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criticism made upon this instruction is, that
the insertion of the words "did not rely upon
any assurance of safety made by Ruff" was
an assumption that Ruff had given assur-
ances of safety, and that whether he did give
such assurances was a disputed question of
fact, and it was error to assume its existence
in the instruction. It is true that there is
a disagreement among the witnesses as to the
exact language used by Ruff in relation to
the condition of the roof. Basing its argu-
ment upon these disagreements as to the
language used, plaintiff in error contends
that the instruction is erroneous in assuming
that there were assurances of safety. We
have already seen that there was no dispute
whatever as to the order given by Ruff to
the men to proceed with the work and clean
up the fall after he had made his examina-
tion, and that the giving of this order
amounted to an implied assurance that the
roof was reasonably safe. The instruction
is not open to the criticism made upon it.
[6] Plaintiff in error contends that the
court erred in refusing instructions 8, 19, and
20 offered by it. These instructions we have
examined; and, in view of those that were
given at the request of plaintiff in error,
there was no error in refusing these instruc-
tions. All the propositions of law contained
in these instructions that plaintiff in error
was entitled to were given to the jury in
other instructions.

[7] Plaintiff in error contends that, as a matter of law, defendant in error, being employed as a company man or rock shifter, and whose duty it was to remove falls and make dangerous places safe, was not entitled to the benefit of the rule which requires that the master shall exercise reasonable diligence to furnish a reasonably safe place in which to perform his work. This contention apparently is based upon a misapprehension of the common-law count. As we have already sought to show, that count is not based upon a violation of the duty of the master to furnish a reasonably safe place in which defendant in error was required to work, but is based upon the giving of a negligent order to work in a dangerous place.

[8] Since, as we have sought to show, the judgment is sustainable under the commonlaw count, it is not necessary to extend this opinion to discuss the case under the statutory counts. One good count which is supported by the evidence, and as to which there is no reversible error, is sufficient to support the judgment below. Consolidated Coal Co. v. Scheiber, 167 Ill. 539, 47 N. E. 1052; Swift & Co. v. Rutkowski, 182 Ill. 18, 54 N. E. 1038; Scott v. Parlin & Orendorff Co., 245 Ill. 460, 92 N. E. 318.

Finding no error in the record for which the judgment should be reversed, it is affirmed.

Judgment affirmed.

(259 Ill. 359)

PEOPLE ex rel. BROWNRIGG v.
BRENTANO.

(Supreme Court of Illinois. June 18, 1913.
Rehearing Denied Oct. 15, 1913.)

1. COURTS (§ 207*) - APPELLATE COURTS
ORIGINAL JURISDICTION-MANDAMUS.

issue a writ of mandamus to compel the judge
The Supreme Court, in a proper case, may
of an inferior court to hear a case pending in
that court.

[Ed. Note.-For other cases, see Courts, Dec. Dig. § 207.*]

2. MANDAMUS (§§ 7, 10*)-RIGHT TO REMEDY

-DISCRETION.

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[Ed. Note.-For other cases, see Mandamus,
Cent. Dig. $$ 5, 37; Dec. Dig. §§ 7, 10.*]
3. MANDAMUS (§ 48*)-JUDICIAL PROCEED-
INGS-COMPELLING JUDGE TO HEAR CAUSE.

ļ
Practice Act (Hurd's Rev. St. 1911, c. 110)
§ 23, provides that in any court wherein five or
more judges shall hold separate branches there-
of at the same time, including superior court
of Cook county, they shall designate two__of
their number to call the chancery docket. Up-
on a bill for specific performance before re-
spondent judge, an assignee of relator, the de-
fendant therein, filed a petition asking to be
substituted in place of relator and for the dis-
missal of his cross-bill, which petition was op-
posed and answered by relator, and before set-
tlement of the pleadings in the main case the
preliminary matter was heard April, 1912, and
after relator had introduced evidence for six
1912, respondent was assigned for one year to
days was continued generally, and in July,
the common-law side of the court, and the pro-
ceeding was put on the calendar of the judge
assigned to chancery cases; relator making no
further attempt to speed the cause until De-
cember, 1912. Respondent's answer to manda-
mus to compel him to conclude the hearing
showed that to complete it he would require a
transcript of the testimony to refresh his recol-
objected to the hearing before him, his refusal
lection, and that, although the assignee had
to continue it was based on the ground that an-
other judge had been designated to call the
chancery docket and that to conclude the hear-
ing would seriously interfere with the disposi-
tion of the jury trials upon his own calendar.
Held, that it did not appear that relator would
be unduly prejudiced by a hearing before the
judge designated to call the chancery docket,
and that the writ would be denied.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 95; Dec. Dig. § 48.*]

Original petition for mandamus by the People, on the relation of John J. Brownrigg, against Theodore Brentano, a Judge of Writ the Superior Court of Cook County. denied.

