Slike stranica
PDF
ePub

(125 N.E.)

and however beneficial an act of the Legisla- | against the Chesapeake & Ohio Railway ture may be to a particular person, or however Company. The Appellate Court affirmed a injuriously its repeal may affect him, the Legis- judgment for plaintiff (210 Ill. App. 136), and lature clearly has the right to abrogate it. the defendant brings certiorari. Reversed. Worth E. Caylor, of Chicago, for plaintiff in error.

8. STATUTES 276(1)—EFFECT OF REPEAL OF STATUTE GIVING SPECIAL REMEDY ON PENDING SUITS.

If a statute giving a special remedy is repealed without a saving clause, all pending suits must stop where the repeal finds them. 9. APPEAL AND ERROR 1107-EFFECT OF REPEAL OF STATUTE GIVING SPECIAL REMEDY.

If a case prosecuted under a statute giving a special remedy is appealed, and pending the appeal the law is repealed, the appellate court must dispose of the case under the law in force when its decision is rendered, and a judgment of the lower court allowing a recovery will be reversed, although correct when pronounced

in the subordinate tribunal. 10. DEATH

35-ABROGATION

FOR DEATH OUTSIDE STATE.

OF REMEDY

Bulkley, More & Tallmadge, of Chicago, for defendant in error.

THOMPSON, J. This cause comes to this court by writ of certiorari to the Appellate Court for the First District to review a judgment of that court affirming a judgment of the circuit court of Cook county for $10,000, in an action on the case instituted by Sarah Mary Wall, administratrix of the estate of Edward Wall, deceased, against the Chesapeake & Ohio Railway Company, to recover damages for the death of said Edward Wall. This case has been in the courts for over 20 years. The first suit was filed on March 29, 1898, in the superior court of Cook county to recover damages for the death of Edward Wall, who was killed in Cincinnati,

The proviso of 1903 (Laws 1903, p. 217) added to the Injuries Act of 1853, had the same effect as the repeal of a statute, as far as bringing actions for damages for wrongful death occurring outside the state was concern-Ohio, on May 24, 1896. The cause was re

ed, and such amendment had the effect of arresting pending judicial proceedings to obtain damages for wrongful death.

11. DEATH 35 - JURISDICTION OF ACTION WHERE DEATH OCCURRED IN FOREIGN STATE. The Injuries Act of 1853, before its amendment in 1903, was broad enough to confer jurisdiction in any action for the recovery of damages for death by wrongful act, and by comity this jurisdiction was extended to those cases where death by wrongful act occurred outside the state and a right of action existed under the laws of the state where the death

occurred.

[blocks in formation]

moved to the federal courts, where the service of summons was quashed. It is reported in 95 Fed. 398, 37 C. C. A. 129. The second suit was started in the circuit court of Cook County on the 8th day of June, 1899. The declaration consisted of 12 counts, and charged in general that Wall was in the employment of Nelson Morris & Co., and while in such employment was in charge of certain cars of live stock which were being shipped from Chicago to Newport News over the lines of the Big Four and the Chesapeake & Ohio Railway Companies; that it was his duty to accompany said live stock, and it was the duty of the railroad companies to furnish him a safe place to ride; that at Cincinnati the engine and caboose of the train on which he was riding were detached; that an

Injuries Act, § 2. as amended in 1903 (Laws 1903, p. 217), so as to read that "no action shall be brought or prosecuted in this state to re-engine of the Chesapeake & Ohio Railway cover damages for a death occurring outside of this state," abolished the right to bring, or prosecute pending actions for wrongful death occurring outside the state; the bringing of an action being the beginning of a suit, and the prosecution of an action being the further conduct of the suit.

Company was attached to the cars by its servants and they started to move the cars; that, the Chesapeake & Ohio Railway Company failing to provide a caboose or other safe place in which Wall could ride, he rode on top of the stock cars; that the train on

13. CONSTITUTIONAL LAW 105-No VESTED Which Wall was riding passed under certain

RIGHT IN ACTION FOR TORTS.

There can be no vested right in a claim for damages in a tort, not connected with or growing out of a contractual relation, until judgment is rendered.

viaducts in the city of Cincinnati which were so constructed that there was not sufficient space between the top of the cars and the viaducts, so that persons riding on top of the cars could safely pass thereunder; that

Dunn, C. J., and Carter and Stone, JJ., dis- Wall was riding with all due care and dilisenting.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Richard S. Tuthill, Judge.

