court and circuit court should be reversed, and that the cause should be remanded to the circuit court for further proceedings.

(185 I11. 384)

SELLERS v. THOMAS et al. (Supreme Court of Illinois. April 17, 1900.) CHATTEL MORTGAGE RECITAL AS TO SECURITY IN NOTE-VALIDITY-APPELLATE COURT-JURISDICTION.

1. An action under Hurd's Rev. St. 1897, p. 1614, providing for the trial of the right of property in personal property, is a "proceeding at law," within Act June 2, 1877, § 8. as amended by Act 1887, providing that the appellate court shall have jurisdiction of all matters of appeal from the final judgments of the county courts "in any suit or proceeding at law" other than criminal cases.

2. Under Laws 1895, p. 260, requiring that "all notes secured by chattel mortgage shall state upon their face that they are so secured," a chattel mortgage is not void in the hands of the mortgagee, as against an execution creditor of the mortgagor, because of the recital in the note, simply, that it is "secured by mortgage."

Appeal from appellate court, Second district.

Action by Sanford Sellers against William F. Thomas and others to try the right of property in certain personal property. From a judgment of the appellate court for defendants (85 Ill. App. 58), plaintiff appeals. Reversed.

This is a proceeding instituted in the county court for the trial of the right of property in certain personal property and chattels under the "act providing for the trial of right of property," etc., approved April 9, 1875, in force July 1, 1875 (Hurd's Rev. St. 1897, p. 1614). The appellees William F. Thomas and Mattie A. Thomas obtained a judgment against David Sellers and Isabel Sellers. By virtue of an execution issued out of the circuit court of Putnam county upon said judgment, the sheriff levied on the personal property and chattels in question. The appellant, Sanford Sellers, gave notice to the sheriff, under section 1 of said act of April 9, 1875, that be claimed the property levied upon, and intended to prosecute his claim thereto. The property was claimed by the appellant under a chattel mortgage alleged to have been executed to appellant by said David Sellers. Upon the trial before the county court a jury was waived by agreement, and the cause was tried by the court. Judgment was rendered in favor of the appellant, claiming under said mortgage. The defendants below, the execution creditors. who are appellees here, took an appeal from the judgment of the county court to the appellate court. The appellate court reversed the judgment of the county court, without remanding the cause. The present appeal is prosecuted from such judgment of the appellate court, a certificate of importance having been granted.

James E. Taylor and Alfred R. Greenwood, for appellant. L. C. Hinckle and Arthur Keithley, for appellees.

MAGRUDER, J. (after stating the facts). 1. A motion was made in the appellate court by the present appellees, who were the appellants in that court, to dismiss the appeal there upon the ground that the appellate court was without jurisdiction to hear and determine the cause. It is claimed that the appellate court was without jurisdiction because section 11 of the act of April 9, 1875, in relation to the trial of the right of property, etc. (Hurd's Rev. St. 1897, c. 140a), provides that appeals may be taken to the circuit court "as in other cases"; and for this reason the contention is made that the present appellees should have taken their appeal from the county court to the circuit court, instead of the appellate court. Sections 122 and 123 of the act of March 26, 1874, in relation to county courts, provide that appeals may be taken from final judgments of the county courts to the circuit courts of their respective counties in all matters, except that appeals and writs of error may be taken and prosecuted from final judgments of the county court to the appellate court in proceedings for the confirmation of special assessments, in proceedings for the sale of lands for taxes and special assessments, "and in all common law and attachment cases, and cases of forcible detainer and forcible entry and detainer." Section 8 of the act of June 2, 1877, in regard to appellate courts, as amended in 1887, provides that the appellate courts shall have jurisdiction of all matters of appeal or writs of error from the final judgments of the county courts “in any suit or proceeding at law, or in chancery, other than criminal cases, not misdemeanors, and cases involving a franchise or freehold or the validity of a statute." Hurd's Rev. St. 1897, pp. 506–527. Section 8 of the appellate court act repealed by implication section 122 of the county court act, in so far as the latter section conflicted with it. So, also, it must be held that section 8 of the appellate court act repealed section 11 of the act of April 9, 1875, in regard to the trial of the right of property. Where there is a final judgment of the county court "in any suit or proceeding at law or in chancery," other than the cases already mentioned, such judgment may be taken by appeal or writ of error to the appellate court. While the present proceeding may not be regarded as a suit at common law, yet it is clearly a "proceeding at law." The trial of the right of property, as provided for in the act of April 9, 1875, is merely another form of the action of replevin, without formal pleadings. The views here expressed are sustained by the cases of Trust Co. v. Trumbull, 137 Ill. 146, 27 N. E. 24, and Lynn v. Lynn, 160 III. 307, 43 N. E. 482. We are therefore of the opinion that an appeal lay in the present case from the judgment of the county court to the appellate court, and that the appellate court committed no error in overruling the motion to dismiss the appeal for want of jurisdiction.

