City of Chicago v. Chicago S.S. Lines, Inc.

• Decision Date: 21 December 1927
• Docket Number: No. 16564.,16564.
• Citation: 328 Ill. 309,159 N.E. 301
• Parties: CITY OF CHICAGO v. CHICAGO S. S. LINES, Inc., et al.
• Court: Illinois Supreme Court

328 Ill. 309

159 N.E. 301

CITY OF CHICAGO

v.CHICAGO S. S. LINES, Inc., et al.

No. 16564.

Supreme Court of Illinois.

Dec. 21, 1927.

Action of forcible detainer by the City of Chicago against the Chicago Steamship Lines, Inc., and another. From an order of the Appellate Court, dismissing a writ of error to review a judgment of the municipal court of Chicago for plaintiff, defendant named appeals.

Affirmed.

Appeal from Third Branch of Appellate Court, First District, on Writ of Error to the Municipal Court of Chicago; Daniel P. trude, Judge.

Harry C. Barnes, of Chicago (Alan C. McIlvaine, of Chicago, of counsel), for appellant.

Francis X. Busch, Corporation Counsel, of Chicago (Albert H. Veeder, of Chicago, of counsel), for appellee.

DUNCAN, J.

The city of Chicago, appellee, brought an action of forcible detainer in the municipal court of Chicago against the Chicago Steamship Lines, Inc., appellant, and the Rutland Lake Michigan Transit Company, for possession of the east 140,000 square feet of floor space on the first floor of the south shed of the municipal pier, with docks alongside, in the city of Chicago, and also a claim for $10,000 for use and occupation of the floor space aforesaid. The cause was tried before the court without a jury, and judgment was rendered in favor of the appellee against both defendants for possession of the premises and for damages in the sum of $7,199, and execution was awarded therefor. The judgment for rent or damages against both defendants was vacated, and judgment for said sum was entered against appellant only, and that judgment was immediately paid and the clerk directed to satisfy the same of record. The motion of appellant to vacate judgment for possession was denied. A writ of error was sued out of the Appellate Court for the First District to review the judgment of the municipal court. The city of Chicago entered its appearance in the Appellate Court, and thereafter an order of severance was entered as to the Rutland Lake Michigan Transit Company, and appellant was granted leave to prosecute a writ of error as sole plaintiff in error. The city of Chicago thereafter filed a motion to dismiss the writ of error on the ground that the Appellate Court was without jurisdiction to entertain the same, which motion was allowed and the writ dismissed. The Appellate Court granted a certificate of importance and an appeal to this court, which has been perfected by appellant.

The facts and questions of law submitted to the trial court are stipulated in the record, from which it appears that on recommendation of the harbor board the city council of Chicago by ordinance authorized the commissioner of public works to enter into a lease on behalf of and in the name of appellee, with appellant, for the use of the 140,000 square feet on the first floor of the south freight and passenger buillding on the municipal pier for a period of five years thereafter, at an annual rental of $28,000. The April rent of $2,333.33 for the year 1923, the first month of the lease, was paid. The rent for the months of May and June of that year was tendered and was refused by the city because of an opinion rendered by the corporation counsel to the commissioner of public works to the effect that the lease was ultra vires and void, and that acceptance of the rent under the lease might prejudice the city's right in a proceeding for possession. The city offered to accept the amount so tendered for use and occupation of the premises without prejudice to its contention that the lease was void, but payment under such conditions was refused by appellant. The city thereafter brought this suit for possession on the theory and on the claim that the lease was ultra vires and void. Appellant admitted in open court that it owed appellee $7,199 for rent and electricity and consented that judgment be entered against it for that sum. It contended that this suit was not rightfully brought, because the city served a 5-day notice (the minimum time allowed by statute) instead of a 30-day notice, as provided in section 13 of the lease, to the effect that the lessee agrees that if default shall be made by it in the payment of any of the rent provided for upon the day the same becomes due and payable, and such default continues 30 days after notice thereof in writing by the lessor or its agents or attorneys to the lessee, etc., it shall and may be lawful for the lessor, at its election, to declare said demised term ended, etc. Appellee contended that by virtue of section 16 of the lease its rights were cumulative, and that it was not precluded from proceeding under the 5-day limit fixed by the statute, and the lower court so held and entered the judgment aforesaid after overruling appellant's motion for a new trial and in arrest of judgment.

