Patterson v. Johnson

114 Ill. App. 329, 1904 Ill. App. LEXIS 420

• Court: Appellate Court of Illinois
• Decided: June 3, 1904
• Docket: Gen. No. 11,172
• Status: Published

Opinion

Mr. Justice Stein

delivered the opinion of the court.

First. The decree in this case rests upon the violation of two different ordinances. The violation of either, if the ordinance be valid and a case be otherwise made out, would be sufficient basis for the decree. One of the ordinances, being amended section 49, quoted in full in the preceding statement, forbids the maintenance of a blacksmith shop on any street51 in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes * * without the written consent,” etc., “ provided that in determining whether” said two-thirds “are used exclusively for residence purposes any building fronting upon another street and located upon a corner lot" shall not be considered.” Lot 6, upon which appellants were about to remove the blacksmith shop, is situated in a block bounded by three streets, Clark street and Sheffield and Addison avenues. If the three streets be all considered, then under the evidence two-thirds of the buildings on both sides of them were not used exclusively for residence purposes, and no consent of a majority of the property owners was required, and the ordinance did not apply. On the other hand, if Sheffield avenue, one of the streets upon which the lot fronted, be alone considered, two-thirds of the buildings on both sides of that street were used exclusively for residence purposes, and the consent of a majority of the property owners on both sides of the street was required, and the ordinance did apply. It is not denied that there was no consent of the majority last mentioned.

Upon the authority of Harrison v. The People, 195 Ill. 466, it is contended that amended section 49 should be so construed as to require the consent of the property owners only where two-thirdsof the buildings in the block, counting both sides of all the streets surrounding it, are used exclusively for residence purposes. In that case an ordinance provided that applications for a license to keep a dram-shop should be signed “by a majority of the property owners according to the frontage on both sides of the street in the block upon which such dram-shop is to be kept,” and it was held that the words “on both sides of the street,” etc., meant “both sides of each street surrounding the block in which the dram-shop was to be kept.” The ordinance in the Harrison case, however, did not contain the proviso which the one before us does, and which may have been and likely was inserted in ordér to guard against the construction sought to be put in that case upon the word “block.” The opinion of the Supreme Court in the Harrison case was filed February 21, 1902, and the amended section with the added proviso we are considering was passed the 27th day of the month preceding. Previously the trial and Appellate Courts had decided that it was sufficient if the application for the license was signed by a majority of the property owners on both sides of the street upon which the dram-shop was proposed to be located, thus holding that “block” meant simply a part of a street and nót a square. The proviso expressly excludes “any building fronting upon another street,” that is, upon another street than the one where it is proposed to locate or maintain a blacksmith shop. In our opinion the Harrison case, supra, does not control this one, and under amended section 49 no blacksmith shop can be maintained on any street in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes unless a majority of the property owners according to frontage on both sides of the street for the length of the block in ■which the blacksmith shop is to be located or maintained consent thereto.

The court found that the removal of the shop upon lot 6 would injuriously affect the property of appellee, expose her buildings to a greater danger from fire, increase the rate of insurance thereon about ten per cent, depreciate their market value about ten per cent, and lessen their rental value about ten per cent; that this damage and injury is irreparable and special to appellee. These findings bring the case at bar within the rulings in Griswold v. Brega, 160 Ill. 490, and 57 App. 554, where, upon a similar state of facts, a perpetual injunction against the removal of a wooden building in violation of a city ordinance was upheld. There, as here, it was contended that a mere depreciation in value of complainant’s property and greater danger from fire did not give rise to a nuisance and did not constitute an irreparable injury justifying the interposition of a court of equity; but both the Appellate and Supreme Courts held otherwise, although they were dealing, not with a frame building used as a blacksmith shop, but with a “wooden building” merely.

In view of the fact that appellee’s buildings were in process of erection at the time she filed her bill and were not finished until the 25th of July, 1902, which was the very day when she closed her proofs before the master, the complaint of appellants that the testimony of her witnesses as to the effect of locating and maintaining the blacksmith shop alongside of her buildings is “mere opinion of what might happen,” and should therefore be disregarded, is not entitled to much, if any, consideration. If the argument be sound, then appellee was bound in the first place to offer no objection'to the placing of the obnoxious structure adjacent to her buildings, and also to permit the prosecution of the blacksmith business in the structure for a sufficient length of time to enable a definite ascertainment of the loss and injury thereby occasioned to her. Had she done so, she would have been charged with laches or estoppel m pais, and probably with both. In the very nature of things, appellee could, under the existing circumstances, offer none but opinion evidence as to the consequences to her of the threatened acts of appellants; and what those consequences would be is so apparent that but little testimony was required. Moreover, in this, as in many other instances where appellants contend that the findings of the decree are against the evidence of find no support therein, it is a sufficient answer that according to the recitals of the decree the cause was heard upon the testimony reported by the master, "and “also the proofs and evidence heard in open court” without objection. What these proofs so heard were, is not shown by a certificate of evidence or otherwise; and we shall therefore presume that they were of such a character as to warrant the facts found by the court in its decree.

