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in general terms, and not in such form as to ber term, 1875, namely, on the 6th day of be available as a ground for relief. It was December, 1875, in favor of the Merchants' not until the sufficiency of that portion of her National Bank of Chicago, and against Charles bill had been challenged by demurrer, and W. Colehour and William H. Colehour, for after the weakness of her bill had been devel- $4,000 damages. oped on her motion for an allowance of ali The sole question in the case is whether mony pendente lite, that her bill was so the superior court had such jurisdiction of amended as to charge cruelty in such form as the person of William H. Colehour as authorto constitute a ground for a divorce. These ized it to render that judgment at that time; circumstances furnish ground for a legitimate for both Francis R. Butters and the appelinference that the charge of cruelty is a mere lant, baving been attorneys for the bank in afterthought, and that it was brought for- that suit, occupy no different position, as reward only after it had become apparent that spects that question, than that occupied by the bill could not otherwise be maintained. the bank. Bank v. Flagg, 31 Ill. 290. WillWe are of the opinion that the decree is in iam H. Colehour presented his petition to the accordance with the evidence, and that no er- superior court of Cook county on the 16th ror was committed by the appellate court in day of April, 1884, wherein he alleged, among affirming it. The judgment of the appellate other things, as follows: "That he (said pecourt will be affirmed.

titioner) is one of the defendants in the

above-entitled cause, in which cause judg(130 Ill. 217)

ment was entered against both defendants CULVER V. PHELPS.1

on the 6th day of December, A. D. 1875; that (Supreme Court of Illinois. Nov. 26, 1889.) part of the record in said cause had been lost EXECUTION-SALE-SUMMONS-RESTORATION OF

or destroyed, that is to say, the summons in RECORD.

said cause, served on your petitioner and on 1. Where a judgment creditor buys the judg- Charles W. Colehour, his co-defendant, toment debtor's land at execution sale, and after-gether with the return of the sheriff of Cook wards conveys the same to the attorney who brought the suit, the latter obtains no better title county thereon indorsed; and the indorsethan that of the judgment creditor.

ments of filing thereof have been lost or de2. A summons issued October 6, 1875, return- stroyed, upon which summons and return of able on the first Monday of October “next,” and served October 16, 1875, gives no jurisdiction to service, the order entering the default of the render judgment by defaul: at a term held in No-defendants, and the judgment in the said vember, 1875.

cause were based; that a certified copy of said 3. A sale of land under execution issued upon summons and return, and the indorsements such a judgment creates a cloud upon title which of filing thereof, cannot be obtained by your will be removed by a court of equity.

4. Where a summons which has been lost after petitioner, nor any certified copy of any part service is restored upon petition of the defendant, of said summons, return, or indorsement. in which he alleges that the summons sought to Your petitioner further states that * * * the be restored is the only one that was served upon him, which allegation is denied by the plaintiff, following is a true copy of said summons, and the decision of the court restoring the summons the return of the sheriff thereon indorsed: is, in another suit, conclusive of the fact that the Summons. Superior court, state of Illinois, summons as restored was the only one that was served.

Cook county--SS. The people of the state

of Illinois to the sheriff of said county, greetAppeal from superior court of Cook county: ing: We again command you that you sum

Culver & Madden, for appellant. Edward mon Charles W. Colehour and William H. Roby, for appellee.

Colehour, if they shall be found in your counSCHOLFIELD, J. This was a bill in equity, superior court of Cook county on the first day

ty, personally to be and appear before the bý appellee against appellant, in the superior of the term thereof, to be holden at the courtcourt of Cook county, to set aside certain house in the city of Chicago, in said Cook deeds as clouds upon appellee's title. The deeds sought to be set aside are a sheriff's county, on the first Monday of October next, deeds sought to be set aside are a sheriff's to answer unto the Merchants’ National Bank Chicago, a deed of the Merchants’ National of Chicago, in a plea of trespass on the case, Bank of Chicago to Francis R. Butters, and tiff, as it is said, in the sum of four thousand

upon premises, to the damage of said plain: a deed of Francis R. Butters to appellant, Mr.

dollars. Irving Culver; each purporting to convey writ, with an indorsement thereon in what

