposed existence of particular grounds or reasons and is a circumstance properly to be considered by the trier of the facts in weighing the evidence and determining where the preponderance thereof lies.

Under the statute (Ch. 122 Ill. Rev. Stats. 1953, par. 6 — 36) the defendant Directors had authority to dismiss the plaintiff teacher “for incompetency, cruelty, negligence, immorality, or other sufficient cause.” Under another statute giving a Board of Education even broader authority as to dismissals, it has been held the Board has the power of removal and dismissal for cause only and that the statute was not intended to bestow upon the Board power to arbitrarily or without cause dismiss teachers from their employment: Hartmann v. Board of Education, Westville Tp. High School Dist. No. 220 (1934) 356 Ill. 577. Under the statute applicable here, if the defendant Directors rely upon one or more of the statutory grounds for dismissal they must be prepared to show in defense of a suit of this character that grounds in fact exist, — -the burden of proof is on them on that issue: School Directors v. Ewington (1887) 26 Ill. App. 379. “Incompetency,” or any of the other statutory grounds, are questions of fact to be found or not found by the jury, or the Court sitting without a jury, from all the evidence when the matter gets into a suit, as here; one or more of the grounds must in fact so exist and be so found by the trier of the facts; a plaintiff teacher is not barred simply because the Directors thought her incompetent (if they did): Ewing v. School Directors Dist. No. 3 (1877) 2 Ill. App. 458.

The plaintiff was hired under her contract to “teach, govern and conduct the common school of said district to the best of her ability.” The plaintiff, under the power delegated to her as acting principal for but one day, did not abuse her authority with regard to the telephone matter. It appears, in fact, that the Directors put the identical rule with respect to the telephone, as the plaintiff sought to enforce, into effect by their own written requirements served on her September 28. For the plaintiff to pursue a policy as acting principal on September 25th, as to the telephone, which is the same as the Directors officially adopted September 28th, can hardly be said to be an abuse of authority.

The plaintiff’s refusal on occasion to comply, if she did, with the provision of the Directors’ “Requirements for Teachers” of September 28th, to supervise the playground, — which is apparently another cause of complaint, — could not be considered of sufficient importance to denote insubordination when her teaching contract, as well as the statute (Ch. 122 Ill. Rev. Stats., 1953, par. 23 — 1 [Jones Ill. Stats. Ann. 123.1118]), required the plaintiff, inter alia, “to see that the school house, grounds, furniture, apparatus— is not unnecessarily damaged or destroyed,” which would necessarily require her presence in the building at times, and also when it is not disputed that much of the time after October 1 Mr. Keefe locked the doors of the schoolhouse anyway during the noon hour, provided and evidently expected no playground supervision whatever, and held teacher conferences with the plaintiff and the others in his office at that time, and also when there is evidence the plaintiff did, in fact, reasonably cooperate in the playground supervision, consistent with her other duties under the contract, and consistent with complying with Mr. Keefe’s administrative requirement of noon hour teacher conferences.

The Directors’ Requirements, as to the playground were, so far as material, “Each teacher, as stated in her contract, is responsible for her class on the playground. (1) It is not necessary to spend all recess and noon hour periods on playground, but give it enough attention that your own class is not destructive to any equipment, and that there is no fighting among the children.” Though there is some conflict in the evidence as to the plaintiff’s statement of her intentions in that regard, one of the Directors saying the plaintiff told him she would not supervise outside play, and Mrs. Compton denying she said that and testifying she said she would supervise on the playground when at least one other teacher was in the building, evidently she, in fact, did so supervise each day until Mr. Keefe started his noon hour meetings, which she had to attend. As a matter of fact, Mr. Keefe, who, presumably, knew more of the plaintiff’s day to day activities than the Directors, says he does not recall having any conversation himself with the plaintiff with reference to the playground, which seems strange if the plaintiff had been regularly and wilfully disobeying some requirement of the Directors, and he does not deny that the plaintiff did, in fact, so supervise each day until the noon conferences started.

