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from their rendition were not issued for the purpose of collecting the judgments, but the sheriff was directed to hold them until the return day and not levy them. The bill alleged that, the executions not having been issued for the purpose of executing them and collecting the judgments, the liens created by the judgments expired at the end of the year. During the pendency of this suit a sheriff's deed was executed in pursuance of the sale, and a supplemental bill was then filed, making the rest of the appellees, the grantees therein, defendants, and asking the court to enjoin them from conveying the real estate or interfering with appellant's possession of it, and praying for general relief. Some of the defendants answered the bill, but two of the defendants brought in by the supplemental bill filed pleas setting up facts designed to show that the validity of the judgment liens had been adjudicated in two foreclosure suits. Three other defendants filed a joint and several plea, asking the benefit of the matter set up in the other pleas, without setting out the facts. The pleas were set down for argument, and the circuit court held them good, and thereupon dismissed the bill for want of equity, at complainant's cost. The pleas having been set down for argument, the truth of their allegations was admitted (Snow v. Counselman, 136 Ill. 191, 26 N. E. 590), and the question to be decided was whether such facts constituted an adjudication of the validity of the judgment liens, so that the question whether they were valid liens on the real estate involved in this suit could not again be litigated between the parties. That is the only question considered here. The complainant was one of the defendants in each of the foreclosure suits, but her husband was then the owner of the property. She afterward succeeded to the estate or title held by him and was privy to the decrees entered in those suits. O'Connell v. Chicago Terminal Transfer Co., 184 Ill. 308, 56 N. E. 355. If the validity of the liens as to this property was conclusively settled and adjudicated between her husband and the judgment creditors, she also would be bound by the adjudication.
The facts alleged in the first plea were, in substance, as follows: Prior to the rendition of either of the judgments, John J. Gouwens and his wife, the complainant, executed a trust deed conveying a part of the lots to secure a principal note for $500 and interest notes. Rokus P. Van Drunen, one of the defendants in this case, having become the owner of the notes secured, filed his bill in 1899 to foreclose the trust deed, and complainant and her husband, and the judgment creditors, Rollin A. Gouwens and Anton Steinbach, were defendants. The allegation of the bill as to Rollin A. Gouwens and Anton Steinbach was that they had or claimed to hove some interest in the real estate, or some part thereof, as purchaser, mortgagee, judgment creditor, or otherwise, which interest, if any there was, had been acquired since,
and was subject to the lien of the trust deed. Complainant and her husband filed an answer, admitting the execution of the notes and trust deed, but denying every other allegation of the bill. The judgment creditors filed separate answers, setting up the recovery of their judgments, and asking that any surplus arising from the sale of the premises should be applied toward the payment of the same. The cause was referred to a master in chancery. who took the evidence and filed his report, finding in favor of the complainant, and that the judgment creditors had concurrent liens on the real estate subject to the lien of the trust deed, and that they were entit titled to be paid pro rata the amount found due them out of the proceeds of any sale next after paying complainant and the costs. The court entered a decree February 5, 1900, finding the amount due upon the trust deed and the amounts due on the judgments, and finding that they were concurrent liens on the premises subject to the lien of the trust deed. The court thereupon decreed that the premises should be sold by the master in chancery; that after the payment of costs he should pay the complainant the amount found due him, with interest; that if there should be any deficiency he should report the amount, and if there should be any surplus he should hold it subject to the order of the court. The second plea was a plea puis darrein continuance, filed April 28, 1904, setting forth a decree entered April 25, 1904, in a foreclosure suit brought by William G. Krutz, Jr., to foreclose a trust deed executed by said John J. Gouwens and wife upon other lands not involved in this suit in any way. John J. Gouwens and complainant and the judgment creditors were defendants in that suit, and in the decree the court found the amount due the complainant, Krutz, on his trust deed, and found that the judgment creditors recovered their judgments and that executions were issued thereon. The decree directed the master in chancery, in default of payment of the amount due on the trust deed, to sell the premises, and if there should be a deficiency he should report the same, and if there should be a surplus he was ordered to bring it into court to abide the further order of the court. The finding in that case was merely that the judgment creditors had judgments which were liens on the property subject to the trust deed, none of which is included in this suit.
