bill filed pleas setting up facts designed to the court entered a decree February

5, 1900,

from their rendition were not issued for the and was subject to the lien of the trust deed. purpose of collecting the judgments, but the Complainant and her husband filed an ansheriff was directed to hold them until the swer, admitting the execution of the notes return day and not levy them. The bill al- and trust deed, but denying every other alleleged that, the executions not having been is- gation of the bill. The judgment creditors sued for the purpose of executing them and filed separate answers, setting up the recovcollecting the judgments, the liens created by ery of their judgments, and asking that any the judgments expired at the end of the year. surplus arising from the sale of the premises During the pendency of this suit a sheriff's should be applied toward the payment of the deed was executed in pursuance of the sale, same. The cause was referred to a master and a supplemental bill was then filed, mak- in chancery. who took the evidence and filed ing the rest of the appellees, the grantees his report, finding in favor of the complainant, therein, defendants, and asking the court to and that the judgment creditors had concurenjoin them from conveying the real estate rent liens on the real estate subject to the or interfering with appellant's possession of it, lien of the trust deed, and that they were enand praying for general relief. Some of the titled to be paid pro rata the amount found defendants answered the bill, but two of the due them out of the proceeds of any sale defendants brought in by the supplemental next after paying complainant and the costs.

, ,

finding the had been adjudicated in two foreclosure suits. and the amounts due on the judgments, and Three other defendants filed a joint and sey- finding that they were concurrent liens on the eral plea, asking the benefit of the matter set premises subject to the lien of the trust deed. up in the other pleas, without setting out the The court thereupon decreed that the premfacts. The pleas were set down for argu- ises should be sold by the master in chancery; ment, and the circuit court held them good, that after the payment of costs he should and thereupon dismissed the bill for want of pay the complainant the amount found due equity, at complainant's cost. The pleas hav- him, with interest; that if there should be ing been set down for argument, the truth of any deficiency he should report the amount, their allegations was admitted (Snow and if there should be any surplus he should Counselman, 136 Ill. 191, 26 N. E. 590), and hold it subject to the order of the court. The the question to be decided was whether such second plea was a plea puis darrein continufacts constituted an adjudication of the valid- ance, filed April 28, 1904, setting forth a deity of the judgment liens, so that the question cree entered April 25, 1904, in a foreclosure whether they were valid liens on the real es- suit brought by William G. Krutz, Jr., to. tate involved in this suit could not again foreclose a trust deed executed by said John be litigated between the parties. That is the J. Gouwens and wife upon other lands not only question considered here. The complain- involved in this suit in any way. John J. ant was one of the defendants in each of the Gouwens and complainant and the judgment foreclosure suits, but her husband was then creditors were defendants in that suit, and the owner of the property. She afterward in the decree the court found the amount due succeeded to the estate or title held by him the complainant, Krutz, on his trust deed, and and was privy to the decrees entered in those found that the judgment creditors recovered suits. O'Connell v. Chicago Terminal Trans- their judgments and that executions were fer Co., 184 Ill. 308, 56 N. E. 355. If the va- issued thereon. The decree directed the maslidity of the liens as to this property was con- ter in chancery, in default of payment of the clusively settled and adjudicated between her amount due on the trust deed, to sell the husband and the judgment creditors, she also premises, and if there should be a deficiency would be bound by the adjudication.

he should report the same, and if there should The facts alleged in the first plea were, in be a surplus he was ordered to bring it into substance, as follows: Prior to the rendi- court to abide the further order of the court. tion of either of the judgments, John J. The finding in that case was merely that the Gouwens and his wife, the complainant, ex- judgment creditors had judgments which ecuted a trust deed conveying a part of the were liens on the property subject to the lots to secure a principal note for $500 and in- trust deed, none of which is included in this terest notes. Rokus P. Van Drunen, one of suit. the defendants in this case, having become The single fact alleged in the bill in this the owner of the notes secured, filed his bill case as ground for relief was that the execuin 1899 to foreclose the trust deed, and com- tions were delivered to the sheriff, with plainant and her husband, and the judgment directions not to levy them, but to merely creditors, Rollin A. Gouwens and Anton hold them until the return day, and the claim Steinbach, were defendants. The allegation was that such action had the same effect of the bill as to Rollin A. Gouwens and Anton as though the executions were not issued. Steinbach was that they had or claimed to The defense set up by the pleas was that the hove some interest in the real estate, or some fact that the judgments were valid and part thereof, as purchaser, mortgagee, judgsubsisting liens on the real estate at the time