The so-called minutes of the special meeting of the Board held on November 5, 1953 were actually in Mr. Keefe’s handwriting, and were not kept by the Clerk, who was not even present at the meeting; although no minutes were recorded at the time and no one took notes of the proceedings at the time, Mr. Keefe wrote the minutes sometime in 1954, evidently from his recollection, and evidently after this suit was filed. The minutes are largely a summary of Mr. Keefe’s personal reasons why the plaintiff should have been dismissed, and some of Mr. Keefe’s miscellaneous views pertaining to the law relating to contracts, sufficiency of evidence, and allegiance to the flag. The minutes show that the plaintiff was dismissed on November 5th. On the other hand, Mr. Keefe and Director Schwarz both testified that on November 5th she had not been dismissed and that her discharge was not officially effected until November 6, and the defendants’ brief on this appeal is to the effect the contract was terminated November 6 by Board action. Mr. Keefe’s version, as shown by the minutes he wrote, might superficially indicate that the plaintiff was insubordinate when she ignored the authority of the Board and returned to her classroom and resumed the duties of a teacher on November 6th, but that would not be true at all if, as the other evidence indicates, she was not, in fact, officially discharged until November 6th. Under the circumstances, considering when, by whom, and the circumstances under which they were written, and their contents, no particular importance can be attached to the vague, generalized comments in those minutes, some of which, is obviously inaccurate, much of which is irrelevant, and very little of which indicates any official action by the Directors themselves.

There is no charge or complaint against the plaintiff of “cruelty,” “negligence,” or “immorality” under the statute, and no evidence whatever thereof. The charge of “incompetency” is simply not sustained by the evidence and the defendants have not satisfied the burden of proof on them in that respect, — there is no evidence of her lacking any technical, professional ability for the position for which she was employed, or of her not carrying out any statutory duties imposed on her, such as caring for the property of the District, or of her inability to maintain proper order and discipline among her pupils. Assuming that the charge of “insubordination,” though not expressly stated as such in the statute, comes within “other sufficient cause” under the statute, that also is simply not sustained by the evidence and the defendants have not satisfied the burden of proof on them in that respect. About all that can be said is that there were clashes of personalities and momentary emotional outbursts here. But statutory legal grounds for dismissal of the plaintiff teacher and evidence to support such are notably absent.

In Muehle v. School Dist. No. 38, County of Lake and State of Illinois (1951) 344 Ill. App. 365, the defendants’ principal authority on this, there was evidence the teacher refused to permit small children to go to the toilet except at specified periods, soiled clothing-resulted, she humiliated children in class by questions as to where their money was for contributions, she forced a pupil to write with his right rather than his natural left hand, and she made disparaging remarks to pupils regarding their parents. The facts are so different from the case at bar that it is not helpful here. And even if we adopted the view indicated in that case that under the statute authorizing dismissal for “other sufficient cause” the Board of Directors has a discretion trammelled only by proof of that discretion’s abuse, there was, in the case at bar, an abuse of discretion by the Board.

There is some evidence that only two vacancies existed at schools in the general vicinity, — Bock Falls and near Morrison (the latter not beginning until the second semester), — after the plaintiff was discharged, which she might possibly have taken advantage of in mitigation of damages. She did, in fact, do some substitute work after January 1,1954. The Superintendent of Schools testified that he never informed plaintiff of those vacancies, and he declined to give her a recommendation. She had some doubt whether she was eligible for one of them; she found the vacancy at Bock Falls filled when she inquired, and she made no inquiry at the other place. We think, under the circumstances, she did all that might reasonably be expected by way of mitigation of damages. There is no evidence she was qualified for any other type of work except teaching. There is no evidence any other possible employment was open and available to her except as heretofore stated. The County Superintendent of Schools says no other schools approached him during the school year about Mrs. Compton as a teacher. She was not necessarily required immediately after her discharge, November 6, 1953, to rush out and try to find some other comparable or other position; such is not so easy at that particular time of year in the teaching profession; it is not established that in the first couple of months following her discharge she could have obtained, reasonably, a position for which she was qualified; and she can hardly be reasonably criticized for holding herself available for a time and not risking a possible charge of breach on her part, should the Directors have seen fit to rescind their termination and try to avoid their breach, in view particularly of the Directors’ previous somewhat vacillating procedure as to the plaintiff.