And have you then and there this title to lót 10, in block 10, in “The IronWorkers' Addition to South Chicago.” Ap

manner you shall have executed the same. pellee claims title to the lot under a deed from [Seal of the Superior Court.] Witness AlWilliam H. Colehour, who is conceded to the seal thereof, at Chicago aforesaid, this

exander F. Stevenson, clerk of said court, and have been the original owner of the lot. The the seal thereof, at Chicago aforesaid, this sheriff's deed to the Merchants' National Bank of Chicago was executed by virtue of VENSON, Clerk.' Return of the officer, as a sheriff's sale, under an execution issued this writ on the within-named defendants,

shown on the bank of the summons: Served upon a purported judgment of the superior court of Cook county, rendered at its Novem- by reading the same to each of them, the 16th

day of October, 1875. FRANCIS AGNEW, i Reported by Louis Boisot, Jr., of the Chicago

Sheriff. By T. H. SMITH, Deputy.' Your bar.

petitioner further states that at the time your

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petitioner made such copies said summons 105 Ill. 336. It has been seen that the de-
was among the papers and files of said cause, cree supra restores the summons which was
in the custody of the clerk of this court, and served upon the defendants in the case before
your petitioner made a copy of said summons judgment was rendered, and not merely a
and return in the office of the clerk of this summons that was served in that case. The
court as aforesaid; and that said summons issue was made by the answer that the sum-
so copied, and of which the above and fore-mons set out in the petition was not the sum-
going is a true copy, is the only summons in mons served upon the defendants pursuant
said cause ever served on this petitioner.” to which judgment was rendered, but the
Appellant and the bank were made defend-court found against the answer; and so we
ants to this petition. Its prayer was that must now accept it as a fact that the only
the court make an order “reciting what was summons served upon the defendants before
the substance and effect of said summons, judgment was rendered was this summons.
and return of service and filing of the same, The case is therefore within the rule laid
according to the provisions of the statute in down in Osgood v. Blackmore, 59 Ill. 265,
such case made and provided. Rev. St. c. and Burnett v. Wolf, 70 Ill. 76. The record
116, § 2. The bank and appellant separately contradicts the recitals in the judgment “that
answered the petition, putting in issue its due personal service of process of summons
material allegations. Appellant, in his an- issued in said cause has been had on the de-
swer, admitted that “upon examination of fendants for more than ten days before this
the papers in said cause made by him, that term,” (the November term, 1875,) and shows
the writ of summons issued in said cause that that the only summons served in the case was
was served on said petitioners is not to be one issued on the 6th of October, 1875, re-
found therein.” And he alleged, among other turnable to the twelfth term of the court
things: “That there was more than one sum- thereafter to be held, namely, to the October
mons issued in said cause; and that, as he is term, 1876, of the court. The summons, be-
advised and believes, the said petition does ing returnable at a term other than the first
not show, nor give a copy of, the summons term, and to be held more than three months
duly issued in said cause, upon which serv- after its date, was void. Section 1, c. 110,
ice was bad upon said petitioner, and judg- Rev. St. 1874; Hildreth v. Hough, 20 I11. 331.
ment rendered against him. And upon like And in no view can it be held to confer juris-
information and belief he denies that the diction of the persons to render judgment at
writing set out in said petition, purporting the November term, 1875. We think the
to be a copy of the summons in said cause court below, therefore, properly decreed that
served on said petitioner, is a true and cor- the deeds be set aside as clouds upon com-
rect copy of the summons served on him." plainant's title. The decree is affirmed.
Replications were filed to the answers, and
the cause was heard, and decree rendered

(130 Ill. 238) therein, at the June term, 1884, of the court.