. ment creditor, or otherwise, which interest, of complainant's purchase had been concluIf any there was, had been acquired since, sively determined and adjudicated in the two

other, and in each it was ordered that the Van Drunen foreclosure is concerned, it is

foreclosure suits. The facts alleged were in favor of either party against the other. that the complainant and her husband and Conwell v. Thompson, 50 Ill. 329. If there the judgment creditors were codefendants in had been a surplus, there would have been those suits, and that the court, in each of adverse interests between the judgment creditthose suits, found that the liens were valid. ors claiming liens and the mortgagor, and the The complainants in those suits sought fore- decision of that question by the court would closure of their mortgages, and the judgment have been an adjudication of such adverse creditors were proper parties defendant for interests. Manifestly, when the judgment the purpose of foreclosing their right of creditors answered in the foreclosure suit redemption. The bill of Van Drunen alleg. that they had liens, neither the complainant ed that they had or claimed some right, title, nor her husband could have filed a crossor interest in the premises which was sub- bill or entered into litigation with their coject to the lien of the trust deed. By their defendants as to the existence of their liens. answers they did not dispute that averment, The complainants would have no interest in and there was no issue formed beween them that controversy, and the court would not and the complainant. As between the com- listen to it, when it could not be known that plainant and defendants it was not neces- there would be any surplus to which the sary to determine the question whether the alleged liens would be transferred after the judgments were valid and subsisting liens sale. In the Van Drunen foreclosure the upon the property or not, and any finding property sold for exactly the amount of the as to the existence or the priority of liens trust deed and costs, and in the Krutz foreor titles as between the defendants was closure there had been no sale to ascertain wholly unnecessary to the relief asked for whether there would be any surplus to be the or granted. The decree in the Krutz case subject of litigation between the complainwas precisely of the same kind as in the ant and judgment creditors. So far as the ,

, master in chancery should sell the property not disputed that when the bill and answers and report to the court if there was a de- were filed the judgments were liens; but, ficiency or surplus, and in case of a sur- whether they were or not, we do not underplus should hold it subject to the order of stand that there could be a final adjudication the court. If there should be a deficiency, on the merits as between the defendants in there might then be a decree for such defici- either case until there should be a surplus ency against the party personally liable for disposed of by the order of the court. the debt secured, in favor of the complain- It follows that the pleas do not set fortl ant in the suit. If the property should sell facts constituting a final adjudication that for the amount of the debt and costs, there the judgments were valid and subsisting would be no further subject for litigation; liens upon the lands in question, and that but, if there should be a surplus for distribu- the court erred in holding them to be good tion, the court would then be called upon to and dismissing the bill. The complainanı determine to whom it should be paid.

asked leave to amend her bill so as to show It has very frequently been held that it that she had redeemed from the sale under is not necessary for a defendant having a the Van Drunen foreclosure, but the court relien to file a cross-bill, but his rights may fused her motion. Upon the reinstatement be determined under his answer. If the an- of the case in the circuit court she will be swers of the various parties claim liens, the permitted to amend her bill as she may decourt has power, without the filing of a

sire. cross-bill, to determine the existence and The decree is reversed, and the cause repriority of the various liens and to distribute | manded. any surplus in discharge of such liens accord

Reversed and remanded. ing to their priɔrity. Gardner v. Cohn, 191 Ill. 553, 61 N. E. 492. It is undoubtedly proper for persons claiming liens who are

