Callahan v. Healy, 209 Ill. App. 637 (1918)

March 12, 1918 · Illinois Appellate Court · Gen. No. 23,193
209 Ill. App. 637
Mary Callahan et al., Appellants, v. John J. Healy et al., Appellees

Mary Callahan et al., Appellants, v. John J. Healy et al., Appellees.

Gen. No. 23,193. (Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding.

Heard in the Branch Appellate Court at the March term, 1917.

Reversed and remanded with directions.

Opinion filed March 12, 1918.

Statement of the Case.

Bill by Mary Callahan and others, complainants, against John J. Healy, Mrs." Johh J. Healy, John Ryan and Gertrude Bonfield Ryan, defendants, brought under section 10 of the Dramshop Act (J. & A. ¶ 4610), to subject certain premises belonging to defendants John J. Healy and Gertrude B. Ryan to the lien of a judgment obtained under section 9 of the Dramshop Act (J. & A. ¶ 4609) against certain keepers of dramshops by whom said premises were leased and used as dramshops. From a decree dismissing the bill, complainants appeal.

Samuel W. Norton and William C. Dunn, for appellants.

Litzinger, Healy & Reid, for appellees John J. Healy and Mrs. John J. Healy.

Burton, Kannally & Megan, for appellees John Ryan and Gertrude B. Ryan.

*638Abstract of the Decision.

1. Intoxicating liquobs, § 202 * —when declaration in action 6y wife and children of drunkard against saloon keepers for loss ofy support is sufficient. A declaration by a wife and children in an action under section 9 of the Dramshop Act (J. & A. If 4609), which alleges that defendants kept dramshops and sold and .gave intoxicating liquors to the husband and father of complainants which, in whole or in part, caused him to be and become, during a specified time, habitually intoxicated, in consequence of which he squandered his money and failed and neglected to support plaintiffs, thereby injuring them in their means of support, states a cause of action.

2. Intoxicating liquobs, § 168*—what is purpose of section 9 of Dramshop Act. The purpose of section 9 of the Dramshop Act (J. & A. If 4609) is to make every person who sells intoxicating liquors responsible for injury proximately caused thereby to other persons.

3. Intoxicating liquobs, § 202*—what are necessary allegations in action under section 9 of Dramshop Act. The necessary allegations in a declaration under section 9 of the Dramshop, Act (J. & •A. If 4609) are that defendants were either directly or indirectly engaged in the liquor business, that defendants sold or gave intoxicating liquor to some person named and that plaintiffs thereby sustained injury in some manner indicated by the statute.

4. Intoxicating liquors, § 199*—what election persons have to sue for violation of section 9 of Dramshop Act. Under section 9 of the Dramshop Act (J. & A. 1f 4609), the plaintiff in an action thereunder may elect whether he will sue alone the person giving or selling the liquor or whether he will join persons permitting their premises to be used for selling.

5. Intoxicating liquors, § 260*—when judgment under section 9 of Dramshop Act conclusive. Unless fraud or collusion is made to appear, the amount of the judgment obtained in a suit against the seller under section 9 of the Dramshop Act (J. & A. If 4609), may not be contested in a proceeding under section 10 of the Act (J. & A. If 4610), to subject the property used by the seller to the satisfaction of the judgment, but complainant in the latter proceeding must prove, and the owner or lessor of such property is allowed to controvert, all the facts which it is claimed create the lien.

Mr. Justice Matchett

delivered the opinion of the court.

*6396. Intoxicating liquobs, § 260 * —what complainant must prove in proceeding to subject property to satisfaction of judgment. In a proceeding under section 10 of the Dramshop Act (J. & A. If 46Í0) to subject property to the satisfaction of a judgment obtained under section 9 of the Act (J. & A. If 4609), the questions whether the property was rented or leased to be used or occupied in whole or in part for the sale of liquor, whether defendant knowingly permitted it to be so used or. occupied and whether the judgment under section 9 (J. & A. jf 4609) has been' obtained against the person occupying the premises which it is sought to subject are questions of fact, the burden of showing which is on complainant.

7. Intoxicating liquobs, § 260*—when declaration not defective in proceeding to subject property to satisfaction of judgment. A failure to allege in the declaration in an action under section 9 of the Dramshop Act (J. & A. If 4609), the selling or giving of the liquor upon the premises whicli it is sought to subject, under section 10 of the Act (J. & A. jf 4610), to the lien of the judgment recovered under section 9, does not defeat the proceeding under section 10.