Kloepher v. Osborne , 1913 Ill. App. LEXIS 1199 ( 1913 )

Mr. Presiding Justice Gridley

delivered the opinion of the court.

It is first contended by counsel for defendants that the evidence is insufficient to support the verdict and judgment because it does not show that the car on which plaintiff was riding when injured was owned and operated by the defendants. It is argued that although the defendants filed a plea of the general issue to plaintiff’s declaration and although such a plea admits the possession and control of the car and appliances described in the declaration, and the character or capacity in which the defendants were sued, still there was no evidence “to connect the car mentioned in the declaration with the car concerning which the plaintiff testified.” In our opinion there is no merit in the contention. McNulta v. Lockridge, 137 Ill. 270, 285; Chicago Union Traction Co. v. Jerka, 227 Ill. 95, 99; Pennsylvania Co. v. Chapman, 220 Ill. 428, 431; Brunhild v. Chicago Union Traction Co., 239 Ill. 621, 624.

And we cannot agree with the contentions that there was no evidence of negligence on the part of the defendants as charged in the declaration, and that the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law. “The general rule is, that negligence and contributory negligence are questions of fact for the jury, but when the facts are admitted and all reasonable minds will agree that the injury was the result of plaintiff’s own negligence, the court may, as a matter of law, find that there was such contributory negligence on the part of the plaintiff as to defeat a recovery.” Howes v. Chicago & E. I. R. Co., 217 Ill. 500, 503. “Standing or sitting upon the platform or steps of a railway car when the train is in motion, although it may be prima facie evidence of negligence, is not, under all circumstances, negligence per -se and as a matter of law.” Chicago & A. R. Co. v. Fisher, 141 Ill. 614, 627; Lake Shore & M. S. R. Co. v. Kelsey, 180 Ill. 530; North Chicago St. Ry. Co. v. Polkey, 203 Ill. 225, 232; Chicago & W. I. R. Co. v. Newell, 212 Ill. 332. We cannot say that, under the facts as disclosed from plaintiff’s testimony, all reasonable minds would agree that plaintiff’s injury was the result of his own negligence.

It is also contended by counsel that the refusal of the trial judge to vacate the judgment and grant a new trial was an abuse of discretion. The matter of setting aside a default has always been held to be within the sound discretion of the court (Boyle v. Levi, 73 Ill. 175), which will not be interfered with, on appeal, except where that discretion is clearly abused. Greenleaf v. Roe, 17 Ill. 474; Staunton Coal Co. v. Menk, 197 Ill. 369. The judgment will not be opened unless the defendant shows a prima facie defense to the merits. Gilchrist Transp. Co. v. Northern Grain Co., 204 Ill. 510. If such a showing is made, the default may be set aside, provided a reasonable excuse is shown for not having made the defense. Mason v. McNamara, 57 Ill. 274. The rule is that both diligence and merit must be shown. Hartford Life & Annuity Ins. Co. v. Rossiter, 196 Ill. 277. Although it may be shown that the defendant has a good defense, a default will not be set aside if the defendant, or his attorney, has been guilty of negligence. Mendel v. Kimball, 85 Ill. 582; Plaff v. Pacific Exp. Co., 251 Ill. 243, 247; Staunton Coal Co. v. Menk, supra. “Affidavits, filed in support of applications to set aside judgments by default, or entered in ex parte proceedings, are to be construed most strongly against the party making the application.” Staunton Coal Co. v. Menk, supra, p. 374. After careful consideration of the record before us, we are unable to say that the trial court in refusing to vacate the judgment abused its discretion.

It is futher contended that the trial judge erred in permitting plaintiff’s attorney to file the counter-affidavits of plaintiff and Dusham on the question of meritorious defense. Upon a motion to set aside a default and vacate a judgment, counter-affidavits on the question of diligence are admissible. J. W. Farrior & Co. v. Mickle, 133 Ill. App. 444; Mutual Ins. Co. v. Carnahan, 122 Ill. App. 540; Hartford Life & Annuity Ins. Co. v. Rossiter, 196 Ill. 277, 280; Gilchrist Transp. Co. v. Northern Grain Co., 204 Ill. 510, 513. But it is not proper for the court to consider counter-affidavits controverting the affidavit of the defendant as to his meritorious defense. Mendel v. Kimball, 85 Ill. 582; Gilchrist Transp. Co. v. Northern Grain Co., supra. Still, where, as in this case in our opinion, no sufficient cause for opening the judgment is shown, the error in permitting the filing of the counter-affidavits is not prejudicial. Gilchrist Transp. Co. v. Northern Grain Co., supra.

