Grand Pacific Hotel Co. v. Pinkerton
75 N.E. 427
Ill.
1905
Check Treatment
Mr. Justice Magruder

delivered the opinion of the court:

This is an action of assumpsit, brought originally by the appellees against the appellant, the Grand Pacific Hotel Company, and one Albert E. Glennie, to recover for services rendered by appellees to the appellant. There does not seem to be any difference, or at least any contention between the parties, as to the amount of the judgment. The main contention on the part of the appellant is, that the appellees were employed by Albert E. Glennie, and not by the Grand Pacific Hotel Company, and that the contract or arrangement, made with them on January 31, 1899, was made by Glennie in his own behalf as an individual, and not by the hotel company. The appellees, however, contend that Glennie was the manager of the hotel, and, in making the contract, represented the appellant company, and that the latter is liable to them for the amount of their claim. The question of fact in the case is, whether or not, when the contract was made, Glennie was the manager of the company and made the contract for the company, or whether he made it for himself individually. This question of fact was stoutly contested, and the evidence is conflicting in reference to it. The cause in the court below was tried before the court without a jury, trial by jury having been waived by agreement of parties. The trial court found in favor of appellees upon this question of fact, and rendered judgment against the appellant. The Appellate Court has affirmed the judgment of the trial court. No propositions of law seem to have been submitted to the court by either party. We have held that, where there is a trial before the court without a jury, in order to present a question of law to this court, the parties should present propositions of law to the trial court, as provided for in section 42 of the Practice act, and we have said: “We cannot consider any of the questions of fact because they are all settled by the judgment of the Appellate Court. We cannot consider the questions of-law suggested by counsel, because the trial in this case took place before the court without a jury, and no written propositions to be held as law in the decision of the case were submitted to the trial judge in accordance with section 42 of the Practice act.” (Northern Benevolent and Mutual Aid Ass. v. Hall, 118 Ill. 169; First Nat. Bank of Michigan City v. Haskell, 124 id. 587; Keating v. Springer, 146 id. 481; Dwelling House Ins. Co. v. Butterly, 133 id. 534).

First—The bill of exceptions in the case at bar contains no exception to the final judgment of the court, and there were no propositions of law submitted, “so that we cannot review the question, whether the judgment is supported by the evidence, or whether proper rules of law were applied by the court.” (Cincinnati, Indianapolis and Western Railway Co. v. People, 205 Ill. 538). But while this is so, yet, if the bill of exceptions shows that the appellant excepted to the ruling of the court in admitting the testimony of witnesses, such a ruling is properly preserved for review, when presented by a bill of exceptions. (Cincinnati, Indianapolis and Western Railway Co. v. People, supra). Here, the representative of appellees, who made the contract with Glennie on January 31, 1899, states that Glennie told him that he was the manager of the hotel. Other witnesses testified that, when they went to the hotel, Glennie told them that he was the manager of the hotel. This testimony was objected to by the appellant, and, the objection being overruled, exception was taken to the ruling of the court. It is true, as a general proposition, that “an agency cannot be proven by the mere statement of the alleged agent.” (Rawson v. Curtiss, 19 Ill. 456; Maxey v. Heckethorn, 44 id. 437; Whiteside v. Margarel, 51 id. 507). But we regard it as immaterial in the present case, whether or not this class of testimony was competent or was properly admitted, for the reason that there was other evidence, tending to' show that Glennie had authority to represent the appellant company. We have held that, where a cause is tried before the court without a jury, and there is enough other testimony of unquestioned competency. sufficient to sustain the finding of the court, it will not be disturbed, notwithstanding the fact that incompetent evidence has been received, because the same harmful and erroneous effect does not follow as when the admission of such evidence is before a jury. (Schroeder v. Harvey, 75 Ill. 638; Pardridge v. Ryan, 134 id. 247; Palmer v. Mericden Britannia Co. 188 id. 508; Iroquois Furnace Co. v. Elphicke, 200 id. 411). Here, it appeared from the evidence that Glennie had been manager of the hotel up to a late period in 1898, and, although after May, 1898, the bylaws of the hotel company were so changed ás to make the president the manager, yet, after their change, Glennie was still retained in the hotel as a sort of assistant manager under the president. The proof tends to show that prior to January 31, 1899, when the present contract was made, there had been transactions between the appellees, and Glennie as manager of the hotel. When the contract was made, he was in the hotel giving orders, drawing checks, and acting as one having authority to represent the hotel. He sat at the desk in the private office of the hotel. He drew checks, he gave orders to the employes of the hotel, and in every way appeared to one, having business with the hotel company, as being authorized to act for the latter. He called clerks employed in the hotel into its private office, and gave them orders. It appears from the testimony, introduced by the appellant itself, that the president of the hotel company engaged Glennie to render it services at the hotel, and to assist the president in his management, and to exercise superintendence, and that his position continued to the end of 1899. These, and other circumstances which might be mentioned, show that there was other testimony, independently of the statement of witnesses who heard Glennie say that he was manager, tending to establish the conclusion that he had the authority to contract with the appellees in reference to the matter here in controversy.

