text:
    Joseph J. McCarthy, Appellee, v. City of Chicago, Appellant.
    Gen. No. 21,672.
    1. Appeal and error, § 16

      —when right of appeal exists. The right of appeal is a statutory creation and did not exist at common law.
    2. Appeal and error, § 626

      —when appeal from interlocutory order or decree must he taken. The right to appeal from an interlocutory order or decree is based entirely on Hurd’s Rev. St., sec. 123 (J. & A. If 8661), providing that the appeal must be taken within thirty days from the entry of the decree or judgment, and be perfected in the Appellate Court within sixty days from such entry.
    3. Appeal and error, § 25

      —when Appellate Court exclusive jurisdiction of appeals. The Appellate Court has exclusive jurisdiction of appeals under Hurd’s Rev. St., sec. 123 (J. & A. If 8661), from interlocutory orders and decrees.
    4. Appeal and error, § 669

      —when bond must be filed as basis for appeal. The only manner in which an appeal can be taken from an interlocutory order or decree under Hurd’s Rev. St., sec. 123 (J. & A. 1f 8661), is by filing a proper bond approved by the clerk of the court where the proceeding is heard.
    5. ' Appeal and error, § 637

      —when no prayer for an appeal necessary. In order to appeal from an interlocutory order or decree under Hurd’s Rev. St., sec. 123 (J. & A. If 8661), no prayer for an appeal is necessary.
    6. Appeal and error, § 642

      —when no conditions may be fixed for allowance of appeal. On an appeal from an interlocutory order a decree under Hurd’s Rev. St., sec. 123 (J. & A. jf 8661), no conditions can be fixed on which the appeal is to be allowed.
    7. Municipal corporations, § 1237

      —when may appeal mthout giving bond. Section 98 of the Practice Act (J. & A. If 8635), providing that municipal corporations may in all cases appeal or sue out a writ of error without giving bond, includes appeals from interlocutory orders or decrees.
    8. Municipal corporations, § 1237

      —when must comply strictly with statute granting right to• appeal. The fact that under section 98 of the Practice Act (J. & A. jf 8635), municipal corporations are exempted from giving a bond in order to appeal from an interlocutory order or decree under section 123 of the same Act (J. & A. jf 8661), does not exempt such municipal corporations from strict conformity in other respects with the statute granting the right to appeal.
    9. Appeal and error, § 669

      —when bond must be filed in Appellate Court on appeal from interlocutory order. The meaning of Hurd’s Rev. St., sec. 123 (J. & A. 1f 8661), providing that an appeal from an interlocutory order or decree must be taken within thirty days, is that the bond approved by the clerk of the lower court must be filed in the Appellate Court within thirty days from the entry of the order or decree appealed from.
    10. Appeal and error, § 646

      —how appeal from interlocutory order or decree perfected. An appeal from an interlocutory order or decree under Hurd’s Rev. St., sec. 123 (J. & A. If 8661), requiring that the appeal he perfected in the Appellate Court within sixty days from the entry of the order or judgment appealed from, is perfected only by the filing in the Appellate Court within sixty days from the entry of the order or decree appealed from a transcript of the record from which the correctness of the order complained of can he determined.
    11. Appeal and error, § 270

      —when appeal from interlocutory order may be talcen. Section 100 of the Practice Act (J. & A. If 8637), relating to appeals from final judgments, orders and decrees, has no application to appeals from interlocutory orders or decrees under section 123 of the same Act (J. & A. If 8661).
    12. Appeal and error, § 270

      —what is purpose of statute allowing appeal from interlocutory order. Section 123 of the Practice Act (J. & A. If 8661), providing for appeals from interlocutory orders and decrees, was intended to secure a quick and summary review of such orders or decrees.
    13. Appeal and error, § 624

      —when motion to file supplementary record too late. On an appeal from on interlocutory order or decree under section 123 of the Practice Act (J. & A. If 8661), a motion made more than sixty days after the entry of the order or decree appealed from to file a supplementary record will be denied.
    14. Appeal and error, § 1129

      —when appeal dismissed for insufficiency of record. An appeal to the Appellate Court will- be dismissed if the record on file is not sufficiently complete to present the errors complained of for the determination of the court.
    15. Appeal and error, § 1120

      —when record insufficient for purpose of review. On appeal from an interlocutory order or decree under section 123 of the Practice Act (J. & A. 1f 8661), a record containing only a copy of the decree appealed from without assignment of errors presents no question for the determination of the Appellate Court, and a motion to dismiss such appeal must he allowed.