2. The appellant, Sanford Sellers, claimed the

*

property levied upon under the execution of the appellees, by virtue of a chattel mortgage held by him, and dated January 4, 1898, to secure a promissory note for $834 executed by David Sellers, and payable in two years after date. The appellate court, in their judgment reversing the judgment of the county court without remanding the cause to that court, made a finding of facts to the effect "that the note intended to be secured by the mortgage bore upon its face the words 'secured by mortgage,' and did not show that it was secured by a chattel mortgage; that appellee [appellant here] bases all his claim to the property on this supposed chattel mortgage." In other words, the appellate court, in their judgment, found that the note secured by the chattel mortgage in question did not show upon its face that it was secured by a chattel mortgage, and upon this ground held that the mortgage was invalid. The finding of facts by the appellate court in its judgment is only authorized by section 87 when its finding either wholly or in part of the facts concerning the matter in controversy is different from the finding of the trial court. Hogan v. City of Chicago, 168 Ill. 551, 48 N. E. 210. The note in the present case recited that it was "secured by mortgage." It would appear, therefore, that the trial court held these words to mean that the note was secured by a chattel mortgage, but, on the contrary, the appellate court has found that the note did not state upon its face that it was secured by a chattel mortgage. If the finding embodied in the judgment of the appellate court is such a finding of facts as is contemplated by section 87, we may inquire whether the law has been correctly applied to the facts, and determine whether the refusal to remand the cause was proper. If it appears that the law has been applied improperly upon the facts found by the appellate court and recited in its final judgment, it will be the duty of this court, on review of such question of law, to reverse the judgment of the appellate court. When the facts are found, it is a question of law as to what judgment shall follow. Hogan v. City of Chicago, supra; Hawk v. Railroad Co., 138 Ill. 37, 27 N. E. 450. The act of July 1, 1895, entitled "An act to regulate the assignment of notes secured by chattel mortgages, and to regulate the sale of property under the power of sale contained in chattel mortgages," provides, in the first section thereof, "that all notes secured by chattel mortgages shall state upon their face that they are so secured, and, when assigned by the payee therein named, shall be subject to all defenses existing between the payee and the payor of said notes the same as if said notes were held by the payee therein named, and any chattel mortgage securing notes, which do not state upon their face the fact of such security, shall be absolutely void." Laws 1895, p. 260. In Hogan v. Akin, 181 Ill. 448, 55 N. E. 137, where the act of July 1, 1895,

The

was construed, we held that a chattel mortgage is not void under section 1 of that act for failure of the note to state upon its face that it is secured by a chattel mortgage, unless the note has been assigned. In the case at bar the note had not been assigned, but was held by the appellant, the original payee therein. Under this decision the mortgage was good as between the parties thereto, irrespective of the question whether the note did or did not recite upon its face that it was secured by a chattel mortgage. It is therefore immaterial whether the note bore upon its face the statutory requirement or not, the provision of the statute having reference only to the assignment of such notes. holding of the appellate court was therefore wrong, and the law was not properly applied to the facts found by that court in its judgment. It is contended upon the part of the appellant that he took possession of the property before the lien of the execution attached. The rule is "that if the mortgagee actually obtains the possession, under a clause in the mortgage permitting him to do so, before any other rights attach, as respects the property he will hold the same position he would if the possession had passed to him at the time the mortgage was given." Frank v. Miner, 50 Ill. 444. On the other hand, it was contended on the part of appellees that at the sale under the chattel mortgage which took place on April 3, 1899, the appellant, the mortgagee, became a purchaser of most of the property, and that the property was permitted to remain on the farm of the mortgagor, the same as before the sale. But we do not deem it necessary to pass upon these claims or contentions. The recital in the judgment of the appellate court is as to one fact only, namely, that the note in question did not show upon its face that it was secured by a chattel mortgage. The recital in the judgment has no reference to any of the other contentions above named, namely, as to whether or not the mortgagee was a purchaser at his own sale, and as to whether or not the property after the sale was permitted to remain in the possession of the mortgagor. It will be presumed, therefore, that, as to these other questions not mentioned in the recital contained in its judgment, the appellate court found the facts the same as the county court found them; and the judgment of the county court was in favor of the present appellant upon these other issues. "Where there is a recital of the facts controlling some of the issues, and no recital of facts as to other issues, it may be presumed that the appellate court found in respect of the latter as did the trial court." Hayes v. Insurance Co., 125 Ill. 626, 18 N. E. 322; Hawk v. Railroad Co., supra.

