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Gibbons v. Brandt

November 7, 1947

GIBBONS
v.
BRANDT ET AL.



Author: Sparks

Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

SPARKS, Circuit Judge.

This is an equitable action to enforce against certain of defendants' real estate in Chicago a judgment previously recovered by plaintiff in the Circuit Court of Cook County, Illinois, against Jack Cannaven, 393 Ill. 376, 382, 66 N.E.2d 370. The action against Cannaven was brought under Article VI, section 14, of the Illinois Liquor Control Act, and this action to enforce the lien of that judgment is brought under Article VI, section 15, Ill. R.S. Ch. 43, sections 135 and 136. Previous to and at the time of plaintiff's alleged injury out of which this controversy arose, Cannaven was operating a tavern in appellants' building, located on their real estate in Chicago, which was then held by Cannaven as tenant of appellants, and against which appellee now seeks to enforce her judgment against appellants' building and premises which were so leased and occupied by Cannaven at the time she sustained her injury, on August 10, 1940.

Defendants in their answer admitted some material allegations of this complaint, denied others and pleaded lack of information as to the remaining issues. The second paragraph of answer alleged that since plaintiff's alleged injury, the tavern building in which she sustained it was so substantially damaged by explosion and fire, as to lose its identity as the same building or premises theretofore located; that after such explosion and fire and without defendants' knowledge of plaintiff's alleged injury, or the pendency of her action against Cannaven, these defendants, at their own expense, caused to be erected on the same premises a new building, distinct and different from the old one, and of substantially greater value. By reason of such alleged facts defendants claimed that such new building or premises are not subject to plaintiff's judgment against Cannaven.

Defendants' answer set forth a third defense based upon alleged false testimony given by plaintiff in her action against Cannaven.

This equitable action was filed in the Circuit Court of Cook County on December 23, 1942, and removed to the United States District Court for the Northern District of Illinois, Eastern Division, on June 26, 1943, on the ground of diversity of citizenship. The hearing of evidence in that court began October 1, 1946. The court announced its decision in favor of Gibbons on December 31, 1946, entered its decree accordingly on January 16, 1947, and from that decree this appeal is prosecuted.

Upon the evidence submitted under the second answer appellants contend that the building and premises in which appellee was injured are no longer existent, because 65 per cent of the old building's value was destroyed by fire since her injury, and appellants have erected another building at the same place, using therein whatever materials were usable from the old building. The theory of this answer is that the Illinois statute here involved in using the word "premises" did not intend to include the real estate upon which the old building was located and on which the rebuilt building is now located.

It is quite true that the word "premises" does not have one fixed and definite meaning. It is to be determined always be its context, and it has been held to mean real estate or buildings, or both. 33 Words and Phrases, Permanent Ed., 345, 354. Its meaning is dependent on the circumstances in which it is used, O'Connor v. Great Lakes Pipe Line Co., 8 Cir., 63 F.2d 523; it may include furniture and fixtures, Annapolis Co. v. Wardman, 59 App.D.C. 321, 41 F.2d 115, land and everything appurtenant thereto, Winlock v. State, 121 Ind. 531, 23 N.E. 514, State v. French, 120 Ind. 229, 22 N.E. 108, 735. See also Boon v. Boon, 348 Ill. 120, 180 N.E. 792; Merchants' Co. v. Chicago Exchange Bldg. Co., 210 Ill. 26, 71 N.E. 22, 102 Am.St.Rep. 145; Holbrook v. Debo, 99 Ill. 372; Rignall v. State, 134 Miss. 169, 98 So. 444. We are convinced, under the statute here involved, that not only the building leased to Cannaven, but the appurtenances thereto, and the real estate on which they were located, were rightfully subject to the lien sought herein, if the judgment was not fraudulently obtained. We are further of opinion that under the circumstances here presented that lien was not abrogated by the fire.In any event that part of the old building which was not destroyed, and the ground upon which the old building stood, are still subject to the lien, and we are not informed as to the value of the old building or the lot, or the cost of the new building.

Appellants complain, inferentially at least, of the inequity of plaintiff in failing to inform them, residents of Florida, of her injury and her judgment against their tenant, and permitting them, without knowledge of her injury, to go to the expense of rebuilding. Under the statute now before us, no burden was upon plaintiff to inform defendants of anything before this action was instituted. By this statute, property rented for tavern purposes is burdened with great risk which, it seems, would suggest to the owners the necessity for frequent inquiry of the lessee as to existing or threatened suits, or judgments against them under this statute, at least before rebuilding. No such evidence appears in this record, and we are convinced that under such circumstances the second paragraph of answer is without merit.

We construe the third defense as an attempt to charge appellee with having given perjured testimony be means of which she secured her verdict against Cannaven, and the District Court adopted the same theory. The Statute of Illinois, Ill.Rev.Stat.1947, c. 38, ยง 473, defines a prejurer as one who, having taken a lawful oath in any judicial proceeding, swears wilfully, corruptly and falsely in a matter material to the issue. True, the pleader in this answer does not use the word perjury, or any of its derivatives. However, it is not claimed in any part of the answer that there was any collusion on the part of appellee, and we are convinced that unless it is intended to charge her with perjury in this respect the answer is not good as a defense, for testimony may be false and yet not fraudulent, and unless appellee's testimony was fraudulent this answer is of no avail to them.

This answer alleged that appellee there testified that her former wages had been $20 a week, or $80 a month, when in fact she had received only $75 a month, or $18.75 a week; that after her alleged injury "she had not been able to work, and had worked for maybe five or six weeks time"; that she also "testified that since said injury she had not worked at all steadily with the exception of maybe three or four months"; that she again "testified that she had worked for Sach's Apparel Shop in the summer of 1742 about five or six weeks." The answer further alleged that Gibbons' counsel argued, in substance, to the jury that "Gibbons had been able to work, and had worked, only seven weeks since her alleged injury."

This answer further alleged that after her injury Gibbons worked steadily for her former employer for a period of four and one-half months, and thereafter, but before the trial, worked for at least two other employers (not naming them); and, that upon information and belief, Gibbons, after her alleged injury and before the time of the Cannaven trial, was employed and worked for more than a year's total time.

It was alleged that this testimony of plaintiff was inconsistent and contradictory within itself, and likewise inconsistent with the argument of her counsel; that her testimony and her counsel's argument were misleading to the jury both as to the extent of plaintiff's alleged injury and as to her pecuniary damage, and were so intended by both the plaintiff and her counsel. The prayer is that the judgment should not be enforced against the appellants' premises referred to in the complaint.

In an action of this character it is a defense that the judgment was recovered by fraud, Wall v. Allen, 244 Ill. 456, 91 N.E. 678, 18 Ann.Cas. 175; Wing v. Little, 267 Ill. 20, 107 N.E. 875; Garrity v. Eiger, 272 Ill. 127, 111 N.E. 735, and it is not necessary that the alleged fraud relied upon should take the form of collusion. Wing v. Little, supra. See also Indiana Harbor Belt R.R. Co. v. Calumet City, 391 Ill. 280, 63 N.E.2d 369. Nor is it necessary that the fraud be directed primarily against the owners of the property. Johnson v. Waters, 111 U.S. 640, 4 S. Ct. 619, 28 L. Ed. 547; Mettler v. Warner, 249 Ill. 341, 94 N.E. 522. The right to attack a judgment collaterally for fraud extends not only to matters affecting the ...


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