CULVER V. CITY OF STREATOR.1 The court found and decreed in accordance (Supreme Court of Illinois. Nov. 26, 1889.) with the prayer of the petition,and restored the MUNICIPAL CORPORATIONS—TORTS OF AGENTS. summons, and service thereof; upon which A municipal ordinance forbidding dogs to judgment was rendered literally as before run at large being a police regulation, the municiherein set out as being recited in the peti- pality is not responsible for the negligent acts of

one employed by it to enforce such ordinance. tion. The case was then taken, by the appeal of the present appellant, to the appellate court Error to appellate court, second district. of the first district; and that court by its

Action by Carrie Culver against the city of judgment affirmed the decree of the superior Streator for personal injuries caused by the court; and from the last-named judgment the negligent acts of a person employed by desame party brought the case by appeal to this fendant to kill unmuzzled dogs. The circuit court, and the judgment of the appellate court court sustained a demurrer to the declarawas here atfirmed, pursuant to opinion filed tion, and the appellate court attirmed the on the 25th of January, 1886, and that judg-judgment. Plaintiff brings error. ment has never been set aside. Culver v.

Joel T. Buckley and McDougall & ChapColehour, 115 Ill. 558, 5.N. E. Rep. 89.

man, for plaintiff in error. Walter Reeves It is not pertinent to the question now un- and Wm. H. Boys, for defendant in error. der consideration to determine what power is vested in the superior court by chapter 116,

BAILEY, J. We are of the opinion that the Rev. St. 1874, in relation to burnt records, several counts of the amended declaration, nor what evidence is admissible upon the though differing somewhat in the character hearing of a petition filed pursuant to the pro- tion of the same principles. The fourth

of their averments, all call for the applicavisions of that chapter. It is only important to know what was decreed in the case supra, shows that the injury complained of was

count, which is fullest in its allegations, for that decree is res judicata in the present case, no matter whether it was authorized caused by the negligent act of a party emby the law and the evidence or not. Bradish ployed by the city of Streator to enforce a v. Grant, 119 Ill. 606, 9 N. E. Rep. 332; At-municipal ordinance forbidding the running torney General v. Railroad Co., 112 Ill. 538;