Being of opinion that appellants were clearly guilty of a violation of the ordinance governing the removal and maintenance of blacksmith shops, we deem it unnecessary to consider the questions of fact and law growing out of the finding of the decree that they were also guilty of a violation of the ordinance prohibiting the removal of a frame building injured over fifty per cent of its original value, and the erection of frame buildings nearer than one foot to any line of the lot upon which they are built.

Second. On the same day (June 2, 1902) that the bill was first amended, the "replication was filed without any rule upon the defendants to demur, plead or answer. The second amendment was filed July 30, 1902, simultaneously with the closing of the proofs before the master, and also without any rule to answer. The cause was referred to the master July 11, 1902, without objection, and the ordinances pleaded in both amendments were offered and received in evidence by the master, also without objection, July 15, 1902. It thus appears that the cause was not at issue while pending before the master. Apparently to cure ' this irregularity, appellee obtained an order on appellants long after the master had filed his report to answer.the amendments to the bill in five days. Three days after the entry of the order appellants moved to set it aside, which motion was denied, and on the same day, without waiting for the expiration of the rule to answer, the final decree was entered. That it was irregular to take the testimony, both before the master and in open court, without a formal joinder of issues, is not and cannot be denied. But the irregularity did appellants no harm and must be regarded as waived by them. They made no objection to the reference to the master. Both parties, at the hearing before the master as well as in open court, treated- the case as at issue. Ho objection based upon the want of issue joined was raised" at any time. The, ordinances set up in the amendments were received without objection. Heither before the master nor the court did appellants at any time apply for. a continuance on the ground of their being surprised by the subject-matter of the amendments, or for the purpose of obtaining time to meet the same by additional proof.

In Miller v, Whittaker, 33 Ill. 387, after appellant had filed his answer to the bill, appellee amended his bill. The cause was set down for a hearing upon the bill, answer, replication, etc., by consent of appellant. The Supreme Court say: “He cannot now be heard to complain that he was not required to file a new answer. He was at liberty to file a new answer, but the complainant was not obliged to require him to do so. 1 Daniell’s Ch. Pr., 468.” In Jameson v. Conway, 5 Gil. 230, it was insisted that the decree must be reversed because no replication was filed. The court says: “The present cause was not set down for hearing on bill and answer, but it was submitted without objection on the pleadings and proofs; both parties participated. They treated the cause as if it was at issue and it was so heard and decided by the court. Under such circumstances it is too late to urge the objection in this court.” In Long v. Fox, 100 Ill. 50, the court says: “If plaintiffs in error desired to answer they should at least have made application to do so at the time of the rendition of the decree. Before that time they had the right to do so without leave; but not having done so, and sitting quietly by and allowing the decree to go without asking an extension of time to answer, or even calling the attention of the court to the fact that there was a demurrer on file not passed upon, or in any other manner attempting to raise the question in the court below, we hold that it is now too late to raise it here for the first time. The hearing proceeded and the case was treated by both parties as though the issues were properly made up, and they cannot now be heard to say they were not made up.” In Downey v. O’Donnell, 92 Ill. 561, the court says: “ On the hearing the court allowed appellees to amend their bill, and this ruling is relied upon as error. This objection is fully met by section 37, chapter 22, Devised Statutes, 1874, p. 202, which is broad enough to allow the amendment. Had appellant been surprised at the character of the amendment, and if the amendment was such that he was not then prepared for trial, it was his right under the statute to have applied for and obtained a continuance. But no application of this character was made, and as the statute authorized such amendment the court did right in allowing it.” In Koch v. Roth, 150 Ill. 217, the court says: “In the present case the decree recites that the leave to amend the bill was granted against the objection of the defendants, but they were given leave to file an amended answer, and it nowhere appears that any exception was taken to the ruling of the court overruling the objection, or that any suggestion was made of surprise, or of the necessity of a continuance. There is nothing in.the record to show that the defendants were in any way injured or prejudiced by the action of the court, and it cannot therefore be said that there was any abuse of discretion or error in permitting the amended bill to be filed.” Benepe v. Meier, 75 Ill. App. 561.

Appellants were in no way injured by the entry of the final decree before the expiration of the rule to answer. Under the practice in this state as above shown and the condition of the record before us, they could not have • justly complained if no rule whatever had been entered. Appellants took a hostile attitude to the rule by moving to set it aside, and they cannot now be heard to complain that they did not get what they did not want.

