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(144 N.E.) (312 Ill. 371)

administratrix of John C. Patterson, being SHEDD et al. v, PATTERSON. (No. 15805) substituted defendant pending the appeal, (Supreme Court of Illinois. April 14, 1924. and the executors appeal on certificate of im. Rehearing Denied June 12, 1924.)

portance. Judgment of Appellate Court af

firmed: 1. Common law Oma 7-English statute modify. ing previous common law held to become part olds, both of Chicago, for appellants.

Harry S. Mecartney and Edmund J. Reynof common law of state.

F. J. Karasek and W. D. Elmer, both of Statute of 4 Edward III, c. 7, modifying the English common-law rule as to abatement

Chicago, for appellee. of actions ex delicto on the death of either party so as to give an action in favor of a CARTWRIGHT, J. On August 1, 1919, personal representative for injury to personal Edward A. Shedd brought an action of tresproperty of deceased, became a part of the pass on the case in the circuit court of Cook common law of Illinois.

county against John C. Patterson to recover 2. Landlord and tenant 70 Long-time damages for malicious prosecution of a series leasehold is chattel real.

of suits, five in equity and four at law, disleasehold estate for a long term of years puting the title of Shedd to a leasehold esis chattel real.

tate in valuable property in Chicago on vari3. Property ml-"Property" defined.

ous grounds and claiming that the leasehold Property in a legal sense consists in the estate had been forfeited, all of which suits domination which is rightfully and lawfully terminated in favor of Shedd. A judgment obtained over a material thing with the right in favor of Patterson in the action for maliof use, enjoyment, and disposition, and in the cious prosecution, aflirmed by the Appellate full sense it denotes a right in point of user, Court for the First District, was reversed, unrestricted in point of disposition and un- and the cause was remanded to the circuit limited in point of duration over a determi-court for a new trial. Shedd v. Patterson, nate thing, and it may apply to a right indefi- 302 III. 355, 134 N. E. 705. Before the cause nite in point of user, but limited in duration, as a life interest in realty.

was redocketed in the circuit court Shedd [Ed. Note. For other definitions, see Words died. A motion of Charles Cossitt Shedd and and Phrases, First and Second Series, Prop- Christiana M. Shedd, executors of the last erty.)

will and testament of Edward A. Shedd, de4. Statutes em 188_Words given ordinary and tinued, was denied, and the motion of the de

ceased, that the action be revived and conaccepted meaning in popular use.

In construing statutes, words are given fendant, Patterson, that the action abate on their ordinary and accepted meaning in popu- account of the death of the plaintiff, was suslar use.

tained. The action was abated by order of

the court, and an appeal to the Appellato 5. Abatement and revival Ow55(1)-Injury to Court for the First District was allowed.

property need not be direct and physical for Pending the appeal Patterson died, and Alcause of action to survive.

vina F. Patterson, the administratrix of his Under Administration Act, $ 123, relating to the survival of rights of 'action, 'it is not estate, was substituted. The appeal was pernecessary that an injury to property be a di- fected, and the Appellate Court decided that rect physical injury for the right of action for the action abated on the death of the plainresulting damages to survive.

tiff, affirmed the judgment, and allowed a 6. Abatement and revival Sm55(1)-Action for certificate of importance and an appeal to

this court. malicious prosecution of suits disputing title to leaseholds held not to survive as action

[1] An action for malicious prosecution is for injury to real property.

in tort to recover damages for the insti. An action for damages for malicious prog- tution, maliciously and without probable ecution of a series of nine suits disputing the cause, of a suit which has terminated in fatitle of plaintiff to a long-time leasehold held vor of the defendant therein. At common not an action to recover damages for injury law such action, like that for all other torts, to real property which survived plaintiff's de- as a general rule abated by the death of the

sole plaintiff or defendant before trial or ver

dict, and, if the cause of action was one that Appeal from Second Branch Appellate would survive, the plaintiff or his personal Court, First District, on Appeal from Cir representative was required to bring a new cuit Court, Cook County; Donald L. Morrill, action against the defendant or his personal Judge.

representative. Causes of action for tresAction by Edward A. Shedd against John pass to person or property did not survive in C. Patterson. Denial of motion of Charles favor of or against personal representatives Cossitt Shedd and Christiana M. Shedd, ex or heirs. The general rule of the common ecutors of Edward A. Shedd, that the action law that actions ex delicto abated on the be revived and continued was affirmed by death of either party was moditied by the the Appellate Court, Alvina F. Patterson, Statute of 4 Edward III, c. 7, so as to give