Action by Sarah Mary Wall, administratrix of the estate of Edward Wall, deceased,

gence on top of one of said cars, and, not knowing of the danger from said viaducts, was struck by one of the viaducts and received injuries from which he died. The statute of the state of Ohio creating the right to recover damages for death from wrongful act was also set forth. The case was carrier.

For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes

through the Appellate Court and this court [act occurring outside this state. Our statute on a question of pleading, and is reported in 101 Ill. App. 431, and 200 Ill. 66, 65 N. E. 632. The judgments of the circuit court and Appellate Court were reversed in this court, for the reason that the defense of the statute of limitations (Hurd's Rev. St. 1917, c. 83) cannot be raised by demurrer, even though the declaration upon its face shows that the time for bringing the suit has elapsed, holding that such defense must be set up by plea. The case was remanded and redocketed in the circuit court, and after great delay in settling the issues the cause was in 1913 again taken to the Appellate Court on a question of pleading and reversed. It is reported in 189 Ill. App. 234. The cause was remanded and redocketed in the circuit court, and on the second trial before a jury the defendant, plaintiff in error here, at the close of all the evidence, asked the court to instruct the jury to find the defendant not guilty. This motion was overruled, and judgment was entered on the verdict of the jury for the sum of $10,000. Motions for a new trial and in arrest of judgment were made and overruled. On appeal to the Appellate Court this judgment was affirmed, and the cause is brought here by certiorari.

[1, 2] Many errors are relied upon for a reversal, but the first point we shall determine is whether or not the courts of Illinois have jurisdiction of this cause of action. It is a rule of law well settled in this state that a right of action which has accrued under a statute of a sister state of this Union will be enforced in the courts of this state unless prohibited by law, or unless it is against morals or natural justice, or unless it is against the general interests of the citizens of this state. Chicago & Eastern Illinois Railroad Co. v. Rouse, 178 Ill. 132, 52 N. E. 951, 44 L. R. A. 410; Dougherty v. American McKenna Process Co., 255 Ill. 369, 99 N. E. 619, L. R. A. 1915F, 955, Ann. Cas. 1913D, 568. The statutes of Ohio set out in this declaration are not regarded in this state as against morals or natural justice or hostile to the general interests of our citizens. Therefore they must be enforced by our courts, unless such enforcement is prohibited by law.

[3-5] Section 2 of the Injuries Act (Hurd's Stat. 1917, p. 1662) was amended in 1903 (Laws 1903, p. 217), and by said amendment it was declared that

"No action shall be brought or prosecuted in this state to recover damages for a death occurring outside of this state."

If these words be given their natural or ordinary meaning, they expressly prohibit the bringing or the prosecution of the present action in the courts of this state. Our Injuries Act has never given to any person a right of action for a death by wrongful

has no extraterritorial force. The right of action in this case arose under the Ohio statute, and, as we have said, the rights acquired under that statute will, in comity, be enforced in our courts, if not against our laws. The law of the place where the right was acquired or the liability was incurred will govern as to the right of action, while all that pertains merely to the remedy will be controlled by the law of the state where the action is brought-i. e., by the law of this state. Chicago & Eastern Illinois Railroad Co. v. Rouse, supra; Dougherty v. American McKenna Process Co., supra. Inasmuch, therefore, as our Injuries Act never gave a right of action for death by wrongful act occurring in another state, the only interpretation we can put upon the words quoted from the act is that it was intended by the Legislature to forbid the bringing or the prosecution of any action in this state to recover damages for a death by wrongful act occurring outside this state. Each state, subject to restrictions of the federal Constitution, determines the limits of jurisdiction of its courts, the character of the controversies which shall be heard in them, and how far its courts having jurisdiction of the parties shall hear and decide transitory actions where the cause of action has arisen outside of the state. Different states may have different policies, and the same state may have different policies at different times, provided that any policy the state may choose to adopt must operate the same way on its own citizens and those of other states. Dougherty v. American McKenna Process Co., supra; Walton v. Pryor, 276 Ill. 563, 115 N. E. 2, L. R. A. 1918E, 914; Kenney v. Loyal Order of Moose, 285 Ill. 188, 120 N. E. 631.