1 Reported by Louis Boisot, Jr., of the Chicago Hanna v. Read, 102 I11. 596; Tilley v. Bridges,' bar.

at large of dogs in said city without being | ville, 13 Bush. 221; Cook v. City of Macon, muzzled, and providing that all dogs run- 54 Ga. 468; Harris v. City of Atlanta, 62 Ga. ning at large contrary to said ordinance 290;) nor for their unlawful acts of violence, should be destroyed. This was clearly an whereby, in the exercise of their duty in supordinance passed by the city in the exercise pressing an unlawful assemblage, ar injury of its police powers, and the injury was is done to the property of an individual, caused by the party employed to enforce such (Stewart v. New Orleans, 9 La. Ann. 461; police regulations. The third count alleges Dargan v. Mayor, etc., of Mobile, 31 Ala. 469.) that the injury was caused by the negligent Upon the same principle, it has been held that and careless acts of the servants of the city a city having power to establish a fire dewhile destroying dogs running at large con-partment, to appoint and remove its officers, trary to a city ordinance; and the first and and to make regulations in respect to their second counts allege, in substance, that the government and the management of fires, is injury was caused by the negligent and care- not liable for the negligence of the firemen less acts of servants hired and employed by appointed and paid by it, who, when engaged the city to shoot and kill dogs at large in the in the line of their duty, upon an alarm of city, and which had not been by it duly fire, run over the plaintiff on their way to licensed. The matter of regulating and re- the fire, (Hafford v. New Bedford, 16 Gray, straining the running at large of dogs by a 297; Wilcox v. City of Chicago, 107 Ill. 334;) municipal corporation manifestly pertains to nor for injury to the plaintiff caused by the the police power. That power may be de- bursting of a hose of one of the engines of fi ned, in general terms, as comprehending the city, through the negligence of a member the making and enforcement of all such laws, of the fire department, (Fisher v. City of Bosordinances, and regulations as pertain to the ton, 104 Mass. 87;) nor for negligence whereby comfort, safety, health, convenience, good or sparks from the fire-engine of the city caused der, and welfare of the public, and all per- the plaintiff's property to be burned, (Hayes sons otficially charged with the execution and v. City of Oshkosh, 33 Wis. 314.) In like enforcement of such police ordinances and manner it is held that where a city, under regulations are, quoad hoc, police officers. authority of law, establishes a hospital, it is The pleader, in drafting the declaration, seems not liable to persons injured by the misconto have endeavored to obviate the conclusions duct of its agents and employes therein. to be drawn from the character of the duties City of Richmond v. Long's Adn'rs, 17 Grat. which the officer in question was performing 375. See, also, 2 Dill. Mun. Corp. 88 973at the time the plaintiff was injured, by des- 975, and authorities cited in notes. ignating and describing him as a “servant” The ground upon which the foregoing or “employe” of the city, and alleging that cases, and many others of like nature, are he was hired and employed by the city to admitted as exceptions to the general rule of perform said duties. Merely denominating corporate liability, is that in those matters him a “servant” or “employe” does not make the city acts only as the agent of the state, him such in a sense calling for an application in the discharge of duties imposed by law for of the maxim respondeat superior. Whether the promotion and preservation of the pubhe was a servant or employe in that sense de- lic and general welfare, as contradistinguished pends mainly upon whether he was employed from mere corporate acts, having relation to to perform acts which the corporation could the management of its corporate or private do in its private or corporale character, or concerns, and from which it derives some acts which the corporation was empowered special or immediate advantage or emoluto do in its public capacity as a governing ment in its corporate or private character. agency, and in discharge of duties imposed The police regulations of a city are not made for the public or general welfare. Acts per- or enforced in the interest of the city in its formed in the exercise of the police power corporate capacity, but in the interest of the plainly belong to the latter class. Police of public. A city, therefore, is not liable for ficers appointed by the city are not its agents the acts of its officers in attempting to enor servants so as to render it responsible for force sạch regulations. Calwell v. Boone, their unlawful or negligent acts in the dis- 51 Iowa, 687, 2 N. W. Rep. 614; Prather v. charge of their duties. Accordingly it has Lexington, 13 B. Mon. 559; Elliott v. Philbeen held that a city is not liable for an as-adelphia, 75 Pa. St. 347; Board v. Schroeder, sault and battery committed by its police of- supra. The injuries complained of in the ficers, though done in an attempt to enforce declaration having been caused by the negan ordinance of the city, (Buttrick v. City of ligence of an officer or employe of the city Lowell, 1 Allen, 172;) nor for illegal and op- while attempting to enforce a police regulapressive acts of officers committed in the ad- tion, the maxiin respondeat superior does ministration of an ordinance, (Board v. not apply, and the demurrer to the declaraSchroeder, 58 Ill. 353;) nor for an arrest tion, therefore, was properly sustained. The made by them which is illegal for want of a judgment of the appellate court will be afwarrant, (Pollock's Adu'r v. City of Louis-firmed.

(131 Ill. 61)

CHICAGO, B. & Q. R. Co. v. MEHLSACK. car from the platform where he stood; and (Supreme Court of Illinois. Nov. 26, 1889.)

that by means of said default, and the careCARRIERS-INJURIES TO PASSENGER.

less management of said train, an obstruction In an action against a railroad company, as on the railroad struck and carried away a a common carrier, for personal injuries received part of said platform, whereby the plaintiff by plaintiff while riding on defendant's train with was thrown to the ground, and injured. The out a ticket, where the evidence as to whether fifth count alleges that the defendant was a plaintiff was a passenger or a trespasser is conficting, it is reversible error to instruct the jury common carrier of passengers, and that it that if they believe from the evidence that the was its duty to remove from its track and plaintiff, without negligence on his part, was in- right of way any and all obstructions which declaration, they should find the defendant guilty; might or could endanger the safety of perthus taking from the jury the question whether sons lawfully riding upon its trains, yet the plaintiff was a passenger.

defendant negligently allowed certain ob

structions to accumulate upon its right of Appeal from appellate court, first district. way, and in close proximity to its track,

Geo. Willard, for appellant. Joseph S. whereby said train came into collision with Kennard, Jr., (Brandt & Hoffmann, of coun- said obstructions, and thereby the part of the sel,) for appellee.

train upon which the plaintiff was standing BAILEY, J. This was an action on the the ground and injured. *A trial was had on

was broken off, and the plaintiff thrown to case, brought by Frank Mehlsack against the the plea of not guilty, and at said trial the Chicago, Burlington & Quincy Railroad Company, to recover damages for a personal in- jury found the defendant guilty, and assessed jury. The injury complained of was sus- that sum and costs the plaintiff had judg.