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cease,

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an action in favor of a personal representa- , 505, and personal property was held in the tive for injury to personal property. That popular meaning to include only articles or statute became a part of the common law things movable. The same rule applies to of this state, which changed the common law real property, and the statute includes only only so far as related to injuries to personal such property in the common understanding. property. Reed v. Peoria & Oquawka Rail. An injury to property in that sense need not road Co., 18 Ill. 403. The classes of action be a direct physical injury to the subject of which survive have been further enlarged by property. An action may be maintained for section 123 of the Administration Act (Smith- an injury to property by erecting and mainHurd Rev. St. 1923, c. 3, & 125) as follows: taining anything amounting to a nuisance,

"In addition to the actions which survive by by which real estate is damaged or which the common law, the following shall also sur. injures it as a habitation or for other uses. vive: Actions of replevin, actions to recover

That was the doctrine of Penn Mutual Life
damages for an injury to the person (except Ins. Co. v. Heiss, supra, where it was con-
slander and libel), actions to recover damages sidered that the right of action of a lot own-
for an injury to real or personal property, or er for damages caused by the location and
for the detention or conversion of personal operation of a railroad in the street in front
property, and actions against officers for mis- of his lot survived to his personal representa-
feasance, malfeasance or nonfeasance of them- tive as an injury to his property. In all such
selves or their deputies, and all actions for
fraud or deceit."

cases, however, the damages, although in-
direct and consequential, are damages to the

real estate. And by our statute in relation to abate

[6] The statutes providing for the survival ment, if the action is one that survives, the of actions vary considerably, and some may same action is continued and may be pros- be broad enough to embrace an injury to a ecuted by or against a personal representa- right or interest growing out of real estate; tive.

but our statute is limited, in terms, to ac[2, 3] The action for malicious prosecution tions to recover damages for an injury to of the civil suits was not to recover damages real property. The statute does not expressfor an injury to the person of the plaintiff ly or by implication provide for the survival nor for the detention or conversion of person of an action for malicious prosecution, which al property. The actions brought by Patter is not an injury to real estate or to the use son related to a leasehold estate for a long or enjoyment of it. Undoubtedly Edward A. term of years, which was a chattel real and Shedd suffered pecuniary losses by the proseunder our law classed as real estate. Knapp cution of the suits against him, but they were V. Jones, 143 Ill. 375, 32 N. E. 382. The ques- not the direct result of injuries to his leasetion to be determined is whether the action hold estate and do not come within the terms for malicious prosecution was an action to

of the statute, recover damages for injury to real property.

The judgment of the Appellate Court is While the word "property," in common use, affirmed. is applied to the tangible physical thing com

Judgment affirmed. monly called property, in the law it is not the material object, but the right and interest which one has in it, to the exclusion of others, which constitutes property. Property,

(312 III. 359)

V. in a legal sense, consists in the domination PRESSED STEEL EQUIPMENT CO. which is rightfully and lawfully obtained over

THORNBURGH PRESSTEEL CO, et al.

(No. 15450.) a material thing, with the right to its use, enjoyment, and disposition. In the full sense (Supreme Court of Illinois. April 14, 1924. it denotes a right in point of user, unrestrict Rehearing Denied with Modification ed in point of disposition and unlimited in

June 5, 1924.) point of duration over a determinate thing, Appeal and error (1083(1)-Rule as to con. and it may be applied to a right indefinite

clusiveness of judgment of Appellate Court, in point of user, but limited in duration, as

on appeal from judgment rendered in action a life interest in real estate. 2 Austin on tried by court, stated. Jurisprudence, 817; Penn Mutual Life Ins.

A judgment of the Appellate Court was Co. v. Heiss, 141 Ill. 35, 31 N. E. 138, 33 conclusive in an action tried by the court, Am. St. Rep. 273.

where no propositions of law were submitted, [4, 5] In construing statutes, however, the no demurrer to the evidence was interposed, court takes words in their ordinary and ac- no motion to find for appellant was made, and

no question was raised as to the admission and cepted meaning in popular use. Stuart v. exclusion of evidence, since in such case there Hamilton, 66 Ill. 253; Wheeler v. Wheeler, is no question of law presented to the Su134 I. 522, 25 N. E. 588, 10 L. R. A. 613; preme Court for review. Culver v. Waters, 248 Ill. 163, 93 N. E. 747. The rule was applied to the survival statute Appeal from Second Branch of Appelin Jones v. Barmm, 217 Ill. 381, 75 N. E. late Court, First District, on Appeal from

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(144 N.E.) Municipal Court of Chicago; Robert E. Gent-, overpayments by the debtors, and less total zel, Judge.