It is true, that the hotel company moved the court to strike the testimony of the appellees from the files, -and to find the issues for the defendant for certain reasons, which bear upon questions of fact only, as is shown in the statement preceding this opinion. Where the appellant submits to the trial court, to be marked as “held” or “refused,” a proposition that the finding should be for the defendant, such submission is in the nature of a demurrer to the evidence, and preserves for the court of review the question of law whether the evidence tends to' show a right to recover. (First Nat. Bank v. Northwestern Nat. Bank, 152 Ill. 296; Smith v. Billings, 169 id. 294; Hogan v. Stophlet, 179 id. 150). We are of the opinion that the evidence does tend to show a right to recover on the part of the appellees, and, therefore, there was no error committed by the trial court in overruling the motion to strike the testimony of the appellees from the case and find the issues for the appellant.

It is true, also, that the appellant asked the court to make certain special findings of fact, which are set forth in the statement preceding this opinion, and that the court refused to make such findings. There was no error in this action of the court. We have held that the Practice act, which authorizes, in cases tried without a jury, propositions of law to be submitted to be held or refused, does not provide that propositions of fact may be so submitted; and that such propositions of fact should be refused by the court. (Field v. Crawford, 146 Ill. 136). In First Nat. Bank v. Northwestern Nat. Bank, supra, we said (p. 301): “The statute does not contemplate that, under the cloak of written propositions of law, a party litigant shall have the right to call upon the court to find in his or its favor, seriatim, all the special or particular facts involved in the evidence; and, dehors the statute, it is not a common law function of a judge, in a common law action, to make special findings of fact.” (See, also, Smith v. Billings, 169 Ill. 294; Order of Foresters v. Schweitzer, 171 id. 325).

Second—The record in the present case shows that no exception was taken to the finding, or judgment, of the trial court, and preserved by a bill of exceptions. It is true that, in entering up the judgment, the clerk puts a recitation in the body of the judgment, that the finding and judgment of the court, and the overruling of a motion for new trial, were excepted to. But such recital, inserted by the clerk in the record immediately following the judgment, to' the effect that such exception was taken, cannot be regarded as a part of the record. Where such an exception is taken, it can only be made a part of the record by embodying it in the bill of exceptions, and here it is not embodied in the bill of exceptions. We have held in a number of cases that we cannot consider assignments of error, which question the finding and judgment of the lower court in cases tried without a jury, as authorized by section 60 of the Practice act, unless exceptions thereto have been duly taken and preserved by a bill of exceptions, and that a recital to that effect by the clerk in the record is not sufficient. (Martin v. Foulke, 114 Ill. 206; Gould v. Howe, 127 id. 251; East St. Louis Street Railroad Co. v. Cauley, 148 id. 490; Firemen’s Ins. Co. v. Peck, 126 id. 493; Bailey v. Smith, 168 id. 84). In the case at bar, the finding and judgment are not mentioned in the bill of exceptions. It follows that there is no question of law or fact before this court for review under appellant’s assignment of errors, except so far as is hereinafter stated. Where the bill of exceptions in a case fails to show that any motion was made for new trial, and that an exception was taken to the action of the court in overruling the motion, no reversal of the judgment can be had. It is not sufficient that the transcript of the record, as made up by the clerk, shows that such motion was made and overruled, and that an exception was taken. (James v. Dexter, 113 Ill. 654; Sands v. Kagey, 150 id. 109; Bailey v. Smith, 168 id. 84; Union Ins. Co. v. Crosby, 172 id. 335).

