Cook County Brick Co. v. Wm. Bach & Sons Co.

Mr. Justice Sears delivered the opinion of the court: The facts and the law controlling are substantially the same in this appeal as in the appeal in the case of Cook Country Brick Company v. La Bahn Brick Company, 92 Ill. App. 526. The appeal in that case was from a like order of injunction and the bill of complaint in that case set up the same agreements and leases as are here involved. The statement of facts and the decision of this court in that case, as announced in the opinion of Mr. Presiding Justice Adams, is referred to as presenting the grounds of a like determination in this appeal. If there be any difference in the effect of the allegations in the two bills of complaint, it is that by this bill it is made more clearly to appear that the purpose of the engagements between appellant and appellee and others, was to control and enhance the price of brick in the locality in question, and that the effect of a carrying out of the compact would necessarily be to increase the price of brick. The fact of a payment back to all the companies concerned, as stockholders in the appellant, of the earnings of appellant in the form of dividends, would not operate to change the status so far as the principle governing is concerned. For it appears that certain of the companies included in the compact may not be engaged in manufacture at all, and yet as shareholders would receive a part of the dividends, thus making the cost of producing necessarily greater to those companies actually manufacturing and paying to appellant the amounts required by the terms of their contract. Perceiving no difference in the principle governing we hold that the determination of this appeal upon the substantial questions presented, is governed by the decision in Cook County Brick Company v. La Bahn Brick Company. 92 Ill. App. 526. There remains only to consider the defect in the jurat. It is strenuously contended by counsel for appellant that the right to the order of injunction must be determined by the condition of the bill of complaint and its verification at the time of the issuing of the order, and the following authorities are cited in support of this contention: L. S. & M. S. Ry. Co. v. C. & W. I. Ry., 100 Ill. 21; Stirlen v. Neustadt, 50 Ill. App. 378; Barnard v. Dettenmaier, 89 Ill. App. 241. In L. S. & M. S. Ry. Co. v. C. & W. I. Ry. Co., supra, the question determined was as to whether an order entered after an appeal had been perfected was brought up for review by the appeal. The order was not in relation to an amendment. In Stirlen v. Neustadt, supra, the question ivas as to the sufficiency of the matter sworn to in the affidavit, and it was held that it was insufficient in substance. The court said in that case: “ It may be that omissions in matters of form can be supplied nunc pro tunc after appeal, in order to perfect the record, but a new case can not be made.” • In Barnard v. Dettenmaier, supra, the court declined to consider an order amending the judgment in a substantial manner, the amendment having been made while the case was pending for review upon writ of error. From these decisions it may be concluded that so far as matters of substance are concerned, matters going to the right to relief and essential thereto, the defects existing when the order issued, can not thereafter and after an appeal, be remedied by amendment so as to relate back and support an order which was erroneously issued. But where no defect of substantial character exists and a defect of form only is in question, the rule does not apply. We have, then, to inquire whether the defect in this jurat was a defect of form only, or a matter of such substantial importance as to make the bill of complaint insufficient to sustain the order. We are of opinion that the defect was in a matter of form only. Doty v. Colton, 90 Ill. 453; Cox v. Stern, 170 Ill. 442. In the former case the court said : “ In the other respects indicated, the affidavit was, no doubt, defective in some merely formal matters, but plaintiff obtained leave of court for the notary to amend the jwrat, according to the fact, as to the day on which the affidavit was sworn to, and also, leave for the notary to attach his official seal to the attestation, which he did. The amendments allowed were merely formal, and did not affect the substance of the affidavit. The mistake in the date of the attestation was a mere clerical error, apparent on the face of it.” In the latter case the court said: “ It is next contended that the instrument is inoperative as an affidavit because the jurat as to the oaths of the Schoenfields is not signed or authenticated in any way. But ths jurat of the officer is not the affidavit, nor strictly speaking, any part of it. It is simply evidence of the fact that the affidavit was properly sworn to by the affiant. It has been frequently held, both in this State and elsewhere, that affidavits for attachment are not void because the clerk or officer failed to affix his signature to theywazl. We are of the opinion that the jurat or certificate of the officer administering the oath is not necessarily part of the affidavit, but that it may be shown aliunde that the statements contained in the instrument were in truth and in fact made, as they purported to be, on oath duly administered by an officer duly authorized. The statute prescribes no form for the affidavit, and makes no provision as to the form in which the evidence of the oath shall be preserved or made to appear, but only requires that an affidavit shall be filed,” etc. The motion to strike out the supplemental record is therefore denied. All other questions relating to the merits of the appeal are considered and disposed of in Cook County Brick Co. v. La Bahn Brick Co. The order is affirmed.