charges as shown in lines 38 to 42 hereof, to

be paid immediately upon payment of any such Attachment suit by the Pressed Steel accounts to second party, provided that no pay. Equipment Company against the Thorn- ments of any such remainder need be made burgh Pressteel Company, as principal debt- so long as any accounts purchased hereunder or, and the Commercial Acceptance Trust, as are affected by any breach or violation of war. garnishee. From a judgment for plaintiff ranty hereunder; but such remainder, and any against the garnishee, giving insufficient re- moneys, accounts, or property of the first parlief, plaintiff appealed to the Appellate party, may be held and later applied to the

ty which may come into possession of second Court, where the judgment was affirmed (228 payment of any accounts or any indebtedness.” Ill. App. 1), and it appeals. Affirmed. Walter H. Eckert, Warren B. Buckley, and

The second clause of the contract provided Loucks, Eckert & Peterson, all of Chicago, for remittances to be paid at the office of the for appellant.

Thornburgh Pressteel Company, and that Winston, Strawn & Shaw, of Chicago representatives of the Commercial Accept(John C. Slade and Harold Beacon, both of ance Trust might have the privilege of inChicago, of counsel), for appellee.

specting and auditing the books at the ex

pense of the former. The third clause proPER CURIAM. The appellant brought an vided that the Commercial Acceptance Trust attachment suit in the municipal court of would place its collection department at the Chicago against the Thornburgh Pressteel disposal of the Thornburgh Pressteel ComCompany, as principal debtor, and served the pany and upon request endeavor to collect di. appellee, the Commercial Acceptance Trust, rect. This clause also makes other provias garnishee. In the hearing on the attach- sions relative to the working relation bement, a judgment was entered against the tween the parties. The fourth clause pro Thornburgh Pressteel Company (hereinafter vides for the total compensation to be paid referred to as judgment debtor) in the sum of for such services rendered, as follows: $5,583; and in the issue made up on the gar "Fourth-The total compensation to be paid nishment proceeding, the court, on trial with by first party for all services and other conout a jury, entered a judgment against the siderations specified in lines 18 to 37 hereof, Commercial Acceptance Trust (hereinafter and for the charge as mentioned in line 11 referred to as garnishee) in the sum of $708.- hereof, it is hereby agreed shall be one-thirtieth 72. The judgment in garnishment was ap- of one per cent. (1/30 of 1%) of the net face pealed to the Appellate Court for the First value of accounts for each day from date of District. That court affirmed the judgment, plus $5 per $1,000 only on the first $100,000

purchase by and until paid to second party, issued a certificate of importance, and grant- of accounts purchased within any twelve suced an appeal to this court.

cessive months' period." Appellant contends that the judgment against the garnishee should bave been for The fifth clause sets forth the warranties the sum of $4,622.55. On the 15th day of referred to in the first clause and provides March, 1919, the judgment debtor entered in that the Thornburgh Pressteel Company war. to a certain agreement with the garnishee, in rants that: and by which it is expressed, in substance, “(a) First party, and each debtor named in that the Thornburgh Pressteel Company is an account, is solvent and will remain so until desirous of selling to the Commercial Accept- maturity thereof; (b) there will be no susance Trust its accounts receivable, notes, ac- pension of business, request for general exceptances, leases, mortgages, contracts, and tension, bankruptcy petition, any act choses in action, therein designated as ac- amounting to a business failure by or against counts, evidencing sales and deliveries of first party or any debtor; (c) every account

purchased hereunder and any settlement receivpersonal property usually dealt in by the ed thereon will be paid in full at maturity in Thornburgh Pressteel Company; that in con- cash or Chicago par funds; (d) prompt paysideration of the premises the parties agreed ment will be made to second party of any althat the Commercial Acceptance Trust would lowance or credit offered for sale to second from time to time during the continuance of party; (e) each amount offered for sale to the agreement purchase such of said ac- second party shall represent a bona fide sale counts belonging to the Thornburgh Pressteel and delivery of property usually dealt in by Company as should be acceptable to the Com- first party, and shall be for a certain, undismercial Acceptance Trust and pay therefor due or to become due on the dates set forth;

puted, liquidated claim or demand which is 100 per cent. of the net face value of the ac- (f) first party will not sell or assign any of its counts purchased,

own accounts elsewhere without first giving ten "less a charge equal to the legal rate of in- days' written notice to second party of such terest on the money outstanding thereon, of intention.” which 77 per cent, of the net face value thereof shall be paid in cash upon acceptance there