Third. The bill as originally framed was predicated upon an ordinance which forbids the removal of a frame building “ not damaged more than fifty per cent of its original value ” except upon certain conditions alleged not to have been complied with, but expressly excepts from its operation “ the case of any person removing a building upon his own premises.” Appellee endeavored to bring herself within the terms of this ordinance by alleging in her bill that the lot upon which the building in question stood belonged to one of the appellants and that the lot to which it was about to be removed belonged to the other. When it appeared, however, that both lots belonged to the same appellant, she amended her bill, first, by pleading an ordinance which prohibits absolutely the removal of “ any frame building which has been injured more than fifty per cent of its original value,” and secondly, by pleading the ordinance regulating the removal of blacksmith shops. Appellants insist that by these amendments appellee based her right to relief on a new ground repugnant to and inconsistent with the ground for relief relied on in the original bill. In this contention we cannot concur. The ordinance first pleaded treats of buildings damaged up to fifty per cent, and the second one, of those damaged over fifty per cent. The original bill alleged that the building in question was damaged over fifty per cent and the same allegation was appropriate to show a violation of the second ordinance. But even if there be such repugnancy and inconsistency as claimed, we see no objection to the course pursued by the court in allowing the amendments. Under section 37 of the Chancery Act “ the court * * * may permit the parties to amend their bills * * * on such terms as the court may deem proper.” The discretion thus vested in the court was properly exercised. Nothing would have been gained by either party if leave to amend had been refused, and appellee had been compelled to file a new bill and incur unnecessary costs and expenses. In Papin v. Goodrich, 103 Ill. 94, the bill as first filed prayed for specific performance of a contract, but by an amendment prayed for its' cancellation. The amendment was held proper, the court observing that “ the defendants had no vested rights in the phraseology or form of the bill,” and citing Jefferson v. Kennard, 77 Ill. 246.

The original bill was sworn to, but the second amendment to it was not, for which reason, it is argued that it should not have been allowed. That, ordinarily, in such a case the amendment should also be verified, has frequently been held. Gregg v. Brower, 67 Ill. 525; Jones v. Kennicott, 83 Ill. 484; High on Injunctions, 2nd ed., sec. 1592. But we apprehend the true meaning and object of the rule to be that in cases where an injunction issues upon a bill and it becomes necessary to amend the same, the injunction will not be continued in force unless the chancellor can see from a sworn amendment that it should be allowed without prejudice to the injunction. In the case at bar no such question is raised. That the rule requiring verification of the amendment is not a rigid and unbending one appears from Gregg v. Brower, supra, cited by appellants, where, notwithstanding the rule was not adhered to, and although in the languageof the court “the amendment was material, changing or rather adding to the liability of the appellant,” yet the decree was affirmed. Mason v. Bair, 33 Ill. 194, was a bill for specific performance and to enjoin the prosecution Of an action of ejectment, and it was held not to be error to allow an amendment to the bill after replication filed and the cause submitted on the evidence, the court saying : “ Such amendments are allowed in furtherance of justice. They are within the discretion of the chancellor, and unless it appears that an amendment has worked injustice or great hardship t'o the defendant, the exercise of the discretion will not be controlled.” In Marble v. Bonhotel, 35 Ill. 240, where the bill was also verified, the court laid down the same rule, and added that while the complainant is estopped from so amending his bill as to contradict facts which he has positively sworn to be true unless he can clearly show that the statement was made in mistake, yet when the amendment only enlarges and amplifies the statement or states additional facts (and such is the nature of the amendment under consideration) it is properly allowed. When the chancellor allowed the amendment, the subject-matter of it .-had been already proven before the master, and it was not necessary that it should be further verified. Bauer Grocer Co. v. Zelle, 172 Ill. 407. Besides, if on the final hearing the complainant shows himself to be entitled to an injunction the court will grant it to him although the bill is not sworn to. Hawkins v. Hunt, 14 Ill. 44; Shobe v. Luff, 66 Ill. App. 426.

Appellants are in error in asserting that the bill and the amendments did not charge a threatened violation of the blacksmith shop ordinance. It was expressly alleged that a blacksmith shop had been maintained on lot 2 and that appellants intended and were about to move the same to and upon lot 6 and there “ will continue to use said building as a blacksmith shop.”

Finally, it is urged that the decree is li inconsistent and contradictory of itself.” If such be the case, it would furnish no reason why it should be reversed, unless the inconsistency amounib to legal error. That has not been shown. An error in logic is not necessarily an error in law. ISTor we been able to discover any inconsistency or self-contradiction.

The decree will be affirmed.

Affirmed.