Grand Pacific Hotel Co. v. Pinkerton

• Decision Date: 24 October 1905
• Citation: 75 N.E. 427,217 Ill. 61
• Parties: GRAND PACIFIC HOTEL CO. v. PINKERTON et al.
• Court: Illinois Supreme Court

217 Ill. 61

75 N.E. 427

GRAND PACIFIC HOTEL CO.

v.PINKERTON et al.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, First District.

Action by William A. Pinkerton and Robert A. Pinkerton, doing business as Pinkerton National Detective Agency, against the Grand Pacific Hotel Company and another. From a judgment of the Appellate Court, affirming a judgment for plaintiff, defendant hotel company appeals. Affirmed.

Francis A. Riddle, for appellant.

Jacob J. Kern, John A. Brown, and D. W. Munn (Lloyd Charles Whitman, of counsel), for appellees.

This is an action in assumpsit, brought on May 24, 1899, by William A. Pinkerton, and Robert A. Pinkerton, partners doing business as Pinkerton National Detective Agency, against the Grand Pacific Hotel Company and Albert E. Glennie, to recover for services performed by the plaintiffs as detectives. The declaration consisted of the common counts only. A plea of non-assumpsit was filed by the Grand Pacific Hotel Company on July 5, 1899, with an affidavit of merits by H. F. Rohde, secretary of the Grand Pacific Hotel Company, and a plea of nonassumpsit was filed on the same day by Albert E. Glennie, together with an affidavit of merits, made by said Glennie. A jury was waived, and the cause was tried by agreement before one of the judges of the superior court of Cook county without a jury. Final judgment was rendered by the superior court of Cook county in favor of the appellees, plaintiffs below, and against the appellant company, for the sum of $1,109.70 as damages, together with the costs and charges. An appeal was taken to the Appellate Court, and the Appellate Court has affirmed the judgment of the superior court, from which judgment of affirmance the present appeal is prosecuted.

It seems that articles in the Grand Pacific Hotel were discovered to be missing from time to time, and it was suspected by some of the parties in the hotel, or in charge of the hotel, that thieves were at work in the hotel. Accordingly the services of the appellees were solicited for the purpose of discovering, if possible, what parties were guilty of the suspected thefts. A contract or arrangement was made by a representative of the appellees at the Grand Pacific Hotel with Glennie on January 31, 1899, for the doing of the work in question by the appellees. The services were performed by the appellees, under the arrangement so made, between January and April, 1899.

The cause was reached for trial on the calendar of Judge Kavanagh, one of the judges of the superior court, on May 21, 1901, and, a jury having been waived by agreement, the cause was submitted to the court, evidence was heard, arguments were made, and the cause was taken under advisement. While the case was thus held under advisement by Judge Kavanagh, and before its decision, it was by some accident placed upon the calendar of Judge Stein, another one of the judges of the superior court of Cook county, and having been called for trial by him on October 4, 1902, was dismissed at plaintiffs' costs for want of prosecution, and judgment entered in favor of the defendants for costs. On November 29, 1902, after the appellees discovered that the cause had been dismissed, they made a motion to amend the record and set aside and vacate the order of dismissal and judgment for costs, which had been entered on October 4, 1902, and this motion was continued until the December term, 1902, of said court. It appears that no entry was made by the clerk showing that the cause was submitted by agreement to the court for trial and that it was taken under advisement by the court. The object of amending the record was to show the facts in this regard. Accordingly, on December 11, 1902, upon the motion of appellees, the record was amended to show the proceedings before Judge Kavanagh on May 21, 1901, as above stated, and thereupon appellees entered their motion to set aside and vacate the order of dismissal and judgment for costs, entered on October 4, 1902, which motion was continued to the January term, 1903, of said court. The order of December 11, 1902, amending the record, recites that on December 10, 1902, the cause came on to be heard upon motion, all parties being present and duly notified, and it was moved that the record be amended, so as to show the amended record of the proceedings theretofore had, ‘which were omitted from said record through error and misprisal,’ and that there were exhibited to the court certain memoranda and notes of testimony taken in shorthand and afterwards transcribed, and that it appeared to the court that on May 21, 1901, said cause was reached for trial before Judge Kavanagh, a jury waived, and cause submitted by agreement to the court, and evidence heard and arguments made, and the cause taken under advisement, and that thereafter, at the same term, briefs and authorities were submitted to the court and a certain written account of the evidence in the case, and that the transcribed shorthand notes of the evidence, being the verbatim testimony of each witness, and the memoranda submitted by the respective parties to the judge for his consideration, were used by him in the consideration of the case, and that the court inspected said evidence and the proofs so submitted, and thereupon it was ordered and adjudged, in said order so entered on December 11, 1902, that the record was thereby amended and corrected to show the corrected proceedings above set forth, and that said motion be sustained, and that the said order amending the proceedings be entered as of May 21, 1901, so as to show that a jury was waived by the express agreement of the parties and that the cause was fully tried and submitted as in said memoranda and this order described, and that the other proceedings, as shown by said memoranda, exhibits, and shorthand notes of testimony, be spread upon the records of the court, and be extended as of May 21, 1901. Subsequently, on June 20, 1903, the following order was entered: ‘On motion of plaintiff's attorney it is ordered that the order of dismissal and judgment for costs, entered herein of record on the 4th day of October, A. D. 1902, be, and is hereby, set aside and vacated, and said cause reinstated and replaced upon the several dockets of this court.’