The sixth clause provides for an assignof by the second party, and the remaining 23 ment in writing of all accounts thus sold and per cent., less any deductions and plus any purchased, and that the Commercial Accepto

or

ance Trust may become subrogated to all the the uncontroverted facts, the Judgment was rights in each of said accounts of the Thorn- erroneous. The court said: burgh Pressteel Company. The seventh

"It has been held by this court in numerous clause provides that in case of breach of war

cases, that where a declaration alleges a good ranty the Commercial Acceptance Trust shall cause of action, and there is issue thereon, and be entitled to receive damages arising out of a trial is had before the court without a jury, such breach, including attorney's fees, ex- and no questions of law are raised at the trial penses, court costs, etc. The eighth clause in regard to the admission or exclusion of eviappoints attorneys in fact of the Thornburgh dence, and no propositions of law are submitted Pressteel Company, with power to receive, to the court, pursuant to the statute, to be open, and dispose of all mail addressed to it, trial court is affirmed by the Appellate Court,

ruled upon, and the judgment entered by the and to indorse its name upon any notes, ac

no question law can arise in this court in ceptances, checks, drafts, money orders, or respect to the finding of the trial court, and other evidences of payment or collateral that | the judgment of the Appellate Court must necmay come into its possession as payments of essarily be affirmed.” or on accounts purchased under said contract. The ninth clause provides that no In Bolton v. Johnston, 163 Ill. 234, 45 N. E. change shall be made in the contract except 203, the action was to recover damages for in writing, duly entered into by the parties. breach of a contract. The trial was by the

In answer to interrogatories filed in the court upon an agreed statement of facts. municipal court the garnishee set up this con. There was judgment for the plaintiff, which tract, and alleged that at the time of service on appeal to the Appellate Court was afof the writ, July 31, 1919, it was not indebt-firmed. On the trial of the case no objeced to the judgment debtor, but that after that tion was made to the admission of any evitime, and up to the time of filing its amended dence, and no propositions of law were subanswer, on August 27, 1919, the sum of $1,- mitted to be held by the court. This court 017.89 became due it from the garnishee on held that, where the declaration alleged a the accounts purchased under the contract. cause of action, issues were made by pleas, The answer was traversed, and on the trial trial had before the court without a jury, the court found that on the date of the an- and no objections made to the admission or swer the garnishee owed the judgment debtor exclusion of evidence, and no propositions of the sum of $1,017.89, less $309.17 due it under law were submitted, when the judgment is the agreement, and entered judgment for the affirmed by the Appellate Court, no question sum of $708.72 as the difference between the of law can arise in this court in regard to the amounts.

finding of the trial court, but the judgment It was on the trial admitted by the gar- of the Appellate Court is conclusive, and nishee that it had collected, after the filing of must be affirmed. In that case the action the answer and before the hearing herein was based on a written contract, which was (some two years later), the entire 23 per introduced in evidence, and upon that quescent. referred to in the contract, amounting, tion the court said, if a construction of the less deductions, to the sum of $4,622.55, contract was desired, it might have been obwhich sum, less that admitted due by the an- tained by submitting an appropriate proposiswer in the garnishment proceedings, it had tion of law to the court, and a ruling on any remitted to the judgment debtor. This is other legal question might have been obthe amount claimed by appellant.

tained in the same way. The court cites and Appellee contends that, as the trial was by quotes at length from Cothran v. Ellis, 125 the court and no propositions of law were 11l. 496, 16 N. E. 646, in support of the deci. submitted, no demurrer to the evidence or sion. motion to find for appellant, and no question Grabbs v. City of Danville, 166 Ill. 441, 46 having been raised as to the admission and N. E. 1116, was an action begun before a poexclusion of evidence, no question of law is lice magistrate for an alleged violation of a presented to this court for review, and the city ordinance. Plaintiff recovered, and dejudgment of the Appellate Court is conclu- fendant appealed to the circuit court. In sive.

that court a jury was waived, and the case It must be admitted there is some confu- | heard before the court on an agreed statesion in the decisions of cases coming to ment of facts, resulting in a judgment for this court from the Appellate Court. Ameri- plaintiff, which was affirmed by the Appelcan Exchange Nat. Bank v. Chicago Nat. late Court. At the trial in the circuit court Bank, 131 Ill. 547, 22 N. E. 523, was an action no question was raised as to the admission of assumpsit. After plea filed and issue or exclusion of evidence and no propositions joined the case was submitted to the court of law were submitted to the court. This for trial without a jury. There was a judg- court said: ment for plaintiff, which on appeal to the

“Under such a state of facts this court has Appellate Court was affirmed. There was no often held that no question of law is presented conflict in the testimony, and the question of on appeal or writ of error for decision"-citlaw sought to be raised was whether, under ing Bolton v. Johnston, supra, and Chicago,

(144 N.E.) Burlington & Quincy Railroad Co. v. City of , review in this court in a case brought here Ottawa, 165 I. 207, 46 N. E. 213.

by appeal or writ of error from the Appellate The action in Mutual Protective League v.