[6, 7] Our Injuries Act confers jurisdiction upon our courts in cases resulting in death by wrongful act, which they did not have before it was given them by the Legislature. By the amendment of 1903 the Legislature took this jurisdiction from our courts, in so far as the authority conferred by the act of 1853 had enabled them, by comity, to entertain suits for the recovery of damages for a death by wrongful act occurring outside of this state. The Injuries Act of 1853 gave no vested right to any one interested in recovering damages for a death by wrongful act occurring outside of the state. The plaintiff

had no vested right in the statute of 1853, and the Legislature could have, had it seen fit, entirely repealed this statute, and thereby swept away the entire remedy provided by it. There is no vested right in a public law which is not in the nature of a private grant. However beneficial an act of the Legislature may be to a particular person, or however injuriously its repeal may affect him, the Legislature would clearly have the right to

(125 N.E.)

abrogate it. Sharp v. Sharp, 213 Ill. 332, 72 ally prohibits the prosecution of the suit as N. E. 1058.

[8, 9] It is well settled that, if a statute giving a special remedy is repealed without a saving clause in favor of pending suits, all suits must stop where the repeal finds them. If final relief has not been granted before the repeal went into effect, it cannot be after. If a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when its decision is rendered. The effect of the repeal of a statute is to obliterate the statute repealed as completely as if it had never been passed, and it must be considered as a law that never existed, except for the purposes of those actions or suits which were commenced, prosecuted, and concluded while it was an existing law. Pending judicial proceedings based upon a statute cannot proceed after its repeal. This rule holds true until the proceedings have reached a final judgment in the court of last resort, for that court, when it comes to pronounce its decision, conforms it to the law then existing, and may therefore reverse a judgment which was correct when pronounced in the subordinate tribunal from whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal. Vance v. Rankin, 194 Ill. 625, 62 N. E. 807, 88 Am. St. Rep. 173, and cases there cited.

[10-12] The proviso of 1903 added to our Injuries Act had the same effect as the repeal of a statute. In other words, the Injuries Act before this proviso was broad enough to confer jurisdiction on our courts in any action for the recovery of damages for death by wrongful act, and by comity this jurisdiction was extended to those cases where death by wrongful act occurred outside of our state and a right of action existed under the laws of the state where the death occurred. Our courts then provided the remedy. This proviso took away that remedy in 1903, and it no longer exists in this state. Crane v. Chicago & Western Indiana Railroad Co., 233 Ill. 259, 84 N. E. 222. The effect is the same as if the remedy never existed in this state, except for the purpose of those suits which have reached a final judgment. The result is all the more clear when we consider that the act specific

well as the bringing of the suit. To prosecute a suit is to proceed against a party judicially. It is the act of conducting or waging a proceeding in court. State v. District Court, 19 N. D. 819, 124 N. W. 417, Ann. Cas. 1912D, 935. To prosecute an action includes, not only the bringing, but the carrying on, of the action. Inhabitants of Great Barrington v. Gibbons, 199 Mass. 527, 85 N. E. 737; Cheshire v. Des Moines City Railway Co., 153 Iowa, 88, 133 N. W. 324. The term "prosecute" means to bring a suit in a court for the redress of a wrong; to carry on a judicial proceeding against another or to seek to enforce a claim or right by legal process. Western Electric Co. v. Pickett, 51 Colo. 415, 118 Pac. 988, 38 L. R. A. (N. S.) 702, Ann. Cas. 1913A, 1322. The bringing of an action is the beginning of a suit; the prosecution of the action is the further conduct of the suit. Whenever the Legislature declares that no action shall be "brought" or "prosecuted," it is presumed that it intended each phrase to have its distinct meaning; else there was no occasion to use both. Buecker v. Carr, 60 N. J. Eq. 300, 47 Atl. 34.

[13] Plaintiff had no vested right in this proceeding when it was instituted in the lower court with the full knowledge that it was within the power of the legislature to declare that no such actions could be maintained in this state. There can be no vested right in the claim for damages in a tort not connected with or growing out of a contractual relation until judgment is rendered. 12 Corpus Juris, 972. Inasmuch as the plaintiff had no vested right in the broad jurisdiction conferred upon our courts by the act of 1853, and inasmuch as our Legislature has declared that our courts cannot longer entertain a cause of action for the recovery of damages for a death by wrongful act occurring outside of this state, the peremptory instruction requested by the defendant should have been given.

For the reason that the further prosecution of this cause of action is prohibited by the law of this state, the judgments of the circuit court and the Appellate Court are reversed.

Judgment reversed.

DUNN, C. J., and CARTER and STONE, JJ., dissent.

(290 Ill. 252)

Error to First Branch Appellate Court, WILLIAM E. DEE CO. et al. v. PROVISO First District, on Appeal from Superior Court, Cook County; Martin M. Gridley, Judge.

COAL CO. et al. (Nos. 12589, 12590.)