Chytraus, Healy & Frost and Carl V. Wisner, all of Chicago, for petitioner. Jacob Newman and Hiram T. Gilbert, both of Chicago, for respondent.

COOKE, C. J. This is an original proceeding for mandamus, brought by the relator, John J. Brownrigg, against Theodore

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Brentano, one of the judges of the superior | Company and its stockholders, and bargaincourt of Cook county, for the purpose of compelling the respondent to proceed with the hearing of a certain cause pending in the superior court of Cook county. The matter has been presented to us for determination upon the pleadings, which consist of the petition for mandamus, the answer thereto, and a demurrer to the answer. From the answer, and from the allegations of the petition which are either admitted or are not controverted by the answer, the following facts are disclosed:

ed for and obtained one-half of the capital stock of the Lorimer-Lundquist Company in exchange for the patents and patent rights owned by the Globe Company, and caused the certificates of stock to be issued in the name of Lynch, individually or as trustee, and now claim that he holds the same for them alone; that after the reorganization above mentioned, all the assets of the Lorimer-Lundquist Company were sold to the Western Electric Company for $650,000, and a dividend of 30 per cent. was declared by the Lorimer-Lundquist Company, which would distribute substantially all the cash received from said sale, the balance of the purchase money being payable in one and two years. The prayer of the bill was that the court determined the precise interest of Redfield in the capital stock of the LorimerLundquist Company; that Lynch be restrained from receiving, and the company from paying to him, any dividend or distributive share thereon; and that Lynch be required to transfer, assign, and deliver to Redfield such stock in the Lorimer-Lundquist Company held by Lynch as equitably belongs to Redfield, and for other incidental relief.

On December 11, 1911, one Casper L. Redfield filed his bill of complaint in the superior court of Cook county against Brownrigg and certain other defendants, including James D. Lynch, J. E. Norling, F. A. Lundquist, and A. L. Craig, to enforce specific performance of a contract for the transfer to Redfield of certain shares of the capital stock of the Lorimer-Lundquist Company, a corporation, and for other incidental relief. By that bill it was alleged that those who owned and controlled the capital stock of the Globe Automatic Telephone Company, a corporation (hereinafter referred to as as the "Globe Company"), acting and dealing with those who owned and controlled the capital On January 29, 1912, Brownrigg answered stock of the Lorimer Automatic Telephone the bill filed by Redfield, and also filed a Company, a corporation, after making the cross-bill against the complainant in the origcontract sought to be enforced, and for the inal bill and the remaining defendants, alpurpose of carrying out the same, reorganiz-leging that he, together with F. A. Lundquist ed the Lorimer Automatic Telephone Com- and John K. Norstrom, were the inventors pany, decreased its capital stock, and chang- of the patents and patent rights owned by ed its corporate name to the Lorimer-Lund- the Globe Company and exchanged for the quist Company; that as a part of the plan capital stock of the Lorimer-Lundquist Comof such reorganization one-half of the capital pany; that during the year 1900 they enstock of the Lorimer-Lundquist Company tered into a partnership with John E. Norwas issued to the interests of the Globe Com-ling and Peter Norling under an agreement pany and the other one-half to the interests that the Norlings should furnish the capital which previously were of the Lorimer Auto- necessary to develop and manufacture the matic Telephone Company; that the assets of inventions covered by the patents and patent the Globe Company consisted almost wholly rights, and in consideration thereof should of certain patents and patent rights which receive an assignment of a one-half interbecame exceedingly valuable about the time est in the said patents and patent rights, the of said reorganization, but that for a long inventors to retain the other one-half intime prior thereto the Globe Company had terest for themselves; that by a course of inbeen inactive, had held no meetings, and equitable and unconscionable schemes since had transacted no business because of a total the year 1900, John E. Norling, Lynch, Craig, lack of funds; and that on account of such and Lundquist had succeeded, without comquiescent condition the defendants Lynch, pensation or consideration, in appropriating Norling, Craig, and Lundquist, who were of- to themselves and in converting to their ficers of the company, were enabled to, and own use, from time to time, portions of the did, when the patents and patent rights be- interest in said patents and patent rights came valuable, in violation of their contrac- and inventions equitably belonging to Browntual obligations and of their duties as of- rigg, and had thereby, from time to time, reficers to the stockholders of the company, by duced his proportion or interest, so that at means of said reorganization and in connec- the time of filing the cross-bill Brownrigg tion therewith, wrongfully and fraudulently had but 141 shares of a total of 5,000 shares convert and appropriate the assets of the of the capital stock of the Globe Company; Globe Company, including one-half of the and that a large portion of the stock of the capital stock of the reorganized company, to company had been issued without payment their own use, in disregard of the rights of therefor. The prayer of the cross-bill was Redfield; that in said reorganization, Lynch, that the rights of Brownrigg and other Norling, Craig, and Lundquist, or some of stockholders of the Globe Company who had