Court is by demurrer to the evidence, propo

sitions of law, or motion to find in the trial McKee, 223 Ill. 364, 79 N. E. 25, was on a death benefit certificate, and defendant filed court, but insists the cases do not say those pleas denying liability. After the issues are the only ways in which the question can were joined a jury was waived and the case be preserved, and refers to Weld v. First Nat. tried by the court upon a stipulation of facts. Bank, 255 III. 43, 99 N. E. 72, and Pittsburgh, The court rendered judgment for plaintiff, Cincinnati, Chicago & St. Louis Railway Co. which was affirmed by the Appellate Court. v: Chicago City Railway Co., 300 111. 162, 133 The court said:

N. E. 181. The Weld Case involved the con

struction of a written instrument and the tri“This court has uniformly held that except al court held a proposition of law construing as to questions arising during the progress of it. In the last case cited the decision is apparthe trial upon the rulings of the court upon pleadings, the admissibility of evidence and ently based on the proposition that a question kindred subjects, questions of law can only be of law may be raised by an exception to the preserved and presented to this court, when judgment, but since, under the Practice Act the trial is before the court without a jury, as it now exists, the judgment may be inby written propositions in accordance with sec- quired into without preserving exceptions to tion 42 of the Practice Act.”

it, a question of law as to the correctness of The court cites and approves Grabbs v. the judgment may be preserved without reCity of Danville, supra, and Bolton v. John- sort to the submission of propositions of law,

or any of the other methods held necessary ston, supra.

Conway v. Garden City Paving Co., 190 I11. in numerous previous decisions. We think 89, 60 N. E. 82, was an action of assumpsit. the former decisions are sound and should After issues joined, a jury was waived and not be overruled, and that the case of Pittsthe case submitted to the court on an agreed burg, Cincinnati, Chicago & St. Louis Railstatement of facts in writing. Judgment was

way Co. v. Chicago City Railway Co., supra, rendered for plaintiff, which was affirmed on

in so far as it departs from the previous de appeal to the Appellate Court. In the trial cisions, should not be adhered to.

It was court the defendant moved the court to find pointed out in Bradish v. Yocum, 130 III. 386, the issues for him, which motion the court de- 23 N. E. 114, that the rule is not the same in nied. This court reviewed the judgment of

cases coming directly to this court from the

trial court. the Appellate Court and reversed it. In the opinion the court said it had held that in a

We are of opinion that under our repeated trial before the court it is proper to raise a decisions, covering a period of a quarter of question of law for review in this court by a century, none of which have been overdemurrer to the evidence, propositions of ruled, and the soundness of none of them aflaw submitted to the court, or a motion to fected by any later decisions, no question of find for the party. This court held the con

law is preserved for our consideration in this tract sued on was fraudulent and illegal, and case, and the judgment of the Appellate

Court is affirmed. that question of law was preserved by the motion of defendant to find for him.

Judgment affirmed. In Babbitt v. Grand Trunk Western Railway Co., 285 III. 267, 120 N. E. 803, it was held that when an action at law is tried without a jury, and no question is raised as

(312 Ill. 386) to the admission or exclusion of evidence, PATTERSON et al. v. VERMILION ACAD.

EMY. (No. 15903.) and no propositions of law are submitted, but the defendant moves for judgment in his fa- (Supreme Court of Illinois. April 14, 1924. vor, the overruling of the motion presents a Rehearing Denied with Modification question of law for review by this court in a

June 12, 1924.) case coming here from the Appellate Court. 1. Mortgages Saw 1 14-Held to secure only pay. The court said, when there is no controversy ment of annuity. as to the facts, what is the proper judgment

Where, in consideration of the payment of to be rendered may be raised as a question of an annuity to grantor, he conveyed property to law by demurring to the evidence, by proposi. an educational institution pursuant to a contions to be held as law, or by motion to find tract that the income thereof should be used for the party. The court further said, if “exclusively for school purposes,” by deed none of those methods had been adopted, no giving grantee the right to sell the real estate

after death of grantor and thereby convey question would have been preserved for re

the fee, and the grantee, pursuant to the same view by this court.

contract, delivered back to grantor a mortgage Appellant seemingly concedes the cases cit

on the realty conveyed. "to secure the payed above, or some of them, hold that the ment" of the agreed annuity, "and for the method of preserving a question of law for / performance of all covenants and agreements

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