Patterson v. Johnson

• Decision Date: 21 February 1905
• Citation: 214 Ill. 481,73 N.E. 761
• Parties: PATTERSON et al. v. JOHNSON.
• Court: Illinois Supreme Court

214 Ill. 481

73 N.E. 761

PATTERSON et al.

v.JOHNSON. ^*

Supreme Court of Illinois.

Feb. 21, 1905.

Appeal from Appellate Court, First District.

Bill in chancery by Amanda S. Johnson against Clara Haley Patterson and others. From a judgment of the Appellate Court (114 Ill. App. 329) affirming a decree for plaintiff, defendants appeal. Affirmed.Bolen & Stewart, for appellants.

M. G. Gilbert and O. J. C. Wray (A. M. Pence, of counsel), for appellee.

This was a bill in chancery filed in the superior court of Cook county by the appellee against the appellants to enjoin the appellants from removing a wooden building used as a blacksmith shop from lot 2 to lot 6 in James F. Haley's Subdivision of lot 2 of Assessor's Division of the northwest quarter of the southeast quarter of section 20, town 40, range 14 east, in the city of Chicago, county of Cook, and state of Illinois. The block in which said lots are situated is triangular in form, and is bounded by Lcark street, Sheffield avenue, and Addison street, and the appellee is the owner of lots 7, 8, 35, and 36 in said block; lots 7 and 8 having a frontage of 50 feet on Sheffield avenue, and lots 35 and 36 a frontage of 50 feet on Clark street, upon each of which frontages, at the time of the filing of the bill, appellee was erecting a six-flat stone apartment building, with modern improvements, which would be completed and ready for occupancy by June 15, 1902. Lot 6 adjoins lots 7 and 36 upon the south, and is 125 feet long, and has a frontage of 25 feet on botg Clark street and Sheffield avenue. The bill averred that lots 2, 3, 4, and 5 belong to appellant Patterson, and lot 6 to appellant Nelson; that said building is 75 feet long, 25 feet wide, and 22 feet high; that it has been standing 15 years, is old and dilapidated, is constructed wholly of combustible material, and is of little value, and has depreciated more than 50 per cent. of its original cost by means of wear and tear, and from the effect of the elements or otherwise; that its removal to lot 6 will depreciate the value of appellee's property, expose her buildings to increased danger from fire, increase the rate of insurance thereon, and lessen their rental value-and set up section 51 of an ordinance of the city of Chicago passed March 28, 1898, and then in force, which provides that, before proceeding with the removal of a frame building, a permit must be first obtained by the owner or his agent, upon written application, from the commissioner of buildings of the city, and that such permit shall be granted if said building has not been damaged to an extent greater than 50 per cent. of its original value by fire, wear, tear, and the action of the elements, or otherwise, provided the applicant first obtain the written assent to such removal by the persons owning a majority of front feet of lots in the same block in which it is proposed to locate said building, also the assent of a majority of persons owning front feet opposite the proposed location, and within 150 feet of the same, which ordinance, it was provided, should not apply to ‘any person removing a building upon his own premises and not upon the premises of any other person, or upon any street, alley or other public place, in making such removal.’ It was also averred that on May 15, 1902, one Sheeler filed with the commissioner an application for a permit to remove said building; that said application was not signed by Patterson or Nelson, or their agents, and did not state fully and clearly the work contemplated to be done thereon, and that said application was not assented to by a majority of the persons owning frontage of lots in the same block in which it was proposed to locate said building, and a majority of persons owning frontage opposite said proposed location, and within 150 feet of the same, and that the commissioner was without power or authority to grant a permit to remove said building to appellants or their agents; and that the appellants had no right to remove said building.