(222 Ill. 206) made defendants to a foreclosure suit to set

LIBBY, MCNEILL & LIBBY v. COOK. up their claims by their answers and to make proof of the facts upon which they claim (Supreme Court of Illinois. June 14, 1906. the liens; but, unless there is a surplus after Rehearing Denied October 10, 1906.) satisfying the mortgage debt, there is noth

1. TRIAL-DIRECTION OF VERDICT-WHEN AUing to litigate as between codefendants who

THORIZED. claim nothing except a right to participate A verdict for defendant should not be in such surplus. The only parties conclud- directed, either at the close of plaintiff's case, ed by a decree are adversary parties, and the

or at the close of all the evidence, where there

is evidence fairly tending to prove the material matter determined must be in issue between

averments of the declaration, but a mere scinthem. Parties on the same side of a fore

tilla of evidence in favor of plaintiff does not closure suit are not concluded, as against justify the court in refusing to direct a verdict each other, if no issue between them was

because that quantum of evidence, only, does

not fairly tend to prove any material averpresented and adjudicated. Where nothing

ment of the declaration. has been litigated as between codefendants

[Ed. Note.—For cases in point, see vol. 46, in a chancery suit, the decree is not evidence Cent. Dig. Trial, $$ 338-343.]

2. APPEAL-VERDICT - JUDGMENT OF APPEL- ion on the end of the piston-rod. The strap LATE COURT-CONCLUSIVENESS.

in this way joins the connecting-rod, which The Supreme Court, on appeal from a

drives the large wheel, with the piston-rod, judgment of the Appellate Court, will not determine where the preponderance of the evi- which works rigidly back and forth. The dence lies.

sides of the strap are held firmly to the con[Ed. Note.For cases in point, see vol. 3, necting-rod by a gib and a key inserted in

a Cent. Dig. Appeal and Error, 88 4322-4352.]

slots made in the strap and rod. The strap 3. MASTER AND SERVANT-INJURY TO SERVANT

in about 134 inches through at the center of -NEGLIGENCE-QUESTION FOR JURY. Evidence, in an action for injuries to an

the curve or throat, about 1 inch through at employé, examined, and held to warrant a find- the conjunction of the sides with the begining that the employer was negligent in failing ning of the curve, where the fracture occurto inspect and remedy defects in the machinery causing the injuries complained of.

red, while it is about 3 inches wide, and the 4. SAME-NOTICE OF DEFECT IN APPLIANCES.

sides are about 934 inches in length, forming Where an employer had actual notice of

a substantial and solid piece of metal. Such a condition which should have led him to make a strap is made from a solid forged piece of an investigation of an appliance, it must be steel or iron by drilling and slotting out the deemed to have had notice of every defect there

center. It is then filed out and planed off on in which an inspection would have revealed. [Ed. Note.--For cases in point, see vol. 34,

the inside, and so finished that it fits the rod Cent. Dig. Master and Servant, &$ 243–251.] so tightly that it has to be driven on with 5. SAME-ASSUMPTION OF RISK.

a soft hammer. After the accident it was An employé called the foreman's attention found that the throat or curved part of the to a defect in a machine. The defect was not strap had broken completely off from the two remedied, and he continued in the work. The extent of the danger could not be ascertained

parallel sides; the fracture occurring at both from looking at the machine, but only by taking

sides at a point where the curve thickened, it apart and examining it. The employé had leaving the two sides of the strap still atno knowledge of the danger of the defect. tached to the connecting-rod with the gib and Held, that he did not assume the risk of injury arising from the defect.

key in place. Prior to the day appellee was [Ed. Note. For cases in point, see vol. 34,

injured a slight opening had been observed Cent. Dig. Master and Servant, $$ 574-600.]

between the rod and the end of the strap on

top of the rod. The following drawing, repAppeal from Appellate Court, First District. Action by Peter B. Cook against Libby,

resenting the piece of machinery under discusMcNeill & Libby. From a judgment of the

sion, will perhaps aid in arriving at a corAppellate Court, affirming a judgment for

rect understanding of the manner in which

the accident occurred: plaintiff, defendant appeals. Affirmed.