On June 22, 1903, the appellant, the Grand Pacific Hotel Company, by leave of court filed a written motion to strike the testimony of the appellees from the case and find the issues for defendant, upon the grounds that appellees had produced no testimony pertinent or competent to maintain said cause of action, and that all of the testimony offered by them was incompetent and immaterial, and did not tend to prove their cause of action; that the only testimony offered by them consisted of the testimony of alleged agents of appellant, and that they did not produce any competent evidence to prove that Albert E. Glennie was the manager, agent, or employé of the hotel company, with authority to make any contract with appellees on its behalf; and that no evidence was offered sufficient to sustain any finding against the hotel company. On July 3, 1903, an order was entered by the court overruling said motion to strike the testimony of appellees from the case. On July 25, 1903, a judgment was entered in favor of appellees against both defendants, the Grand Pacific Hotel Company and Albert E. Glennie, for $1,109.70 and costs, reciting that on the agreement of the parties ‘now here made in open court this cause is submitted to the court for trial without a jury, and the court now here, after hearing all the evidence adduced, the arguments of counsel, and being fully advised in the premises, finds the issues for the plaintiff,’etc., to which the defendants excepted and entered their motion for a new trial, which motion was overruled and a new trial was denied; and the judgment also shows upon its face that the defendants entered their exceptions, and prayed an appeal to the Appellate Court, which was allowed upon their filing their appeal bond in the sum of $2,000 within 60 days from July 25, 1903, and their bill of exceptions within 60 days from said date. On August 1, 1903, the appellant, the Grand Pacific Hotel Company, entered its motion to set aside and vacate the judgment of July 25, 1903, which motion was continued for hearing until the August term, 1903, of said court. On September 22, 1903, it was ordered that the time for filing a bill of exceptions be extended 10 days.

On September 26, 1903, a second judgment was entered in favor of appellees against the Grand Pacific Hotel Company for $1,109.70 and costs, to which the appellant company excepted and prayed an appeal to the Appellate Court, which was allowed upon its filing an appeal bond in the sum of $2,000 and its bill of exceptions within 10 days from September 26, 1903. The judgment of September 26, 1903, recited as follows: ‘On the agreement of the parties to this suit now here made in open court, it is ordered that the order of judgment, heretofore entered herein on July 25, A. D. 1903, for the sum of $1,109.70, and the appeal order of the same date, be, and is hereby, set aside and vacated and said cause reinstated, and on like 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. And the court now here, after hearing all the evidence adduced, the arguments of counsel, and being fully advised in the premises, finds the issues for the plaintiffs and assesses the plaintiffs' damages,’ etc., at the sum above named. The judgment shows upon its face that appellant, the hotel company, entered a motion for a new trial, which was overruled, and new trial denied, and exception taken, and that said hotel company entered its motion in arrest of judgment, which motion was also overruled and denied, and to which the hotel company, the appellant here, excepted....