The appellant Nelson disclaimed any interest in said lot 6, and the appellant Patterson filed an answer in which she averred she was the owner of lots 2, 3, 4, 5, and 6 in said block. Thereupon the appellee, by leave of court, amended her bill by setting up sections 57 and 58 of said ordinance. Section 57 provides that it shall not be lawful to repair, reconstruct, or remove any frame building which has been injured more than 50 per cent. of its original value by wear and tear, by the effect of the elements, or by fire; and section 58 provides that a frame building shall not be erected nearer than one foot to any line of the lot upon which it is built, street and alley lines excepted. On the same day the appellee, without ruling the appellants to answer the said amendment, filed a replication, and thereupon the case was referred to the master to take proofs and report his conclusions. After the proofs had been closed, the appellee, by leave of court, again amended her bill, which amendment was unsworn to, by setting up section 49 of an ordinance of said city, as amended January 27, 1902, which is as follows: ‘It shall not be lawful for any person, firm or corporation to locate, build, construct or maintain on any street or alley * * * in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, any building for a * * * blacksmith shop * * * without the written consent of a majority of the property owners, according to frontage, on both sides of such street or alley. Such written consent shall be obtained and filed with the commissioner of buildings before a permit is issued for the construction or keeping of such building, provided that in determining whether two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, any building fronting upon another street and located upon a corner lot shall not be considered’-and averred that said frame building was used exclusively as a blacksmith shop, and would continue to be used as such. This amendment was not answered; but the master thereafter prepared his report, finding the issues in favor of the appellants, and recommended that the bill be dismissed for want of equity. The master overruled objections to his report, which were renewed by way of exceptions and sustained by the court, and a decree was entered in favor of appellee in accordance with the prayer of her bill as amended, which decree was affirmed by the Appellate Court for the First District, and an appeal has been prosecuted to this court.

HAND, J. (after stating the facts).

It is first contended that the court erred in permitting the appellee to amend her bill by incorporating therein sections 57, 58, and 49 of certain ordinances of the city of Chicago, on the ground that said amendments are inconsistent with and repugnant to the bill as originally filed. We do not agree with this contention. The bill was filed to restrain the appellants from placing said frame blacksmith shop on lot 6, as it was claimed to remove the same from lot 2 to lot 6 would be in violation of an ordinance of the city of Chicago; and section 51 of an ordinance passed March 28, 1898, was pointed out as the section which would be violated. After the answers of appellants came in, and it appeared lot 6 belonged to Patterson, who was also the owner of lots 2, 3, 4, and 5, and that a permit was not necessary from the commissioner of buildings, under said section 51, for Patterson to remove the building, as in removing it she would not pass over any land other than her own, or over any public street, alley, or public place, the appellee amended her bill by pointing out therein that the building was being removed in violation of sections 57 and 58 of said ordinance, and section 49 of an ordinance as amended January 27, 1902. The object of the bill and the basis of the relief sought thereby were the same after the amendment as before; that is, that the building was being removed in violation of certain sections of the ordinances of the city of Chicago. We do not think the amended bill set up a new cause of action, or that the grounds of relief relied upon in the amended bill were different from or inconsistent with the grounds relied upon in the original bill. In Bauer Grocer Co. v. Zelle, 172 Ill. 407, on page 412, 50 N. E. 240, it was said: ‘The subject-matter of the amended bill and the relief sought thereunder were germane to the original bill, and the evidence before the court disclosed the necessity and propriety of amending and broadening the pleadings. It was clearly within the discretion of the chancellor to allow the amended bill to be filed.’ In Papin v. Goodrich, 103 Ill. 86, the bill as filed prayed for a specific performance of the contract, but, by a subsequent amendment, made by leave of court, the prayer was changed to that of cancellation of the contract. On page 94 it was said: ‘We do not see why * * * the amendment was not properly allowed. The defendants had no vested rights in the phraseology or form of the bill.’

It is also urged that it was error to permit the last amendment, setting up section 49 of the ordinance, as the amendment was not sworn to. It has been held it is proper to allow amendments to a sworn bill where such course tends to prevent a failure of justice. Thomas v. Coultas, 76 Ill. 493. The ordinance had been admitted in evidence before the master, without objection, prior to the time the amendment was made, and fully supported the motion to amend, and the amendment was made that the allegations of the bill might correspond with the proofs. While a proper practice would have required the amendment to have been sworn to, it was not reversible error to permit the bill to be amended without the amendment being sworn to, in view of the condition of the record at the time the amendment was made. In Bauer Grocer Co. v. Zelle, on ...