the plaintiff's damages at $6,000; and for tained by the plaintiff while riding on the ment. On appeal to the appellate court said platform steps of one of the cars belonging to judgment was affirmed, and the case is one of the defendant's passenger trains, which brought here on appeal from the judgment at the time was running from Meagher street

of the appellate court. to the Union passenger depot, in the city of

The main controversy at the trial was as Chicago. Said train was composed of a loco- to whether the plaintiff, at the time he was motive engine and eight cars, to-wit, a mail injured, was a passenger on said train, or a car, which was next to the engine, three bag- mere trespasser, seeking to obtain a ride gage cars, which came next, and four passen- without the knowledge or consent of the deger coaches, in the rear. Said train was a fendant, or its employes in charge of the through passenger train from the west, the train, and without paying the customary plaintiff having got aboard as the train

fare; and upon this question the evidence stopped at Meagher street. The evidence tends to show that the place on the train to the jury, at the instance of the plaintiff,

was conflicting. The court thereupon gave where he was riding at the time he was in the following instruction: “If the jury bejured was on the steps of the front platform lieve from the evidence that the plaintiff, of the forward baggage car; and that said while in the exercise of ordinary care, and steps, by coming in contact with some ob- without negligence on his part, was injured struction on the ground, near the track, were by negligence of the defendant, as alleged in broken off; and that the plaintiff was thereby the declaration, then the jury should find the thrown to the ground, and injured in such defendant guilty, and assess the plaintiff's manner as to necessitate the amputation of one of his legs about six inches below the damages.” This instruction is clearly erroneknee. The evidence shows that he had pur- hypothesis that the plaintiff, at the time of

ous, for the reason that it wholly omits the chased no ticket, and that he paid no fare, al- his injury, was a passenger on the defendthough he claims to have had in his posses-ant's train. The plaintiff, in bis declaration, sion sufficient money to pay the customary fare, if he had been called upon to do so, and proceeds entirely upon the theory that the that he was ready and willing to make such been established between the defendant and

legal relation of carrier and passenger had payment. The declaration consists of five him. In three counts of the declaration that counts. The first, second, and fourth counts relation is expressly averred, and the negliallege, in terms, that the plaintiff became a passenger upon said train, and that the defend-gence charged is a failure to perform the du

ties, and exercise the diligence, which that ant negligently failed to carry him safely, relation imposed. In each of the other counts whereby he was injured. The third count the defendant is declared against as a comalleges that the defendant was a common carrier of passengers, and that it was its duty to those counts there is no express averment

mon carrier of passengers; and, although in turnish a sufficient number of cars for such that the plaintiff had become a passenger, persons as might lawfully desire to enter its trains, and to carry said persons therein with yet the duties which are alleged to have been safety, but that it did not furnish a sufficient neglected are those which a carrier owes to safety, but that it did not furnish a sufficient its passengers, and which it does not owe to number of cars, so that the plaintiff was unable to obtain a seat therein, or to enter the a mere trespasser. A common carrier of pas

sengers is not under the same obligation as 1 Reported by Louis Boisot, Jr., of the Chicago to care and diligence in guarding against in

juries to strangers, and especially to trespass.

bar.