. This is an appeal from a judgment of the Branch Appellate Court for the First District, affirming a judgment of the superior court of Cook county for the sum of $6,000, in a suit brought by appellee, a servant, to recover from appellant, his master, for personal injuries. The following statement of facts is, in large part, that of the Branch Appellate Court:

The injuries complained of were inflicted by the cylinder-head of an engine which gave

Sonoa way or bursted, a piece of it striking appellee, causing a compound fracture of the left leg between the thigh and knee joint. The accident was apparently caused by the breaking of an appliance called a "strap,” used to connect the piston-rod of the engine with the connecting-rod. The latter was attached to a crank on a large drive-wheel carrying the main belt by which the power was transmitted to the machinery by the engine operator. The breaking of the strap took off resistance from the piston-rod, allowing the latter to be thrown back against the cylinder-head, causing it to burst. The strap, the breaking of which seems to have been the primary cause of the accident, is a solid piece of metal having parallel sides connected by a semi- The plaintiff was employed as an oiler in circular end. Its shape is like that of the the engine room. At the moment of the letter U, with the parallel sides somewhat bursting of the cylinder-head he was passing prolonged. The curved part, referred to as in such close proximity as to receive the inthe "throat,” is so placed as to play around jury complained of. The declaration contains the boxing or brasses which encircle the pin- a single count, and charges that appellant

negligently permitted the strap, the breaking if the evidence "tended to prove the allegaof which caused appellee's injury, to become tions of the declaration” (Boyce v. Tallerman, and remain in a defective, improper, and un- 183 Ill. 115, 55 N. E. 703); "where there is safe condition, in that it was broken, weak- evidence tending to show the plaintiff's right ened, and otherwise defective and liable to to recover" (Landgraf v. Kuh, 188 Ill. 484, break, and that appellant knew, or by the 59 N. E. 501); where there is "any evidence exercise of ordinary care might have known, in the record fairly tending to support the this in time to avoid the injury. The defend- plaintiff's cause of action" (Chicago City Rail. ant interposed the general issue.

way Co. v. Martensen, 198 Ill. 511, 64 N. E.

1017; Illinois Terminal Railroad Co. v. MitF. J. Canty, J. C. M. Clow, and E. E. Gray,

chell, 214 Ill. 151, 73 N. E. 449); where "there for appellant. James C. McShane, for ap

was evidence tending to sustain the cause of pellee.

action as set up in the declaration" (Consoli

dated Coal Co. v. Fleischbein, 207 Ill. 593, 69 SCOTT, C. J. (after stating the facts). At N. E. 903); where "there was evidence fairly the close of all the evidence the defendant tending to prove a cause of action against moved the court to instruct the jury to find the defendant" (Rowe v. Taylorville Electric a verdict of not guilty. This motion was not Co., 213 Ill. 318, 72 N. E. 711); where there sustained, and its denial is assigned as er- was any evidence "which, with all its reasonror. The question thus presented has been able inferences and intendments, fairly tendstated by this court in varying language. It ed to prove the plaintiff's case” (Chicago has been said that such a motion should be

City Railway Co. v. Lannon, 212 Ill. 477, 72 allowed “where the evidence, with all the N. E. 585); where “there is evidence in the legitimate and natural inferences to be drawn record fairly tending to prove the allegatherefrom, is wholly insufficient, if credited, tions of the

,

tions of the declaration” (Chicago City to sustain a verdict for the plaintiff” (Lake Railway Co. v. Gemmill, 209 Ill. 638, 71 N. Shore & Michigan Southern Railway Co. v. E. 43; Pittsburg, Cincinnati, Chicago and St. Richards, 152 Ill. 59, 38 N. E. 773, 30 L. R. A. Louis Railway Co. v. Banfill, 206 Ill. 553, 69 33); or where the evidence, "with all the in- N. E. 499); where "the evidence introduced on ferences which the jury might justifiably behalf of the plaintiff, when taken to be true, draw therefrom, is not sufficient to support a together with all legitimate inferences which verdict for the plaintiff, if one should be re- may be drawn therefrom in favor of the plainturned” (Foster v. Wadsworth-Howland Co., tiff, tends to support the cause of action 168 Ill. 514, 48 N. E. 163; Foster v. McKeown, set out in his declaration” (Hewes v. Chi192 Ill. 339, 61 N. E. 514); and it has been cago and Eastern Illinois Railroad Co., 217 said that such a motion presents the question Ill. 500, 75 N. E. 515) ; or where “the evidence in this court whether there was evidence