Lorimer-Lundquist Company be ascertained; | Brownrigg and praying for the substitution that the consolidation of the Globe Com- of Lee as a party to the cause in the place of pany with the Lorimer Automatic Telephone Brownrigg and for the dismissal of BrownCompany and the transfer of the patents rigg's cross-bill therein. Brownrigg answered and patent rights to the Lorimer-Lundquist this petition, denying the validity of the asCompany be declared void and be set aside; signment to Lee on the ground that it had that the sale to the Western Electric Com- been obtained by false representations and pany be declared void and set aside, or, in for a grossly inadequate consideration, and the alternative, that the interest of Brown- alleging that he had tendered back the $1,500 rigg in the capital stock of the Lorimer-received from Lee and had repudiated and Lundquist Company be ascertained and rescinded the assignment, and praying that transferred to him, and for incidental re- the assignment be adjudged null and void lief.

On February 5, 1912, the Lorimer-Lundquist Company answered the original bill and filed a cross-bill, praying that the various claimants be compelled to interplead how the funds in possession of said company should be distributed and asking permission to pay such funds into court, and that all claims against it be transferred to such funds when paid into court.

On March 7, 1912, Lundquist, Norling, Craig, Lynch, and the Globe Company answered the original bill and the cross-bill filed by Brownrigg, denying material allegations of those bills and alleging other facts for the purpose of showing that there was no equity in the bill or cross-bill.

and that Lee be required to surrender the same. Shortly after this answer was filed the cause was set for hearing before Judge Brentano upon the petition filed by Lee and the answer of Brownrigg thereto. The hearing was begun on April 8, 1912, when Lee presented the evidence on his behalf and rested his case, and thereafter, on the same day, Brownrigg opened his case and introduced evidence on his behalf. On six subsequent days, up to and including April 19, 1912, Brownrigg offered evidence on his behalf before Judge Brentano and had not then concluded his case. On the date last mentioned one of Lee's solicitors informed the court that as he was a member of the Legislature of this state, and as the LegislaOn March 6, 1912, Lynch brought an action ture met in special session on April 24, 1912, in the municipal court of Chicago against he would ask that further hearing be postthe Lorimer-Lundquist Company to recover poned until some later date to be fixed in the dividend of $30 per share on the shares of the future, and thereupon the hearing was stock held by him, which had been declared continued generally. Thereafter, on July 5, by the company, as stated in the original bill. 1912, Lynch filed in said cause in the superior Thereupon Redfield filed his petition in the court his cross-bill against Brownrigg, Lee, superior court in the cause above mentioned, and others, alleging that on June 14, 1912, praying for an order restraining the prose- Lee, for a valuable consideration, assigned to cution of the suit in the municipal court un- Lynch all his right, title, and interest in and til the further order of the superior court. to the 141 shares of capital stock of the Lynch answered this petition, and on May Globe Company and all other rights and in28, 1912, the superior court entered an order terests which Lee had acquired by virtue of restraining the prosecution of the suit in the assignment from Brownrigg, and praying the municipal court. Lynch appealed from that the cross-bill filed by Brownrigg be disthat order to the Appellate Court for the missed, and that he (Lynch) be adjudged the First District, and the Appellate Court re-owner of the 141 shares of stock and of all versed the order of the superior court and re- other rights assigned and transferred by manded the cause for further proceedings. Brownrigg to Lee by the said assignment. In the meantime, on March 5, 1912, Brownrigg executed and delivered to one Walter H. Lee an instrument which purported, for a consideration of $1,500, to assign and transfer to Lee all the right, title, and interest of Brownrigg in and to the 141 shares of stock of the Globe Company, and any and all other interest, claim, or demand of Brownrigg in In July, 1912, in accordance with the pracsaid company or to any property of said tice in the superior court of Cook county, company, and also all claims, causes of action, Judge Brentano was assigned, for a period and matters in controversy that he had as- of one year, to duty on the common-law side serted in and by the cross-bill filed by him of the superior court and was relieved of as aforesaid, and authorized Lee and his duty on the chancery side of the court, and assigns to settle and dispose of the claims as- all chancery cases which had theretofore serted by him to any stocks, bonds, or other been assigned to him and which had not been property mentioned in the original bill or in finally disposed of, including the cause begun the cross-bill above mentioned. On March 22, by Redfield, were reassigned to and placed 1912, Lee filed in said cause a petition, setting upon the calendars of other judges of the