Inasmuch as the appellate court incorrectly found the mortgage to be invalid, it erred in entering a judgment reversing the judgment of the county court without remanding the cause. Accordingly the judgment of the

these viaducts and their approaches were built in the year 1881. The viaduct and approaches over Polk street were built under an ordinance granted by the city of Chicago to the Chicago, Burlington & Quincy Railroad Company, which was passed by the city council on the 20th of December, 1880, which authorized the railway company to construct the viaduct and approaches under certain conditions, and provided in section 3 as follows: "Sec. 3. The permission and authority hereby granted are upon the express conditions that the said railroad company shall pay, or cause to be paid, to the city of Chicago the cost and expense of constructing and erecting a new viaduct on Polk street over the railroad tracks crossing said street, between Canal street and the Polk Street Bridge, together with all proper lateral and other approaches necessa ry thereto, the money necessary therefor to be paid by said company, as aforesaid, as fast as required by the city in paying for the construction of the said viaduct and the lateral and other approaches thereto, and shall maintain and keep the same in repair without expense or cost to the city of Chicago, such construction, maintaining and keeping in repair to be done pursuant to the direction of the city council, under the supervision of the commissioner of public works; and the permission and authority hereby granted are upon the further express condition that the said railroad company shall pay to the city of Chicago the expense of constructing, erecting, maintaining and keeping in repair viaducts over any of its tracks on any street or streets crossed by its tracks, except said Polk street above provided for, with proper approaches thereto, as the city council may from time to time require: provided, however, that when any such viaduct, except said Polk street viaduct above provided for, cannot be constructed across the tracks of said railroad company without crossing the track or tracks of some other railroad company or companies, the said Chicago, Burlington and Quincy Railroad Company shall only be obliged to join such other railroad company or companies in paying the expense of erecting, constructing, maintaining and keeping in repair such viaduct and approaches, and to pay its fair proportion of such expense as between it and such other company or companies; and if such other railroad company or companies shall not join said Chicago, Burlington and Quincy Railroad Company in payink said expenses, then, when the proportion of said other company or companies shall be otherwise provided, the said Chicago, Burlington and Quincy Railroad Company shall pay what would be its fair proportion of said expense in case such other company or comnies should join with it in the payment of said expenses as aforesaid. Said viaduct or viaducts, and approaches thereto, to be constructed according to the plans and specifications of the department of public works. Said Chicago, Burlington and Quincy Railroad

Company shall furnish sufficient outlets for the private property bounded by Harrison, Twelfth, Beach streets and the South Branch of the Chicago river." South Canal street, from Lumber street to the river, on the side of the property of William O. Tegtmeyer, as appears from the record, is now paved with a cedar-block pavement, in good condition; having been laid only about four years. His assessment was $750. The court confirmed the assessment against McFarlane and Tegtmeyer, and they have appealed to this court, and ask a reversal of the judgment.

Smoot & Eyer, for appellant Hugh McFarlane. Lackner, Butz & Miller, for appellant William O. Tegtmeyer. Charles M. Walker, Corp. Counsel, and Armand F. Teefy, Asst. Corp. Counsel, for appellee.

PER CURIAM. It is first contended that the court erred in holding that the property of appellants should be assessed for the paving of the approaches to the Polk Street and Harrison Street Viaducts. The evidence shows that within the limits of the improvement provided by the ordinance there are three approaches leading to the viaducts on Canal street, which extend east and west on streets intersecting Canal street. One of the approaches is at the north end of the improvement on Canal street, and leads up to the viaduct on Harrison street. The other two approaches lead up to the viaduct on Polk street. These approaches are each about 300 feet long. They are the full width of the pavement, and are supported by retaining walls of stone masonry, making about 900 lineal feet of pavement upon the approaches, for which appellants insist they should not be assessed. Section 1 of the foregoing ordinance of the city of Chicago, passed December 20, 1880, granted permission to the Chicago, Burlington & Quincy Railroad Company to construct tracks between West Harrison street and West Twelfth street. By section 3 of this ordinance the privileges granted by section 1 were "upon the express conditions that the said railroad company shall pay, or cause to be paid, to the city of Chicago the cost and expense of constructing and erecting a new viaduct on Polk street over the railroad tracks crossing said street, between Canal street and the Polk Street Bridge, together with all proper lateral and other approaches necessary thereto, the money necessary therefor to be paid by said company, as aforesaid, as fast as required by the city in paying for the construction of said viaduct and the lateral and other approaches thereto, and shall maintain and keep the same in repair without expense or cost to the city of Chicago, such construction, maintaining and keeping in repaid to be done pursuant to the direction of the city council." It was further provided in this section that "the permission and authority hereby granted are upon the further express condition that the said railroad company