produced before the jury, with all the infer"fairly tending to support the verdict" (Chi

ences proper to be drawn therefrom, fairly cago Terminal Railroad Co. v. Kotoski, 199 tended to prove the cause of action set out in Ill. 383, 65 N. E. 350; Chicago & Alton Rail- the declaration.” Union Bridge Co. v. Teeway Co. v. Walker, 217 Ill. 605, 75 N. E. 520); han, 190 Ill. 374, 60 N. E. 533. Each of the "whether there was evidence tending to sup- quoted expressions bears precisely the same port the verdict” (Consolidated Fireworks Co.

meaning, in so far as a rule is laid down for v. Koehl, 206 Ill. 283, 68 N. E. 1077); wheth- determining whether a peremptory instruction er “the evidence for the plaintiff below, with sbould be given. The differing language used the reasonable inferences to be drawn there- in the various cases results from the fact that from, is sufficient to warrant a verdict for the court has not seen fit to state the rule the plaintiff” (Chicago & Alton Railroad Co.

in precisely the same terms on every occasion, v. Wise, 206 Ill. 453, 69 N. E. 500); whether and does not indicate that the view of the “the evidence sustaining the cause of the court has changed at any time. plaintiff below, with the reasonable inferences There are certain cases in which it is to be drawn therefrom, is sufficient to war- intimated that one rule should be applied rant a verdict for the plaintiff” (Nicker- to a motion of this character when it is made bocker Ice Co. v. Benedix, 206 Ill. 362, 69 at the close of the plaintiff's evidence, and N. E. 50; Illinois Central Railroad Co. v. another when it is made at the close of all Swift, 213 Ill. 307, 72 N. E. 737); and whether the evidence. Among these cases are Pullthere is "in this record any evidence which, man Palace Car Co. v. Laack, 143 Ill. 242, with the inferences that the jury may jus- 32 N. E. 285, 18 L. R. A. 215; Foster V. tifiably draw therefrom, is sufficient to sup- Wadsworth-Howland Co., supra; Landigraf v. port a verdict for plaintiff” (Chicago City Kuh, supra; and Foster v. McKeown, supra. Railway Co. v. Bennett, 214 Ill. 26, 73 N. E. We think a careful consideration of these au343). A peremptory instruction for defend- thorities, and others cited above, leads to ant should not be given, "except where there the conclusion that there is but one rule to is a substantial failure of evidence tending to be applied to such motions, whether the moprove the plaintiff's cause of action or to tion is made at the close of the plaintiff's prove some material fact necessary to es- evidence, or at the close of all the evidence. tablish it” (Chicago & Northwestern Railway Chicago City Railway Co. v. Martensen, suCo. v. Dunleavy, 129 Ill. 132, 22 N. E. 15); pra. In either case, if there is no evidence, or but a scintilla of evidence, tending to should not be directed, where there is in prove the material averments of the declara- the record evidence which fairly tends to tion, the jury should be directed to return prove all the material averments of the a verdict for the defendant. If, however, declaration. A mere scintilla of evidence in there is in the record any evidence from favor of the plaintiff does not justify the which, if it stood alone, the jury could, court in refusing to direct a verdict, because “without acting unreasonably in the eye of that quantum of evidence, only, cannot be the law," find that all the material averments said to fairly tend to prove any material of the declaration had been proven, then the averment of the declaration. cause should be submitted to the jury. Fraz- In the case at bar the greater part of the er v. Howe, 106 Ill. 563; Simmons v. Chi