The single fact alleged in the bill in this. case as ground for relief was that the executions were delivered to the sheriff, with directions not to levy them, but to merely hold them until the return day, and the claim was that such action had the same effect as though the executions were not issued. The defense set up by the pleas was that the fact that the judgments were valid and subsisting liens on the real estate at the time of complainant's purchase had been conclusively determined and adjudicated in the two
foreclosure suits. The facts alleged were that the complainant and her husband and the judgment creditors were codefendants in those suits, and that the court, in each of those suits, found that the liens were valid. The complainants in those suits sought foreclosure of their mortgages, and the judgment creditors were proper parties defendant for the purpose of foreclosing their right of redemption. The bill of Van Drunen alleged that they had or claimed some right, title, or interest in the premises which was subject to the lien of the trust deed. By their answers they did not dispute that averment, and there was no issue formed beween them and the complainant. As between the complainant and defendants it was not necessary to determine the question whether the judgments were valid and subsisting liens upon the property or not, and any finding as to the existence or the priority of liens or titles as between the defendants was wholly unnecessary to the relief asked for or granted. The decree in the Krutz case was precisely of the same kind as in the other, and in each it was ordered that the master in chancery should sell the property and report to the court if there was a deficiency or surplus, and in case of a surplus should hold it subject to the order of the court. If there should be a deficiency, there might then be a decree for such deficiency against the party personally liable for the debt secured, in favor of the complainant in the suit. If the property should sell for the amount of the debt and costs, there would be no further subject for litigation; but, if there should be a surplus for distribution, the court would then be called upon to determine to whom it should be paid.
It has very frequently been held that it is not necessary for a defendant having a lien to file a cross-bill, but his rights may be determined under his answer. If the answers of the various parties claim liens, the court has power, without the filing of a cross-bill, to determine the existence and priority of the various liens and to distribute any surplus in discharge of such liens according to their priority. Gardner v. Cohn, 191 Ill. 553, 61 N. E. 492. It is undoubtedly proper for persons claiming liens who are made defendants to a foreclosure suit to set up their claims by their answers and to make proof of the facts upon which they claim the liens; but, unless there is a surplus after satisfying the mortgage debt, there is noth ing to litigate as between codefendants who claim nothing except a right to participate in such surplus. The only parties concluded by a decree are adversary parties, and the matter determined must be in issue between them. Parties on the same side of a foreclosure suit are not concluded, as against each other, if no issue between them was presented and adjudicated. Where nothing has been litigated as between codefendants in a chancery suit, the decree is not evidence
in favor of either party against the other. Conwell v. Thompson, 50 Ill. 329. If there had been a surplus, there would have been adverse interests between the judgment creditors claiming liens and the mortgagor, and the decision of that question by the court would have been an adjudication of such adverse interests. Manifestly, when the judgment creditors answered in the foreclosure suit that they had liens, neither the complainant nor her husband could have filed a crossbill or entered into litigation with their codefendants as to the existence of their liens. The complainants would have no interest in that controversy, and the court would not listen to it, when it could not be known that there would be any surplus to which the alleged liens would be transferred after the sale. In the Van Drunen foreclosure the property sold for exactly the amount of the trust deed and costs, and in the Krutz foreclosure there had been no sale to ascertain whether there would be any surplus to be the subject of litigation between the complainant and judgment creditors. So far as the Van Drunen foreclosure is concerned, it is not disputed that when the bill and answers were filed the judgments were liens; but, whether they were or not, we do not understand that there could be a final adjudication on the merits as between the defendants in either case until there should be a surplus disposed of by the order of the court.
It follows that the pleas do not set fortl facts constituting a final adjudication that the judgments were valid and subsisting liens upon the lands in question, and that the court erred in holding them to be good and dismissing the bill. The complainan. asked leave to amend her bill so as to show that she had redeemed from the sale under the Van Drunen foreclosure, but the court refused her motion. Upon the reinstatement of the case in the circuit court she will be permitted to amend her bill as she may desire.
The decree is reversed, and the cause remanded.
Reversed and remanded.
(222 I11. 206)
LIBBY, MCNEILL & LIBBY v. COOK. (Supreme Court of Illinois. June 14, 1906. Rehearing Denied October 10, 1906.)
1. TRIAL-DIRECTION OF VERDICT-WHEN AU
A verdict for defendant should not be directed, either at the close of plaintiff's case, or at the close of all the evidence, where there is evidence fairly tending to prove the material averments of the declaration, but a mere scintilla of evidence in favor of plaintiff does not justify the court in refusing to direct a verdict because that quantum of evidence, only, does not fairly tend to prove any material averment of the declaration.