The plaintiff having proved, by the preponderance of the evidence, a contract of employment for a defínate time and stipulated salary, that she was prevented from fulfilling it by act of the defendants, and that she was ready, willing, and able to complete it, she is entitled, prima facie, to recover the entire sum, or unpaid balance thereof, contracted to be paid; although she was obliged to mitigate the damages, and although any sums which she, in fact, earned or which might reasonably have been earned by the exercise of reasonable diligence under her particular circumstances should be deducted from the damages otherwise due, the burden of proof as to mitigation of damages is on the defendants; and they have not shown she, in fact, earned or could by reasonable diligence have earned more than she, in fact, did, which actual earnings have already been properly credited herein in mitigation: School Directors v. Crews (1887) 23 Ill. App. 367; Brown v. Board of Education (1889) 29 Ill. App. 572; McPherson v. Board of Education Waukegan Tp. High School Dist. (1925) 235 Ill. App. 426; Doyle v. School Directors (1889) 36 Ill. App. 653; Fisher v. Massillon Iron & Steel Co. (1918) 209 Ill. App. 616; Wilson v. Board of Education of School Dist. No. 126 Union (1945) 327 Ill. App. 338.

The witnesses for the plaintiff were the plaintiff herself, and, under Section 60 of the Civil Practice Act [Ill. Rev. Stats. 1953, Ch. 110, § 184; Jones Ill. Stats. Ann. 104.060], Mr. Schwarz, Mr. Myers, and Mr. DeHaan, the Directors. The witnesses for the defendants were the plaintiff, under Section 60, all the Directors, Mr. Keefe, Mrs. Mott, treasurer of the district, Mrs. McMurry, and Mr. Young, the County Superintendent of Schools. The report of proceedings, including their testimony and the various exhibits, occupies some 145 pages of the record. The cause having been heard by the Court without a jury the findings of the Trial Court on questions of fact are entitled to the same weight as those of a jury’s verdict, and in reviewing the judgment, so far as the Court’s determination of questions of fact are concerned, we are to be guided by the same principles as would be applied had there been a jury’s verdict. It was, primarily, the Trial Court’s function, as an original matter, to observe the witnesses’ conduct and demeanor while testifying, as well as their testimony itself, to determine their credibility, interests, and motives, if any, so far as appeared, and to weigh the evidence and determine where the preponderance thereof lies. There is competent evidence which, standing alone, together with all reasonable inferences and intendments from it in its aspect most favorable to the plaintiff, fairly tends to prove the essential elements of the plaintiff’s case. There is no complete absence of probative facts to support the conclusion reached. Hence, had there been a jury, a motion by the defendants for a directed verdict or for judgment notwithstanding the verdict could not have been allowed. Weighing the evidence, not to determine as an original matter its preponderance, which was, primarily, the Trial Court’s function, but only to determine whether the judgment is contrary to the manifest weight of the evidence, we do not believe the judgment is contrary to the manifest weight of the evidence. We may not set aside the judgment merely because in some respects the evidence is conflicting. Nor may we assume the function of the Trial Court and substitute our judgment, as an. original matter, for its in passing on the weight and credibility of conflicting testimony. Hence, had there been a jury, a motion by the defendants for a new trial could not have been allowed.

The judgment will, therefore, be affirmed.

Affirmed.

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


text:
    In the Matter of Herschel S. Green, Trustee Under Will of Martha Green, Deceased. Oscar L. Green, Plaintiff-Appellant, v. Herschel S. Green, Defendant-Appellee.
    Term No. 55-0-25.
    Fourth District.
    December 22, 1955.
    Released for publication February 8, 1956.
    August F. Brandt, of Grosse Pointe, Michigan, and Jackson R. Hutton, of Danville, for appellant.
    G. W. Horsley, and L. H. Lenz, both of Springfield, for appellee.
   JUSTICE SCHEINEMAN

delivered the opinion of the court.

This is an appeal from an interlocutory order of the circuit court restraining and enjoining Oscar L. Green and others from proceeding with certain litigation in the United States District Court for the Eastern District of Illinois.

The order denied a motion to dismiss the cause, added additional parties plaintiff, issued an injunction restraining the further prosecution of a case involving the same parties in the United States District Court, and restraining the plaintiff from interfering in any manner with Herschel S. Green in the administration of the Martha Green and James Green Trusts. The order further indicated that the purpose of the court was subsequently to hear and determine the questions involved in the original cause. A motion to vacate the order and dissolve the injunction was denied.

These orders were not in an original action for injunction. They were entered in a suit brought 6 years before by Oscar L. Green as sole plaintiff, against Herschel S. Green as sole defendant. Therefore, the injunction was procured by a party designated as defendant, and against Oscar L. Green and others designated as plaintiffs. This designation will be followed in this opinion.