[1] The controlling question for decision by this court is whether or not appellant had the right, under the law of this state, to have the judgment of the municipal court reviewed in the Appellate Court by writ of error. At common law if any one had a right of entry he was permitted to enter with force and arms and to retain his possession by force, where his entry was lawful. 3 Bacon's Abridgment by Gwillim, p. 248. It is also stated by this author that this right of entry by the lords created great inconvenience by their arming their tenants and in a manner encouraging those in mischief, who were always too forward in rebellions and contentions in their neighborhood; also that it gave an opportunity to powerful men, under the pretense of feigned titles, forcibly to eject their weaker neighbors. To remedy these evils several statutes were passed, purely criminal in their main features, the first being that of 5 Richard II, c. 8, which provided:

‘That none from thenceforth should make any entry into any lands and tenements but in cases where entry is given by law, and in such cases not with strong hand nor with multitude of people but only in a peaceable and easy manner; and if any man from henceforth should do the contrary, and thereof be duly convict, he should be punished by imprisonment of his body and thereof ransomed at the king's will.’

Said statute, as stated in the side notes to Bacon's Abridgment, vol. 3, p. 249, gave no speedy remedy, leaving the party injured to the common course of proceeding by way of indictment, and made no provision at all against forcible detainer. It was followed later by 15 Richard II, c. 2, which provided:

That said statute, and all others against forcible entries, should be duly executed; ‘and farther, that at all times that such forcible entry shall be made and complaint thereof cometh to the justices of the peace, or to any of them, that the same justices or justice take sufficient power of the county and go to the place where the force is made, and if they find any that hold such place forcibly, after such entry made, they shall be taken and put into the next gaol, there to abide, convict by the record of the same justices or justice, until they have made fine and ransom to the king.’

As stated by the author, this latter statute gave no remedy against those who were guilty of forcible detainer after a peaceable entry, or against those who were guilty of both a forcible entry and detainer, if they were removed before the coming of a justice of the peace, and it gave the justice of the peace no power to restore the party to his possession. Such power to restore the ousted party to his possession was later given by 8 Henry VI, c. 9, in this language:

‘That though such persons making such entries be present, or else departed before the coming of the said justices or justice, notwithstanding the same justices or justice in some good town next to the tenement so entered, or in some other convenient place, according to their discretion, shall have, and either of them shall have, authority and power to inquire by the people of the same county, as well of them that makes such forcible entries in lands and tenements, as of them which the same held with force; and if it be found before any of them that any doth contrary to this statute, then the said justices or justice shall cause to reseize the lands and tenements so entered and holden as aforesaid, and shall put the party so put out in full possessionof the same lands and tenements so entered or holden as before.’

This statute also gave the party aggrieved a remedy by assize of novel disseizin or by an action of trespass to recover treble damages for being ousted by force. It appears from the authorities cited by the author in his side notes, that to said actions the defendant might plead in bar thereof that he had good title and right of entry before his unlawful entry, if in his plea he further traversed the entry by force. If the matter in bar was found for the defendant-that is, that he had good title at law and right of entry-he prevailed in the suit for the reason that the party ousted should not recover if he had no right to damages, but if the plaintiff prevailed then the force must be inquired of, and treble damages assessed to plaintiff in case the plaintiff succeeded on that issue. The statute of 8 Henry VI further provided:

‘That they who keep their possessions with force in any lands and tenements whereof they or their ancestors, or they whose estate they have in such lands and tenements, have continued their possession by three years or more, be not endamaged by force of this statute.’

This last provision is further enforced and explained by 31 Elizabeth, c. 11, which provides:

‘That no restitution upon any indictment of forcible entry or holding with force be made to any person if the person so indicted has had the occupation or been in quiet possession for the space of three whole years together next before the day of such indictment so found and his estate therein not ended, which the party indicted may allege for stay of restitution, and restitution to stay till that be...