It is, however, claimed on the part of the appellant that, here, the suit'was against two defendants, to-wit, the Grand Pacific Hotel Company and Albert E. Glennie, and that the judgment below was against the Grand Pacific Plotel Company, the present appellant, alone, and that the suit was not dismissed as to Albert E. Glennie; hence it is claimed that the judgment is erroneous, inasmuch as it should have been against both defendants or none, whether the liability was joint, or joint and several. It is undoubtedly the general rule that, where two defendants are sued jointly and served with process, it is error to render final judgment against one of them without disposing of the case as to the other. (Russell v. Hogan, 1 Scam. 552; Dow v. Rattle, 12 Ill. 373; Briggs v. Adams, 31 id. 486; Barbour v. White, 37 id. 164; Felsenthal v. Durand, 86 id. 230; Potter v. Gronbeck, 117 id. 404). In Felsenthal v. Durand, supra, it was held that “in actions on contracts against several, where all are served with process, the judgment must be against all or none, unless some of the defendants make a personal defense—as, infancy, lunacy, bankruptcy and the like.” The judgment in this case is said to be erroneous because, as is claimed by the appellant, there was no dismissal of the suit as to Glennie, and judgment was rendered, without disposing of the suit as to Glennie, against the Grand Pacific Hotel Company alone. It is furthermore contended that the rule, that an exception to the finding and judgment must be preserved by a bill of exceptions, has no application in the-present case upon the ground that the defect in the judgment, as above indicated, appears upon the face of the record.

The rule undoubtedly is that, where there are errors, of law, which appear on the face of the record, as properly made up by the -clerk, it is unnecessary that an exception to the finding and judgment of the court should be preserved in the bill of exceptions. Where error appears upon the face of the judgment itself, no exception to the judgment is necessary to be preserved by a bill of exceptions. (People v. Chicago and Northwestern Railway Co. 200 Ill. 289; McChesney v. City of Chicago, 151 id. 307; Jones v. Village of Milford, 208 id. 621; Wiggins Ferry Co. v. People, 101 id. 446). The record has been said to consist, in a suit at law, of the process, sheriff’s return, the declaration, pleas, demurrer, if there is any, and any judgment upon demurrer or other judgment, interlocutory or final. (VanCott v. Sprague, 5 Ill. App. 99). The claim here is that, according to the showing of the record, Glennie was served with process, as well as the Grand Pacific Hotel Company, and filed a plea, and that the record, consisting of the process, the pleadings and the judgment, shows that the judgment was defective by reason of having been rendered against the appellant alone, without a dismissal of the suit as to Glennie.