(Supreme Court of Illinois. Oct. 27, 1919. Rehearing Denied Dec. 13, 1919.)

Suit by William E. Dee Company and others against the Proviso Coal Company and others. From decree for complainants de1. CORPORATIONS 232(2)-GOOD WILL OF fendants James S. Stephens and others ap

BUSINESS FOR WHICH STOCK WAS ISSUED.

pealed to the Appellate Court which first afA retail coal business, owned by a partner-firmed, but on petition for rehearing by deship and taken over by a corporation which is fendants reversed the decree and remanded sued stock therefor, having never been profitable except for a period in one winter season, and the cause generally, whereupon complainants then only on account of a strike, when it had a filed petition for rehearing, which was grantmonopoly in its town, was possessed of no good ed and the decree reversed, and defendants will of any value, though it was a going con- petitioned the Supreme Court for writs of certiorari, which were granted. Judgment of the Appellate Court (212 Ill. App. 400), OF reversed, and decree of the superior court affirined.

cern.

2. CORPORATIONS 269(3) EVIDENCE
*mm
VALUE OF PARTNERSHIP BUSINESS TURNED
OVER FOR STOCK.

error.

In suit by creditors of a coal company to Frederic E. von Ammon and Marcus Hitch, enforce the stockholder's liability of former both of Chicago (Butz, von Ammon & Johnpartners in a retail coal business, who had in-ston, of Chicago, of counsel), for plaintiff in corporated the company and received stock for a transfer of the firm business, evidence held not to show that the property of the firm turned over in payment for the stock was worth at least $25,000, instead of $17,000 plus, as the Appellate Court valued it.

3. CORPORATIONS 269(1)-BURDEN TO SHOW VALUE OF BUSINESS TRANSFERRED WAS

EQUAL TO VALUE OF STOCK RECEIVED.

In suit by creditors of a coal company to enforce the stockholders' liability of former partners in a retail coal business, who had incorporated the company and received stock for transfer of the firm business, defendant stockholders had the burden to prove that the firm property transferred by them had a cash value equal to the capital stock received.

4. APPEAL AND ERROR 1009(1)-REVIEW OF VALUATION OF PROPERTY TRANSFERRED FOR

STOCK.

Frank Crozier and Albert N. Charles, both of Chicago (William S. Corbin, of Chicago, of counsel), for defendants in error.

CARTWRIGHT, J. In February, 1901, the plaintiffs in error, James S. Stephens and Oliver J. Westcott, were partners in business as manufacturers of structural iron and steel specialties on premises owned by them adjacent to the Chicago Great Western Railway in Maywood, in Cook county, and at that time they started a retail coal business on the same premises under the name of Proviso Coal Company. They conducted the business as a partnership until February 11, 1903, when they obtained a charter, changing their partnership in the coal business to a corporation under the same name, with a capital stock of $25,000. They subscribed for the whole stock in equal shares, and adopted a resolution that the corporation should purchase the assets and business of the partnership for $25,000 as full payment of their subscriptions

The valuation, fixed by the trial court, of property transferred by defendant stockholders in payment for their stock, such property consisting of coal sheds, land, and a switch track, was a matter of judgment, and will not be dis-to the capital stock, and certificates were isturbed in suit by creditors of the company to enforce the stockholders' liability, in the absence of evidence to show they were excessive.

OF

5. CORPORATIONS 232(3) - LIABILITY STOCKHOLDERS FOR OVERVALUATION OF PROP

ERTY GIVEN FOR STOCK.

Property may be taken in payment for stock issued by a corporation, but it must be done by a valid contract of bargain and sale, and payment with property for capital stock is no payment except to the extent of the true value of the property, and for any overvaluation the stockholders are liable to the company's creditors to make up the deficiency.

6. CORPORATIONS 544(2)-CAPITAL STOCK A

TRUST FUND FOR CREDITORS.