On August 19, 1912, Brownrigg filed a plea to the cross-bill of Lynch, setting up the filing of the petition by Lee and of Brownrigg's answer thereto, and the pendency of the hearing thereon, as a bar to the prosecution of the cross-bill by Lynch, and asking that the cross-bill be dismissed.

the chancery docket of the court for the Lynch and Lee sought to take further proensuing year, and as a result of such reas- ceedings in the cause with a view to settling signment the cause in which the proceedings the issues therein preparatory to the final above set out had been had was assigned to and placed upon the calendar of William E. Dever, one of the judges of the superior court, who had been selected as one of the judges to hear chancery causes during the ensuing year. No further proceedings in said cause were had or sought before Judge Brentano after the indefinite postponement on April 19, 1912, until the latter part of December, 1912, excepting that shortly after the filing of the cross-bill by Lynch, and before the filing by Brownrigg of his plea thereto, the latter, through his solicitors, entered his motion to strike from the files the cross-bill, which motion was heard and denied by Judge Brentano.

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hearing thereof; that thereupon the solicitors for Redfield and Brownrigg suggested to Judge Dever that Judge Brentano, having heard a portion of the evidence relating to the issues presented under the petition filed by Lee, ought to proceed with the hearing and determination of the entire cause, or at least with the hearing and determination of the issues arising under the petition filed by Lee, and that Judge Dever thereupon referred to Judge Brentano for determination whether said cause, and all matters connected therewith, should be heard and finally determined by Judge Dever or by Judge Brentano; that shortly afterwards the solicitors for the respective parties appeared in the chambers of The petition for mandamus alleges that Judge Brentano, where the matter was disduring the latter part of December, 1912, the cussed, and that respondent, Judge Brentano, solicitors for Lee and Brownrigg appeared decided that the cause, and all matters conbefore Judge Brentano, and that one of Lee's nected therewith, should be heard and desolicitors then stated to Judge Brentano that termined by Judge Dever and that proceedhis clients felt they would not have a fairings in said cause could not be had or taken hearing before him and desired that he before respondent; that while it is true that should not further continue the hearing then on this occasion the solicitors for Lynch and pending, and at the same time suggested that Lee informed respondent that their clients Brownrigg might cause the evidence already felt they would not have a fair hearing betaken to be transcribed, and that the same fore respondent and that they desired that might be made into a certificate of evidence respondent should not further continue the and produced before another chancellor by hearing then pending, and that respondent Brownrigg, if he so desired, and that Lee's stated, in substance, that under the circumsolicitors also called to the attention of Judge stances, in view of the fact that some of the Brentano the fact that since the last hearing parties did not desire him to continue the the cause, through the shifting of judges to hearing, it was not agreeable for him to do sit as chancellors in the superior court, had so, and while it is true that respondent took been placed upon the calendar of a judge of into consideration the statement made by the superior court other than Judge Bren- the solicitors for Lynch and Lee in refusing tano. The petition further alleges that to continue with the hearing, yet respondent Brownrigg, by his solicitors, insisted that was satisfied that none of the parties could Judge Brentano continue and conclude the pending hearing upon Lee's petition, and objected to the pending hearing being transferred to another judge on the ground that it would cause an additional expense and loss of 'time and because the same situation and conditions in the introduction of evidence could never again be reproduced, but that Judge Brentano refused, and has ever since refused, to continue and conclude the taking of evidence and hearing and to decide and determine the issues joined in the matter of the said petition of Lee. The prayer of the petition for mandamus is that Judge Brentano be required to show cause why a writ should not be issued against him commanding him to proceed forthwith to continue the hearing and to determine the issues upon the petition filed by Lee in said cause and the answer of the relator thereto.