ers, that it is in guarding against injuries to Osborne Bros. & Burgett, for appellant. passengers. His duty to the latter involves Osborn & Lynde, for appellee. the use of the utmost care and diligence CRAIG, J. On the 1st day of July, 1876, which can be bestowed by human skill and Kirk B. Newell, being indebted to H. G. Abforesight, and is enforced by the highest con-bott, the appellant, executed his promissory siderations of public policy. But as to the note as follows: "Chicago, Ills., July 1, former his duty rests merely upon grounds 1876. One day after date I promise to pay of general humanity and respect for the rights to the order of H. G. Abbott two thousand of others, and requires him to so perform the dollars, with interest at the rate of ten per transportation service as not wantonly or cent. per annum, at First National Bank of carelessly to be an aggressor towards third Chicago. Value received. [Signed] KIRK persons, whether such persons are on or off B. NEWELL.” Indorsed on the back of the the vehicle. Schouler, Bailm. 8 620. In Rail- note was the following guaranty: “For road Co. v. Beggs, 85 Ill. 80, we held that a value received, I hereby guaranty the payperson fraudulently riding on a free pass, ment of the within note at maturity, or at issued to another, and not transferable, was any time thereafter, with interest at ten per not a passenger, and that the railroad com- cent. per annum until paid, and agree to pay pany would only be held liable for gross neg- all costs and expenses paid or incurred in ligence which would amount to willful in- collecting the same, including attorney's jury. The above-mentioned instruction re- fees. [Signed] J.B. BROWN.” This action quired a verdict of guilty upon mere proof was brought by H. G. Abbott against Brown that the injury complained of was caused by to recover certain costs and attorney's fees the negligence alleged in the declaration, ir- which he paid out and expended in the colrespective of whether the plaintiff was a pas- lection of the amount named in the note in senger or a mere trespasser, although the an action against Brown on his guaranty. negligence alleged was such as would render The costs and attorney's fees which the a carrier liable only in case of injury to a pas- plaintiff sought to recover in the action were senger. This, in effect, took from the jury not expended in attempting to collect the all consideration of the questions presented note which was executed by Kirk B. Newell. by the evidence, which tended to show that No suit was ever brought on the note against the plaintiff, at the time of his injury, was the maker, nor was any evidence offered to attempting to obtain a free ride without the prove that any costs or expenses were ever consent of the defendant, or its agents. If incurred in an attempt to collect the note. such was the fact, the defendant can be held But on the trial of the cause Abbott, who is liable only for the consequences of gross neg- appellant here, put in evidence showing that ligence amounting to willful or wanton mis- on July 3, 1882, he brought an action in asconduct; and such is not the negligence sumpsit against Brown “on the guaranty charged in the declaration.

signed by him, indorsed on the note, whereA number of other instructions were given; by he guarantied payment of the note,” in but none of them, in our opinion, can have which he recovered judgment for the amount the effect of curing the error above pointed due on the note, $3,338.34; that an appeal out. For said error the judgment of the ap- was taken by Brown to the appellate court, pellate and superior courts must be reversed, and to the supreme court from the judgment, and the cause will be remanded to the latter of the appellate court affirming the judgment court for a new trial.

of the circuit court, and that upon the af

firmance thereof by the supreme court Brown 131 Ill. 108)

paid appellant the amount of the judgment; ABBOTT 0. BROWN.1

that the firm of which witness was a mem

ber was employed as attorneys to conduct (Supreme Court of Illinois. Nov. 26, 1889.)

this action, and rendered services therein of GUARANTY-RES ADJUDICATA.

the value of $1,500, and they had been paid 1. One who guaranties payment of a note, and that sum by appellant for said services; and agrees to pay “all costs and expenses paid or in- also, in the prosecution of this action, apcurred in collecting the same, including attorney's fees,” is not liable for expenses and attorney's pellant expended for printing and other necfees incurred by the payee in suing the guarantor essary expenses the sum of $26. On this himself upon the guaranty:

evidence the circuit court held, as a matter 2. After judgment has been recovered on such of law, “that the guaranty on which this guaranty, the payee cannot recover from the guarantor, in a second suit, attorney's fees for services suit was brought is not an agreement to pay against the maker of the note, rendered before the the costs or expenses or attorney's fees, paid first suit against the guarantor was brought. or incurred in a suit against Brown upon Appeal from appellate court, first district.

said guaranty,” and rendered judgment for

the defendant. Assumpsit by Henry G. Abbott against John B. Brown. The circuit court rendered

There is no ambiguity in the contract of judgment for defendant, and the appellate of the contract are plain and easily under

guaranty executed by Brown. The terms court affirmed the judgment. Plaintiff ap- stood. By the contract Brown agreed that peals.

the note should be paid with interest at ten Reported by Louis Boisot, Jr., of the Chicago per cent., and he also agreed to pay all costs

and expenses incurred or paid, including at

bar.

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