[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 338-343.]
2. APPEAL-VERDICT-JUDGMENT OF APPELLATE COURT-CONCLUSIVENESS.
The Supreme Court, on appeal from a judgment of the Appellate Court, will not determine where the preponderance of the evidence lies.
[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4322-4352.] 3. MASTER AND SERVANT-INJURY TO SERVANT -NEGLIGENCE-QUESTION FOR JURY.
Evidence, in an action for injuries to an employé, examined, and held to warrant a finding that the employer was negligent in failing to inspect and remedy defects in the machinery causing the injuries complained of.
4. SAME-NOTICE OF DEFECT IN APPLIANCES.
Where an employer had actual notice of a condition which should have led him to make an investigation of an appliance, it must be deemed to have had notice of every defect therein which an inspection would have revealed.
[Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 243-251.] 5. SAME ASSUMPTION OF RISK.
An employé called the foreman's attention to a defect in a machine. The defect was not remedied, and he continued in the work. The extent of the danger could not be ascertained from looking at the machine, but only by taking it apart and examining it. The employé had no knowledge of the danger of the defect. Held, that he did not assume the risk of injury arising from the defect.
[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 574-600.] Appeal from Appellate Court, First District. Action by Peter B. Cook against Libby, McNeill & Libby. From a judgment of the Appellate Court, affirming a judgment for 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 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 semicircular end. Its shape is like that of the letter U, with the parallel sides somewhat prolonged. The curved part, referred to as the "throat," is so placed as to play around the boxing or brasses which encircle the pin
ion on the end of the piston-rod. in this way joins the connecting-rod, which drives the large wheel, with the piston-rod, which works rigidly back and forth. The sides of the strap are held firmly to the connecting-rod by a gib and a key inserted in slots made in the strap and rod. The strap in about 14 inches through at the center of the curve or throat, about 1 inch through at the conjunction of the sides with the beginning of the curve, where the fracture occurred, while it is about 3 inches wide, and the sides are about 94 inches in length, forming a substantial and solid piece of metal. Such a strap is made from a solid forged piece of steel or iron by drilling and slotting out the center. It is then filed out and planed off on the inside, and so finished that it fits the rod so tightly that it has to be driven on with a soft hammer. After the accident it was found that the throat or curved part of the strap had broken completely off from the two parallel sides; the fracture occurring at both sides at a point where the curve thickened, leaving the two sides of the strap still attached to the connecting-rod with the gib and key in place. Prior to the day appellee was injured a slight opening had been observed between the rod and the end of the strap on top of the rod. The following drawing, representing the piece of machinery under discussion, will perhaps aid in arriving at a correct understanding of the manner in which the accident occurred:
negligently permitted the strap, the breaking of which caused appellee's injury, to become and remain in a defective, improper, and unsafe condition, in that it was broken, weak
if the evidence "tended to prove the allegations of the declaration" (Boyce v. Tallerman, 183 Ill. 115, 55 N. E. 703); "where there is 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 exercise of ordinary care might have known, this in time to avoid the injury. The defendant interposed the general issue.