argument of both parties has been devoted to cago & Tomah Railroad Co., 110 Ill. 340; determining where the preponderance of the Bartelott v. International Bank, 119 Ill. 259, evidence lies. Appellant contends that the 9 N. E. 898; Offutt v. Columbian Exposition, plaintiff, who testified in his own behalf, was 175 Ill. 472, 51 N. E. 651. Such evidence so flatly contradicted on a material point last mentioned fairly tends to prove all the by a number of credible witnesses that his material averments of the declaration, and evidence in reference to that matter should such evidence, standing alone, is sufficient be entirely rejected. This contention was to sustain, warrant, or support a verdict of proper in the Appellate Court, but it has favor of the plaintiff, even though it may be no place here. Evidence appears from the that a verdict for the plaintiff, if returned, abstract to the effect that a day or two would have to be set aside on a motion for a prior to the accident the attention of the new trial because against the manifest pre- appellant's foreman was called by appellee ponderance of all the evidence. In passing to the fact that there was an opening beupon a motion for a peremptory instruction tween the strap and the rod, whereas, they the question of the preponderance of the evi- should fit snugly together ; and there is dence does not arise at all. Evidence fairly proof that this opening indicated that the tending to prove the cause of action set out strap was “sprung" or bent. There is also in the declaration may be the testimony of evidence that on this occasion appellee asked 1 witness only, and he may be directly con- the foreman if the strap was not sprung, and tradicted by 20 witnesses of equal or greater if it would not be safer if a bolt was put credibility; still the motion must be denied, through the strap and rod to hold them toand, if a verdict for the plaintiff follows, gether, and that the foreman replied that the question whether it is manifestly against the people who constructed the engine knew the weight of the evidence is for the trial better than appellee and the foreman how court upon motion for a new trial, and, in it should be built, and that the strap or rod the event of that motion being overruled and was worn, but “that it was all right.” Apa judgment entered, for the Appellate Court pellee testifies that this opening was an upon error properly assigned.

eighth of an inch in width at the end of the When a motion for a peremptory instruc- strap on top of the rod, and extended back tion is made by the defendant, if the court toward the throat of the strap about six is of the opinion that in case a verdict is inches, gradually growing less as it went returned for the plaintiff it must be set aside backward. There is also proof that, after for want of any evidence in the record to the accident, inspection of one break indicatsustain it, a verdict should be directed. If ed that the strap was partly broken through the court is of the opinion that there is from the inside prior to the time of the acevidence in the record which, standing alone, cident. When the foreman's attention was is sufficient to sustain such a verdict, but called to the matter he made no investigathat such a verdict, if returned, must be set tion beyond looking at the opening. The aside because against the manifest weight evidence tended to show a state of facts the of all the evidence, then the motion should existence of which required appellant, in be denied. Simmons V. Chicago & Tomah the exercise of reasonable care for the safety Railroad Co., supra; Bartelott v. Interna- of its employés, to have the strap removed tional Bank, supra; Offutt v. Columbian Ex- and inspected on the inside at the time the position, supra. To hold otherwise is to deny foreman's attention was called to the opento plaintiff the right of trial by jury. There ing. The jury might reasonably conclude

. may be in a record evidence which, standing that, had this course been pursued, the acalone, tends to prove all the material aver- cident would have been prevented. ments of the declaration, and which is there- Appellant must be deemed to have had fore sufficient to support, warrant, or sus- notice of every defect in the strap which an tain a verdict in favor of plaintiff, and yet, inspection would have revealed, as it had acupon the whole record, the evidence may so tual notice of a condition which should have preponderate against the plaintiff that a led it to make a careful and searching inverdict in his favor cannot stand when test- vestigation of the mechanism in question. ed by a motion for a new trial. Where, as It is said, however, that as appellee called here, there is no affirmative defense, the the attention of the foreman to the opening, rule applicable may be clearly expressed in and as the defect was not remedied, and these words: A verdict for the defendant appellee continued in the employ, he assumed