The “others” above referred to as additional plaintiffs, did not voluntarily join in this suit as plaintiffs or otherwise. They are residents of Texas. At the request of defendant the circuit court ordered that they were joined as additional “parties plaintiff.” This was part of the same order which allowed the injunction, prior to which they had not been in the case for any purpose whatsoever, although they were trust beneficiaries.

The original suit by Oscar had sought an accounting from Herschel as trustee of the Martha Green Trust. Thereafter, Herschel filed several reports and accounts, which appeared to indicate that he had intermingled the affairs of that trust with another, called the James A. Green Trust. In 1951, Oscar filed a motion to dismiss this suit, when there was no answer or counterclaim on file, and a few days thereafter, he and the other beneficiaries filed the suit in the federal court which is now enjoined. The motion to dismiss was not acted upon.

In the federal suit, plaintiffs sought a decision as to their rights in the James Trust, an accounting therein, the removal of the trustee, the appointment of a new trustee, and a personal judgment against Herschel in the Martha Green Trust.

The defendant contested the action on several grounds, including the claim of prior jurisdiction in the state court, that there was no diversity of citizenship, and also filed a counterclaim against Oscar.

Several hearings were held and the United States District Court recognized the principle of comity that a state or federal court will not permit a proceeding in rem when the other court has acquired prior jurisdiction thereof. The court held that the suit in state court for accounting was in personam, not in rem; that the James Green Trust was not involved therein at all; that, in the intermingling of funds, the trustee could not, by his own tortious act, bring the res into that suit; that the state court could not decide a proceeding to remove a trustee when not all the beneficiaries were parties.

During the federal proceedings the defendant filed his written resignation as trustee in both trusts and consented to the appointment of a new trustee. Some days later the federal court appointed a new trustee with consent of all parties. The defendant filed additional motions in the federal court, including an attack upon diversity of citizenship of the parties. The rulings were adverse, and he then appealed to the United States Court of Appeals, which reviewed all of the proceedings at length. The decision, reported in 218 F.2d 130, sustained the decree of the district court in all respects. Defendant petitioned the United States Supreme Court for Writ of Certiorari, which was denied. Green v. Green, 349 U. S. 917. Rehearing denied May 31, 1955. There followed the proceedings now on review in this court. During the pendency of the federal appeals, defendant had filed amended and supplemental reports in the state court as “trustee” more than two years after his resignation.

The briefs on file in this court present the same questions litigated in the federal courts (except the question of diversity of citizenship, there being no assertion that such question can be reviewed in a state court). This court does not find it necessary to consider all of the involved procedure and all of the questions presented. In particular, this court does not now consider the question whether the defendant could have enjoined the federal proceedings by presenting the question in the state court when the federal case was first filed. That was the action taken in Princess Lida v. Thompson, 305 U. S. 456, 59 S. Ct. 275, relied upon by defendant. The case is not in point.

The defendant did not take such action. Instead he proceeded to litigate the question of prior jurisdiction in the federal courts, together with other points. To secure an adjudication of his rights, he has availed himself of the federal procedure up to the highest court in the land. He cannot now start over in the state court. This court has previously said:

“Having elected to litigate the question in the federal court, we hold that (the litigant) is just as much bound by that decision as (he) would have been by similar suit in the state court with a final decision of the Supreme Court of this State. (He) is not permitted to litigate a question in federal court, and after adverse decision, start over again on the same point in the state courts. 50 CJS, Judgments, Sec. 901 (b) ; Leviton v. Bd. of Education, 385 Ill. 599; Reilley v. Agricultural Ins. Co., 311 Ill. App. 562.” In re Estate of Luer, 348 Ill. App. 324, 335.

The defendant has fully litigated the point and obtained a decision that the United States District Court has jurisdiction in rem of the two Creen Trusts. Defendant has resigned as trustee in both and his successor has been appointed. These matters are res judicata and conclusive. If the case of Princess Lida v. Thompson, supra, and other decisions relied upon by defendant, were applicable, it was competent for the federal courts to so decide. Defendant failed to procure such a decision and he is concluded thereby. The circuit court erred in failing to recognize these principles, in refusing to dismiss these proceedings, and in issuing the injunction. The decree of the circuit court is réversed in all respects, and writ of injunction quashed.

Decree reversed, and writ quashed.

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