The law upon this subject, as contended for by the appellant, may be admitted to be correct, but we do not consider that the showing of the record is such as appellant claims it to be. It is conceded that, if the suit was actually dismissed as to Glennie, the judgment was properly rendered against the appellant alone. Here, the suit could be properly dismissed as to Glennie, and retained as to the appellant, because Glennie was really and in fact an unnecessary party, under the theory upon which the case was tried in behalf of the appellees. If Glennie was the manager of the hotel company, and had authority to make the contract with appellees, as the representative of the appellant, then the appellant was liable because of the act of Glennie as its agent; and Glennie was an unnecessary party to the suit. The rule, that, in order to recover in an action ex contractu, a cause of action must be established against all of the defendants, and that a dismissal or discontinuance as to one co-defendant effects a discontinuance as to the entire action, so as to make a judgment against the remaining defendant or defendants erroneous, is subject to certain exceptions. One of these exceptions is, that, whenever a defendant gives in evidence matter, which is in bar to the action against himself only, and of which the other defendant cannot take advantage, judgment may be for such defendant, and against the other. The most common illustration of this exception is, where a defense is interposed which is personal to the defendant who' makes it, such as infancy, coverture, lunacy, bankruptcy, and the like. Another exception is, where one is joined as a defendant in the action, who is an unnecessary or improper party. (Mayer v. Brensinger, 180 Ill. 110, and cases there cited).

The question then arises, whether or not the suit was actually dismissed as to Glennie, or whether there -was an agreement or understanding between the parties that it should be treated as a suit against the appellant alone. The judgment of September 26, 1903, recites that on “agreement of the parties hereto this cause is submitted to the court for trial without a jury to try the issues as to the defendant Grand Pacific Hotel Company only.” If this recital is true, then, by agreement between the parties, the suit was tried as a suit against the appellant alone. It is further claimed, however, on the part of the appellant, that a new judgment was entered on January 25, 1904, modifying and amending the judgment of September 26, 1903. The only substantial difference between the judgment of September 26, 1903, and that of January 25, 1904, is that this recital as to the agreement of the parties is left out in the latter judgment. Both judgments are against the appellant alone, and both judgments are for the same amount. Applying the rule that, where a defect appears on the face of the judgment itself, it may be assigned as error in the reviewing court, the question arises whether the judgment of January 25, 1904, was correct in its amendment of the judgment of September 26, 1903, in leaving out a recital of the agreement already mentioned. The judgment of January 25, 1904, recites that the action of the court in amending the judgment of September 26, 1903, is based upon an inspection by the court of the bill of exceptions, filed on September 30, 1903, and of a minute made by the clerk upon his minute book. The bill of exceptions, and the minute upon the minute book of the clerk, do not justify the amendment of the judgment of September 26, 1903, in the respect indicated.

The bill of exceptions shows that, when the trial commenced, the attorney of the Grand Pacific Hotel Company announced that the question was “the amount of service that was rendered,” and the attorney of the appellees made the following announcement: “We will dismiss the case without prejudice as to Glennie and proceed as to the Grand Pacific Hotel Company.” This announcement of counsel for the appellees amounted substantially to a dismissal of the cause, although the clerk and the court failed to enter a formal order of dismissal in accordance with the announcement. Subsequently, however, the case was tried as though the only defendant interested was the appellant company. When the testimony on the part of the defense was closed, the recitation in the bill of exceptions is, “the defendant here rested,” showing that only one defendant was regarded as having introduced testimony. The bill of exceptions shows that, on September 26, 1903, appellant made a motion to set aside the finding of the court and to arrest judgment, ahd its motion-was entitled as follows: “William A. Pinkerton and Robert A. Pinkerton, doing business under the style of Pinkerton National Detective Agency, plaintiffs, v. Grand Pacific Hotel Company, defendant,” showing that the appellant regarded the suit as a suit against the hotel company alone. Again, on June 22, 1903, the appellant made a motion to strike the testimony of the plaintiffs from the case and to find the issues for the defendant, and entitled the motion in the same way above indicated, that is, as being a suit against the Grand Pacific Hotel Company alone.