shall pay to the city of Chicago the expense of constructing, erecting, maintaining and keeping in repair viaducts over any of its tracks on any street or streets crossed by its tracks, except said Polk street above provided for, with proper approaches thereto, as the city council may from time to time require." There was also a further proviso that, when any such viaduct could not be constructed across the tracks of said railroad company without crossing the track or tracks of some other railroad company, the Chicago, Burlington & Quincy Railroad Company should only be obliged to join such other railroad company in paying the expense of erecting, constructing, maintaining, and keeping in repair such viaduct and its approaches, which were to be constructed according to the plans and specifications of the department of public works. In other words, in consideration that the railroad company should construct, maintain, and keep in repair these viaducts and approaches, the city council granted to the Chicago, Burlington & Quincy Railroad Company the right to lay its tracks in certain places named in the ordinance. The object of the city was to protect itself from erecting or maintaining these viaducts and approaches, by reason of the concessions granted to the railroad. The evidence tends to show the viaducts and approaches were constructed in 1881, and paved with cedar blocks by the railroad company at that time. The word "approaches" must be held to include the retaining walls, the filling with dirt, and the paving and roadway, suitable for the use for which it was intended. This construction of the ordinance is further sustained by the fact that when the approaches were first constructed the pavement was not made by the property owners, but by the railroad company. The ordinance says the railroad company "shall maintain and keep in repair the approaches,"-not some particular portion thereof, but the whole structure, and without expense or cost to the city of Chicago. As counsel for appellants suggest, just as the word "bridge" would include the floor or roadway, so "approach" must include the pavement and roadway thereof.

The case of Hayes v. Railroad Co., 9 Hun, 63, seems to be in point. There an action was brought by Thomas Hayes against the New York Central & Hudson River Railway Company for injuries received by him by being thrown from his wagon on the north approach of the bridge crossing the defendant's tracks at West Albany. Upon condition that the railroad company would maintain the bridge, permission had been given to construct this bridge over the crossing at West Albany, and the bridge was constructed and maintained by the defendant. There were approaches to the ends of the bridge, which sloped up to them, and the surface of one of these approaches was out of repair, because of which plaintiff was injured. It was contended by the railroad company that the obli

gation to construct and maintain the bridge did not include the maintenance of the approaches, but the court held that the approaches were a necessary part of the bridge; that the railroad company could hardly be permitted to erect a bridge, and not construct the means of reaching it, and that in undertaking to build the bridge they undertook to make it accessible; and that what they undertook to construct they should maintain in repair. It was further contended by the railroad company that, even though they might be obliged to maintain the approaches, the maintenance did not apply to the surface of the roadway, and that this should be kept in order by the commissioner of highways; but the court, following the case of Railway Co. v. Dale, 8 El. & Bl. 836, held that maintaining the bridge included, not only the substructure and the support of the approaches, but the roadway as well. In the case of Railway Co. v. Dale, 8 El. & Bl. 836, above referred to, the same question arose. In that case a railroad company had carried a road over the railway by a bridge, and had constructed approaches of earth, with embankments to support the same. The depth of the earthwork and embankment, measuring from the surface of the former road, was about 15 feet on one side of the bridge, and about 21 feet on the other. The bridge and the approaches were constructed pursuant to a special statute, and pursuant to this statute notice was given to the railway company to put the bridge and approaches in good condition and repair. The order was not complied with, and the question arose as to whether or not the railway company, under this particular act, was obligated by law to maintain in repair the whole of said road, or what part thereof. The phrase of the statute which imposed the duty upon the railway company is that "such bridge, with the immediate approaches, and all other necessary work connected therewith, shall be constructed and at all times thereafter maintained at the expense of the company." Lord Campbell, C. J., says that it is clear that this section creates the obligation for which the respondent contends. "I cannot imagine language more conclusively creating an obligation. What is to be done in the first instance? It is said that the act distinguishes between a structure and a superstructure, but, clearly, the obligation which it imposes is not discharged by merely putting in arches. The work must be completed so as to be fit for the passage of carriages. Till then, the act is not complied with. But when constructed it is to be maintained, and the road as well as the superstructure was to be made. There is no inconvenience. On the contrary, the inconvenience would be the other way, if different bodies had to maintain the bridge and the road." Under the ordinance granting permission to the Chicago, Burlington & Quincy Railroad Company to construct tracks between West Harrison and West Twelfth

#