F. J. Canty, J. C. M. Clow, and E. E. Gray, for appellant. James C. McShane, for appellee.
SCOTT, C. J. (after stating the facts). At the close of all the evidence the defendant moved the court to instruct the jury to find a verdict of not guilty. This motion was not sustained, and its denial is assigned as error. The question thus presented has been stated by this court in varying language. It has been said that such a motion should be allowed "where the evidence, with all the legitimate and natural inferences to be drawn therefrom, is wholly insufficient, if credited, to sustain a verdict for the plaintiff" (Lake Shore & Michigan Southern Railway Co. v. Richards, 152 Ill. 59, 38 N. E. 773, 30 L. R. A. 33); or where the evidence, "with all the inferences which the jury might justifiably draw therefrom, is not sufficient to support a verdict for the plaintiff, if one should be returned" (Foster v. Wadsworth-Howland Co., 168 Ill. 514, 48 N. E. 163; Foster v. McKeown, 192 III. 339, 61 N. E. 514); and it has been said that such a motion presents the question in this court whether there was evidence "fairly tending to support the verdict" (Chicago Terminal Railroad Co. v. Kotoski, 199 Ill. 383, 65 N. E. 350; Chicago & Alton Railway Co. v. Walker, 217 Ill. 605, 75 N. E. 520); "whether there was evidence tending to support the verdict" (Consolidated Fireworks Co. v. Koehl, 206 Ill. 283, 68 N. E. 1077); whether "the evidence for the plaintiff below, with the reasonable inferences to be drawn therefrom, is sufficient to warrant a verdict for the plaintiff" (Chicago & Alton Railroad Co. v. Wise, 206 Ill. 453, 69 N. E. 500); whether "the evidence sustaining the cause of the plaintiff below, with the reasonable inferences to be drawn therefrom, is sufficient to warrant a verdict for the plaintiff" (Nickerbocker Ice Co. v. Benedix, 206 Ill. 362, 69 N. E. 50; Illinois Central Railroad Co. v. Swift, 213 Ill. 307, 72 N. E. 737); and whether there is "in this record any evidence which, with the inferences that the jury may justifiably draw therefrom, is sufficient to support a verdict for plaintiff" (Chicago City Railway Co. v. Bennett, 214 Ill. 26, 73 N. E. 343). A peremptory instruction for defendant should not be given, "except where there is a substantial failure of evidence tending to prove the plaintiff's cause of action or to prove some material fact necessary to establish it" (Chicago & Northwestern Railway Co. v. Dunleavy, 129 Ill. 132, 22 N. E. 15);
59 N. E. 501); where there is "any evidence in the record fairly tending to support the plaintiff's cause of action" (Chicago City Railway Co. v. Martensen, 198 Ill. 511, 64 N. E. 1017; Illinois Terminal Railroad Co. v. Mitchell, 214 Ill. 151, 73 N. E. 449); where "there was evidence tending to sustain the cause of action as set up in the declaration" (Consolidated Coal Co. v. Fleischbein, 207 Ill. 593, 69 N. E. 963); where "there was evidence fairly tending to prove a cause of action against the defendant" (Rowe v. Taylorville Electric Co., 213 Ill. 318, 72 N. E. 711); where there was any evidence "which, with all its reasonable inferences and intendments, fairly tended to prove the plaintiff's case" (Chicago City Railway Co. v. Lannon, 212 Ill. 477, 72 N. E. 585); where "there is evidence in the record fairly tending to prove the allegations of the declaration" (Chicago City Railway Co. v. Gemmill, 209 Ill. 638, 71 N. E. 43; Pittsburg, Cincinnati, Chicago and St. Louis Railway Co. v. Banfill, 206 Ill. 553, 69 N. E. 499); where "the evidence introduced on behalf of the plaintiff, when taken to be true, together with all legitimate inferences which may be drawn therefrom in favor of the plaintiff, tends to support the cause of action set out in his declaration" (Hewes v. Chicago and Eastern Illinois Railroad Co., 217 Ill. 500, 75 N. E. 515); or where "the evidence produced before the jury, with all the inferences proper to be drawn therefrom, fairly tended to prove the cause of action set out in the declaration." Union Bridge Co. v. Teehan, 190 Ill. 374, 60 N. E. 533. Each of the quoted expressions bears precisely the same meaning, in so far as a rule is laid down for determining whether a peremptory instruction sbould be given. The differing language used in the various cases results from the fact that the court has not seen fit to state the rule in precisely the same terms on every occasion, and does not indicate that the view of the court has changed at any time.