Again, on December 22, 1902, the appellees filed a bill in the Superior Court against the Grand Pacific Hotel Company alone, as defendant, setting up the facts as to the dismissal of the suit at law for want of prosecution on October 4, 1902, and the other facts as to the submission of the cause for trial to the court without a jury, and its being taken under advisement, etc., and praying that the court of chancery to whom the bill was addressed, should set aside and vacate the said judgment of dismissal, so entered on October 4, 1902. This bill was demurred to, and the demurrer was sustained, and the bill was dismissed. The motion-in arrest of judgment made by the Grand Pacific Hotel Company set out this bill, and the demurrer, and the decree of the court sustaining the demurrer and dismissing the bill, and urged it as res judicata, claiming that the question, as to whether the order of dismissal of the suit for want of prosecution should be set aside, had been passed upon and decided by the chancery court, and, therefore, that the law court had no jurisdiction to set aside that order. The general rule is that a plea of former adjudication 'must show that the two actions were between the same parties. (9 Ency. of Pl. & Pr. p. 626). The judgment against one of the obligors in a joint and several bond is no bar to an action against the other obligor, and, where a plea of former judgment contains an averment that it is between the same parties, a judgment against one of the parties is no bar to an action against the others. (Shuster v. Perkins, 2 Jones’ L.—N. C.—217). If, as is now claimed by the appellant, the suit was a suit against the Grand Pacific Hotel Company and Glennie at the time the motion in arrest of judgment was made, then the decree in the chancery suit could not be set up as a former adjudication, or as res judicata, because the chancery suit was between appellees and the Grand Pacific Hotel Company alone. By seeking to use the decree in a. suit, where appellant alone was a party defendant, as a former adjudication or res judicata, the appellant admitted that the pending suit at law was against the appellant alone. It is not to be presumed that counsel for appellant would set up in a suit at law against two defendants a decree in chancery, which had been rendered in a chancery suit where only one of such defendants was a party. Without going further into detail, the case was tried all the way through upon the theory that it was a suit against the Grand Pacific Hotel Company alone.

Again, the action of the court in amending the judgment of September 26, 1903, was based upon a minute made by the clerk in his minute book. When that minute, as it appears in the record, is examined, it shows that the entry there made was as follows: “By agreement, order of July, and appeal entered July 25, 1903, vacated; court to try the issues as to defendant Grand Pacific Hotel Company only.” This minute of the clerk was a minute that the agreement made was to try the suit against the Grand Pacific Hotel Company only. It follows that the judgment of January 25, 1904, shows upon its face, that it was based upon a bill of exceptions and upon a minute of the clerk, both of which, when examined, establish the recital made in the judgment of September 26, 1903, as a correct and true recital.

Por the foregoing reasons, we are of the opinion that this cause, under the facts, should be treated as a suit against the Grand Pacific Hotel Company alone. It would surely be unjust to make the appellees suffer for the neglect of the court officials to properly enter an order, dismissing the suit, when, as a matter of fact, the attorneys of the appellees ordered it to be dismissed.

Third—It is claimed on the part of the appellant that the court below erred in overruling its motion in arrest of judgment. This motion in arrest of judgment was made on September 26, 1903, and appears in the bill of exceptions, dated September 30, 1903. As a motion in arrest of judgment it was properly overruled by the court, because it was not based upon anything that appeared upon the face of the record. A judgment is never arrested, except for some intrinsic cause apparent upon the face of the record. (Evans v. Lohr, 2 Scam. 511). In Jones v. People, 53 Ill. 366, we said: “On the point that the court erred in refusing to arrest the judgment, it will be remembered that such a motion is never proper or allowable, except for some intrinsic defect in the record.” Here, the reasons, assigned for the motion in arrest of judgment, were that a bill in chancery had been filed in an equity court, asking- that the order, dismissing the cause, be Set aside, and that the bill had been demurred to, and the demurrer to it had been sustained, and the bill dismissed for want of equity. The facts thus set up in support of the motion in arrest appeared dehors the present record, and no defect, appearing upon the record of the present suit, was set up as a reason in support of the motion in arrest.