The capital stock of a corporation is a trust fund for the security of its creditors.

sued accordingly as fully paid. The business was carried on by the corporation until November, 1904, when, the sheds having burned, the capital stock and property were sold to George Bendixen for $3,000, payable $500 cash and the balance in notes of small amounts running for a long period of time. Bendixen ran the business until 1911, and, having incurred liabilities to creditors, a voluntary assignment was made in the county court, and the creditors realized 19 per cent. upon their claims. Defendants in error who were creditors, filed their bill in the superior court of Cook county under section 25 of the act concerning corporations (Hurd's Rev. St. 1917, c. 32, § 25) for pecuniary profit, charging that the property turned over by plaintiffs in error, as partners, to the cor

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(125 N.E.)

years before the incorporation; that Maywood was a rapidly growing village; that the annual tonnage of the business was 5,000 tons, averaging 80 cents per ton profit; and that the physical, tangible assets amount

ing a 10 per cent. basis, the value of the business would be about $40,000, and the difference between the tangible assets of $17,000 and the capitalization of $40,000 would be the value of the good will. They said that $35,000 would be a fair figure for the property, and the good will was worth $18,000, on the supposition that the facts given were true. These opinions have a familiar sound as applied to taking in different plants in a merger into large corporations, and undoubtedly exemplify the theory and practice of those who have designs on the pocketbooks of the public in forming such mergers. What other or different occasion there was for these witnesses to appraise the property of coal companies does not appear, and one of them testified that he had examined probably over 60 retail coal businesses in taking over coal properties in connection with large mergers of the coal business. Of course, every one knows that $4,000 is 10 per cent. of $40,000, but there is no evidence that would justify a conclusion that under other conditions than those stated by the witnesses any retail coal business is sold on the basis stated by them.

poration, of which they were the sole owners, in payment of the entire capital stock, was not worth $25,000, and seeking to charge plaintiff's in error with stockholders' liability. The answer of plaintiffs in error alleged that the property of the partnership was worth ined to $17,000. Their opinion was that, adoptexcess of $25,000, and the capital stock was fully paid. The master in chancery, to whom the cause was referred, reported that the business and assets of the partnership were well worth the sum of $25,000, and the capital stock was paid for in full with the property, and he recommended that the bill be dismissed for want of equity. The chancellor sustained exceptions to the report, and entered a decree finding that the aggregate value of the property conveyed to the corporation was not in excess of $12,600, and that the plaintiffs in error were liable to the extent of $12,400, or $6,200 each, and entered a decree accordingly. The plaintiffs in error prosecuted separate appeals to the Appellate Court for the First District, and the appeals were consolidated in that court, and errors and cross-errors were assigned. The Appellate Court first affirmed the decree of the superior court, but upon petition for a rehearing by the plaintiffs in error the decree of the superior court was reversed, and the cause remanded generally. The defendants in error then filed a petition for rehearing, which was granted, and the decree of the superior court was reversed. The Appellate Court found, and it was admitted, that there had been a mistake of $140 in the cash on hand, which was added to the value of the tangible property. The court also concluded that the good will of the business was worth $5,000, and that the tangible property and good will was therefore worth $17,740, and the liability of the plaintiffs in error was for $7,260, or $3,630 each. The plaintiffs in error petitioned this court for writs of certiorari, and an order having been entered consolidating them, the applications were granted. The plaintiffs in error assigned errors on the record, and defendants in error assigned cross

errors.

[3] There is not the slightest reason to question the good faith or honesty of plaintiffs in error, or any reason to suppose that they had any evil design against creditors or the public. Of course, they did not anticipate a business failure, but when it occurred the law cast upon them the burden of proving that the property had a cash value equal to the capital stock. Whether the subject was one for expert testimony, or whether the chancellor, having the history of the business, the value of the assets, and the amount of business done presented to him, could determine for himself what any one would be likely to pay for such property, the hypothesis of fact had no substantial basis in the evidence. The business had never yielded a reasonable profit, except in the latter part of November and in December, 1902, and Janu

[1, 2] The assignment of errors questions the conclusion of the Appellate Court that the property of the partnership turned over to the corporation in payment for the capital stock was worth only $17,740, and it is in-ary, 1903, when it was impossible for other sisted that the evidence shows it to have been worth at least $25,000. There is evidence that the property was worth much more than $25,000, consisting of opinions of public appraisers of similar property who were examined as experts, the opinions of dealers in lumber, coal, and ice in Maywood and an adjoining town, and evidence of the great prosperity of the business in a time when the partnership had a monopoly of the coal business in Maywood. The experts were asked to give opinions of the value of the property based on the hypothesis that the business had been carried on for about two

dealers to get hard coal on account of the strike of that year, and the plaintiffs in error had a monopoly of that business at Maywood. At the beginning the plaintiffs in error conducted the business with a manager from the spring of 1901 until October 15, 1902, with little or no profit, and they then discharged the manager and hired a clerk in the office, and gave the business considerable personal attention. Soon afterward the strike occurred, and other dealers in Maywood could not get any hard coal, or a very limited amount. The plaintiffs in error had a contract with the Lehigh Valley Coal Com

« PrethodnaNastavi »