The answer of the respondent alleges that during the latter part of December, 1912, the solicitors for Lynch and Lee and the solicitors for Redfield and Brownrigg appeared in the superior court before Judge

be prejudiced by respondent's refusal to continue with such hearing, and was of the opinion that the hearing and determination of the issues could be had before Judge Dever with as much justice and fairness to all the parties, and with as much expedition, as before respondent; that from the evidence which had been introduced before him respondent was satisfied that the entire suit could be disposed of more expeditiously and with less expense and more justice to all the parties thereto if there should be but one final hearing of the cause, which should embrace not only the issues arising under the petition filed by Lee, but also the issues arising under all the pleadings in the cause; that on account of the lapse of time since the hearing before respondent it would probably be necessary, if the hearing were to proceed before him, to have the testimony transcribed, in order that he might read the same and refresh his recollection with respect thereto. The answer further alleges that since the third Monday of September, 1912, respondent has been engaged, in pur

shall make such designation, and may designate himself as one of such judges." When a new designation of judges to call the chancery docket has been made under this section of the statute, it must necessarily be the fact that some causes are left pending on the dockets of the old chancellors in various stages of completion. Doubtless in many instances causes have reached that stage in their consideration by the chancellor to whom they have been assigned, that it becomes necessary for him to proceed to a final determination of them despite the fact that he may have been assigned to duty in the criminal court or on the common-law side of the superior court. Some of the causes pending, however, must, of necessity, be transferred to the dockets of the newly assigned chancellors.

common-law side of the superior court, in | siding judge or chief justice of the court presiding over the trial of jury cases and is still so engaged, and will continue to be so engaged until the commencement of the summer vacation, in the latter part of July of the present year, excepting that he has for a short period been assigned to duty, and may hereafter be for short periods assigned to duty, in the criminal court of Cook county, and that if respondents were compelled to proceed with and conclude the hearing of said cause, or any portion thereof, it would seriously interfere with the disposition of the jury trials now upon respondent's calendar and would operate to delay the litigants whose cases are for trial upon such calendar; that respondent is informed and believes that Judge Dever is ready and willing to proceed with the hearing and determination of said cause as soon as the issues have been made, and that Brownrigg and all the other parties to the cause can obtain a final determination of the controversies arising in said cause with all convenient speed.

[1, 2] There can be no question of the right of this court, in a proper case, to issue a writ of mandamus to compel the judge of an inferior court to hear a cause pending in that court. The writ of mandamus, however, is awarded in the discretion of the court, and will only issue where the party applying for it shows a clear legal right to have the thing sought by it done. The writ will not be awarded in a doubtful case, but will issue only where the right of the relator is clear and undeniable and the party sought to be coerced is bound to act. People v. Hatch, 33 Ill. 9; People v. Kohlsaat, 168 Ill. 37, 48 N. E. 81; People v. Rose, 225 Ill. 496, 80 N. E. 293; People v. Busse, 248 Ill. 11, 93 N. E. 327.

[3] The superior court of Cook county at

The question to be determined here is whether the hearing on the Lee petition had reached such a stage that justice required that the matters therein involved should be finally determined by Judge Brentano. The hearing on the Lee petition was a preliminary matter to the hearing on the main case. When this controversy arose, the pleadings in the main case had not been settled, and the answer of the respondent discloses that service had not been had upon all the parties. After the indefinite continuance of April 19th, Brownrigg made no further attempt to have the hearings resumed or to speed the cause until the latter part of the following lature which was convened on April 24th adDecember. The special session of the Legisjourned sine die on the 5th day of June following. Although Brownrigg and his attorneys were bound to know that there was a possibility that Judge Brentano might not be

designated during the month of June to call

the chancery docket for the succeeding year, the present time is composed of 18 judges. no effort was made to complete the hearing In a court of this size, where a large volume before Judge Brentano after the adjournment of business is transacted, it becomes necesof the special session of the Legislature and sary that some system be adopted for a di- during the remainder of the period for which vision of the work among the various mem- he had been designated as a chancellor. Such bers of the court whereby the business may a period of time has elapsed since the testibe transacted expeditiously and without fric-mony was taken that Judge Brentano in his tion. Recognizing this necessity, our statute provides, under such circumstances, for the designation of certain judges to call the chancery docket of the court. This provision This provision is found in section 23 of the Practice Act (Hurd's Rev. St. 1911, c. 110), which is as follows: "In any court wherein five or more judges of the same court shall be holding separate branches thereof at the same time, for the trial of causes, such judges shall designate not less than two of their number to call the chancery docket of the court. Such designation shall be made in the month of June in each year and shall be for the period of one year. In default of action by the judges, during the month of June, or in case any judge so designated shall de

answer very naturally alleges that should he complete the hearing on this petition it will probably be necessary for him to require the testimony to be transcribed, in order to refresh his recollection and to enable him to arrive at a determination of the questions of fact involved. The petitioner, Lee, has expressed his willingness to have the testimony already taken transcribed and submitted to Judge Dever, to be considered by him in determining the issues raised upon the Lee petition and the answer thereto. This will afford the chancellor the same opportunity to arrive at a conclusion as if the petition and answer had been referred to a master in chancery to take the testimony in the first instance, as might have been done.

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