There are certain cases in which it is intimated that one rule should be applied to a motion of this character when it is made at the close of the plaintiff's evidence, and another when it is made at the close of all the evidence. Among these cases are Pullman Palace Car Co. v. Laack, 143 Ill. 242, 32 N. E. 285, 18 L. R. A. 215; Foster v. Wadsworth-Howland Co., supra; Landigraf v. Kuh, supra; and Foster v. McKeown, supra. We think a careful consideration of these authorities, and others cited above, leads to the conclusion that there is but one rule to be applied to such motions, whether the motion is made at the close of the plaintiff's evidence, or at the close of all the evidence. Chicago City Railway Co. v. Martensen, supra. In either case, if there is no evidence,
or but a scintilla of evidence, tending to prove the material averments of the declaration, the jury should be directed to return a verdict for the defendant. If, however, there is in the record any evidence from which, if it stood alone, the jury could, "without acting unreasonably in the eye of the law," find that all the material averments of the declaration had been proven, then the cause should be submitted to the jury. Frazer v. Howe, 106 Ill. 563; Simmons v. Chicago & Tomah Railroad Co., 110 Ill. 340; Bartelott v. International Bank, 119 Ill. 259, 9 N. E. 898; Offutt v. Columbian Exposition, 175 Ill. 472, 51 N. E. 651. Such evidence last mentioned fairly tends to prove all the material averments of the declaration, and such evidence, standing alone, is sufficient to sustain, warrant, or support a verdict of favor of the plaintiff, even though it may be that a verdict for the plaintiff, if returned, would have to be set aside on a motion for a new trial because against the manifest preponderance of all the evidence. In passing upon a motion for a peremptory instruction the question of the preponderance of the evidence does not arise at all. Evidence fairly tending to prove the cause of action set out in the declaration may be the testimony of 1 witness only, and he may be directly contradicted by 20 witnesses of equal or greater credibility; still the motion must be denied, and, if a verdict for the plaintiff follows, the question whether it is manifestly against the weight of the evidence is for the trial court upon motion for a new trial, and, in the event of that motion being overruled and a judgment entered, for the Appellate Court upon error properly assigned.
When a motion for a peremptory instruction is made by the defendant, if the court is of the opinion that in case a verdict is returned for the plaintiff it must be set aside for want of any evidence in the record to sustain it, a verdict should be directed. If the court is of the opinion that there is evidence in the record which, standing alone, is sufficient to sustain such a verdict, but that such a verdict, if returned, must be set aside because against the manifest weight of all the evidence, then the motion should be denied. Simmons v. Chicago & Tomah Railroad Co., supra; Bartelott v. International Bank, supra; Offutt v. Columbian Exposition, supra. To hold otherwise is to deny to plaintiff the right of trial by jury. There may be in a record evidence which, standing alone, tends to prove all the material averments of the declaration, and which is therefore sufficient to support, warrant, or sustain a verdict in favor of plaintiff, and yet, upon the whole record, the evidence may so preponderate against the plaintiff that a verdict in his favor cannot stand when tested by a motion for a new trial. Where, as here, there is no affirmative defense, the rule applicable may be clearly expressed in these words: A verdict for the defendant
should not be directed, where there is in the record evidence which fairly tends to prove all the material averments of the declaration. A mere scintilla of evidence in favor of the plaintiff does not justify the court in refusing to direct a verdict, because that quantum of evidence, only, cannot be said to fairly tend to prove any material averment of the declaration.
In the case at bar the greater part of the argument of both parties has been devoted to determining where the preponderance of the evidence lies. Appellant contends that the plaintiff, who testified in his own behalf, was so flatly contradicted on a material point by a number of credible witnesses that his evidence in reference to that matter should be entirely rejected. This contention was proper in the Appellate Court, but it has no place here. Evidence appears from the abstract to the effect that a day or two prior to the accident the attention of the appellant's foreman was called by appellee to the fact that there was an opening between the strap and the rod, whereas, they should fit snugly together; and there is proof that this opening indicated that the strap was "sprung" or bent. There is also evidence that on this occasion appellee asked the foreman if the strap was not sprung, and if it would not be safer if a bolt was put through the strap and rod to hold them together, and that the foreman replied that the people who constructed the engine knew better than appellee and the foreman how it should be built, and that the strap or rod was worn, but "that it was all right." Appellee testifies that this opening was an eighth of an inch in width at the end of the strap on top of the rod, and extended back toward the throat of the strap about six inches, gradually growing less as it went backward. There is also proof that, after the accident, inspection of one break indicated that the strap was partly broken through from the inside prior to the time of the accident. When the foreman's attention was called to the matter he made no investigation beyond looking at the opening. The evidence tended to show a state of facts the existence of which required appellant, in the exercise of reasonable care for the safety of its employés, to have the strap removed and inspected on the inside at the time the foreman's attention was called to the opening. The jury might reasonably conclude that, had this course been pursued, the accident would have been prevented.
Appellant must be deemed to have had notice of every defect in the strap which an inspection would have revealed, as it had actual notice of a condition which should have led it to make a careful and searching investigation of the mechanism in question. It is said, however, that as appellee called the attention of the foreman to the opening, and as the defect was not remedied, and appellee continued in the employ, he assumed