It is lastly contended by counsel that the judgment against defendants was improper because they were not, as receivers, in control and possession of the property of the railroad company on the day the judgment was entered. It appeared from the affidavit of Mr. Rogers and the copy of the order of the United States Court accompanying the same, filed in support of defendant’s motion, that ten days before the entry of the judgment, a “single operating receiver,” in the person of W. O. Johnson, was appointed by said court and ordered to take immediate possession of all the property of the railroad company; that the defendants as the then receivers were directed to turn over all of said property in their possession to said Johnson, but were retained as “advisory receivers of the court;” that Johnson, as receiver, was authorized to defend all suits against him or the company or “its prior receivers;” and that three days before the entry of said judgment the defendants, as receivers, made formal transfer of all of said property to said Johnson, as receiver, in compliance with the order. It is to be noticed that the defendants were not discharged as receivers. It is argued by counsel that, although a subsequent receiver is liable for the torts of his predecessors and can be sued for the same, and although property in his hands is a fund which is liable for any judgments standing against prior receivers, . as such, at the time of the transfer of said property to him, in this case a different situation is presented in that the judgment was rendered against the defendants, as receivers, after they had, by order of the court appointing them, turned over to Johnson all of the property held by them as receivers and had parted with all control over the same, that at the date of said judgment the defendants had nothing in their hands upon which the judgment could operate and that the judgment against them was, therefore, improper.

We have reached the conclusion that, under all the-circumstances of this case, the judgment against the defendants should not be reversed for the reasons advanced by counsel. Wien the accident to plaintiff occurred, and when plaintiff brought suit against the defendants to recover damages for the injuries sustained, the defendants, as receivers, had possession and control of the property of the railroad company. By filing their plea of general issue to plaintiff’s declaration they admitted that they had such possession and control, as receivers. When the case was called for trial, the verdict rendered and the judgment entered, it does not appear that either the trial court or the attorney for the plaintiff was advised of any different situation existing than that disclosed from the pleadings. The judgment entered at that time was an adjudication of the matters in controversy. After the judgment was entered, the trial court was for the first time advised of the entry of the order of the United States Court,—entered ten days before the judgment here in question was rendered. Inasmuch as it appears from the affidavit of Mr. Eogers that the attorneys for the defendants knew that the cause, by order entered February 8th, had been set for trial for February 27th, it was the duty of said attorneys to have notified the Superior Court in some appropriate manner of the entry of the order of the United States Court of February 21st, immediately after its entry, and we think that the fact that they did not do so should preclude the defendants from urging, after the entry of the judgment, that said judgment should be vacated. McNulta v. Ensch, 134 Ill. 46, 55; Woddington v. Huey, 80 Ga. 651.

The liability of a receiver for the torts of his servants in operating a railroad is not a personal one, but a liability in his official capacity only, and the damages for such torts are to be paid only out of the fund or property in the control of the court appointing the receiver, and a judgment against a person, as receiver, “to be paid in due course of administration,” is a judgment in the nature of a judgment in rem, or against the fund. McNulta v. Lockridge, 137 Ill. 270, 279; Farmers’ L. & T. Co. v. Central R. R. of Iowa, 7 Fed. 537, 539; Bartlett v. Cicero Light Co., 177 Ill. 68. “So long as the property of the corporation remains in the custody of the court and is administered through the agency of a receiver, such receivership is continuous and uninterrupted until the court relinquishes its hold upon the property, though its personnel may be subject to repeated changes.” McNulta v. Lockridge, 141 U. S. 327, 332; Knickerbocker v. Benes, 195 Ill. 434. Such a judgment rendered in an action at law in a state court, by virtue of the provisions of the Act of Congress of March 3, 1887, against a receiver appointed by a federal court is conclusive as to the existence and amount of the plaintiff’s claim, but the time and manner of its payment are to be controlled by the court appointing the receiver. Dillingham v. Hawk, 9 C. C. A. 101, 60 Fed. 494; Jackson v. Lahee, 114 Ill. 287, 294; Richards v. People, 81 Ill. 551. While it is true that where a receiver has been discharged from his trust no judgment can be rendered against him for torts committed by his employees while he was receiver (34 Cyc. 481; High on Receivers (4th Ed.) 398b; McNulta v. Lockridge, 137 Ill. 270, 282), still, in some cases, where the property or fund is taken out of the receiver’s hands, by order of the court appointing him, without discharging him, an action pending against him may proceed to judgment. 34 Cyc. 411; Cowen v. Merriman, 17 App. Cas. D. C. 186; McCarley v. McGhee, 108 Fed. 494. We are of the opinion that, under the facts of this case, the judgment against the defendants, as receivers, should stand, and it is accordingly affirmed.

Affirmed.