If the motion be regarded as a motion for a new trial, improperly called a motion in arrest of judgment, there was still no error in overruling it. It simply challenged the action of the court in entering the order of December n, 1902, amending the record, and in entering the order of June 20, 1903, setting aside the former order of October 4, 1902, dismissing the cause. In entering the two orders in question the court considered and tried questions of fact dehors the record. It was, therefore, necessary for the appellant, if it wished to bring for review before this court the action of the court in entering those two orders, to take exceptions at the times when they were entered, and preserve those exceptions by a bill of exceptions. This was not done. “A motion for a new trial is designed to bring in review before the trial court the occurrences of the trial, and to present for consideration alleged errors during the course of the trial. (Alford v. Dannenberg, 177 Ill. 331). Motions upon the pleadings, and other matters arising before the trial is actually entered upon, furnish no basis for the motion for a new trial. * * * A new trial will not be granted on account of errors or defects in the pleadings. Errors in rulings on demurrers and motions relating to the pleadings may be reviewed on exceptions without a motion for a new trial. Such errors of law are not grounds for a new trial.” (Guyer v. Davenport, Rock Island and Northwestern Railway Co. 196 Ill. 370; 14 Ency. of Pl. & Pr. 827-829; 16 Am. & Eng. Ency. of Law,—2d ed.—610, 611). A bill of exceptions should be presented and signed at the term, at which judgment is rendered, except in cases where counsel consent, or the judge, by an entry on the record, directs that it may be prepared in vacation and signed nunc pro tunc. The questions, arising in a suit before the submission of the cause to the jury, or in case of a waiver of a jury, before the hearing by the court, are to be determined summarily by the court, and the court’s rulings thereon must be preserved by a bill of exceptions, settled at the term when they were made, or upon time allowed by the court, and matters relating thereto will be expunged from the bill of exceptions, presented and signed at a subsequent term, although the rulings were assigned as reasons for a new trial and the motion for new trial was continued to such term. (Guyer v. Davenport, Rock Island and Northwestern Railway Co. supra). So, in the case at bar, the order entered by the court on December 11, 1902, amending the record by showing certain proceedings which had been omitted through “error and misprisal,” was based upon matters of fact outside of the record brought to the attention .of the court, and, if the appellant desired a review of the action of the court in entering that order, it should have excepted at the time it was so entered, and preserved its exceptions by a bill of exceptions, settled at the term at which that order was entered, or within a time then allowed by the court for that purpose. The same is true as to the order of June 20, 1903. This course was not pursued by the appellant, and, therefore, the matters, relating to the entry of those orders, have been improperly embodied in the bill of exceptions, presented and signed at a subsequent term, .to-wit, on September 30, 1903.

In addition to what has been said above, after this cause was re-instated the appellant appeared and took part in the proceedings, as appears from the recitation of facts already made. It thereby waived its right to except to the order of the court re-instating the cause. After the cause was re-instated, the appellant should not have appeared at all, or at most should have confined itself to the resistance of any action proposed by the appellees. (Prall v. Hunt, 41 Ill. App. 140). In Herrington v. McCollum, 73 Ill. 476, where a cause, which had been dismissed, was re-instated, and the parties appeared at all subsequent proceedings, and followed the case to the Supreme Court, and made no objection that the case was re-instated without notice until after the case was remanded from the Supreme Court, it was held the right to raise that objection was waived; and it was there said (p. 479) : “The court unquestionably had jurisdiction of the subject matter of litigation; and it has never been questioned that parties may so far control jurisdiction over their own persons, in such a case, as to confer upon the court the right to proceed, by voluntarily entering an appearance. The defendants, to avail of the right to question the jurisdiction of the court when the case was re-instated, should either have not appeared at all, or limited their appearance to the objection against the jurisdiction of the court.”

For the reasons above stated the judgment of the Appellate Court is affirmed.

Judgment affirmed.