      16. Costs, § 67

      —when statutory damages not allowed upon dismissal of appeal. On an appeal from an interlocutory decree under section 123 of the Practice Act (J. & A. If 8661), held that statutory damages, on dismissing the appeal because of insufficiency of the record, should not be allowed.
    17. Appeal and error, § 624

      —when motion suggesting diminution of record and ashing leave to file supplemental record improper. On appeal from an interlocutory decree under section 123 of the Practice Act (J. & A. IT 8661), where a short record is on file in the Appellate Court within the time fixed by the statute for perfecting the appeal, appellant has no right to make a motion suggesting the diminution of the record and asking leave to file a supplemental record.
    18. Appeal and error, § 1143

      —when motion for leave to file supplemental record must he made on appeal from final judgment. In cases of appeals from final judgments, orders or decrees, the record must be filed in the Appellate Court not later than the second day of the term succeeding the rendition of the judgment, order or decree appealed from, and if a short record is then on file in the Appellate Court, a motion suggesting the diminution of the record and asking leave to file a supplemental record must be made on or before the second day of such term.
    19. Appeal and error, § 864

      —when revietoing court no jurisdiction to hear appeal. Failure of appellant to comply with the statute in regard to the filing of the record on appeal divests the reviewing court of jurisdiction to hear the appeal, notwithstanding any acts or stipulations of the parties, or orders of court.
    20. Appeal and error, § 1143

      —when motion for leave to file supplemental record allowed in vacation. A motion suggesting the filing in the Appellate Court of a short record on appeal and asking leave to file a supplemental record may be allowed in vacation.
    21. Appeal and error, § 1138

      —when dismissal of appeal does not affect merits of proceeding. The dismissal of an appeal from an interlocutory order or decree does not affect the merits of the proceeding in which the order or decree appealed from was entered.
    Interlocutory appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.
    Heard in the Branch Appellate Court.
    Appeal dismissed.
    Opinion filed January 29, 1916.
    Statement by the Court. This is an appeal from an interlocutory order of injunction entered June 5, 1915, in the Superior Court of Cook county. The order in question enjoined the City of Chicago, hereinafter referred to as the appellant, from interfering with the exhibition of a moving picture known as “The Biith of a Nation.”
    Richard S. Folsom:, for appellant; George L. Reker and Louis B. Anderson, of counsel.
    Charles J. Trainor, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Pam

delivered the opinion of the court:

On July 3, 1915, there was filed in the office of the clerk of the Appellate Court for the first district what is designated as a short record, consisting of a copy of the injunction order appealed from.

On September 14, 1915, there was filed in the office of the clerk of the Appellate Court, without any order issuing from this court, what purports to be a complete record of the proceedings leading up to and including the granting of the injunction, save the transcript of the interlocutory order of injunction which was contained in the short record filed July 3, 1915, as above stated.

On October 20th a motion was made in this court by appellant for “an order nunc pro tunc as of September 14, 1915, suggesting the diminution of the record, and granting leave to file the addition thereto, instanter as of September 14, 1915.” In support of said motion there were filed two affidavits for the appellant, and a stipulation entered into by both parties. In said affidavits it was stated that the reason he did not present his motion earlier was that he relied on a stipulation under date of September 8th, by which stipulation appellee agreed that the complete record might be filed instanter, and as additional reasons: (1) The fact that the judge before whom the cause was heard, was unable to attend court for several weeks; and (2) that the solicitors for appellee required considerable time in which to examine the certificate of evidence; and (3) that he endeavored to file an additional record by July 15th, but was informed that the Appellate Court was about to adjourn for the summer vacation, wherefore the cause could not be heard until the October term of said court.

In opposition to this motion, appellee filed counter suggestions on October 21, 1915, which counter suggestions also served as suggestions in support of a motion in behalf of appellee, to dismiss the appeal for the reason “that said appeal was not perfected within the time provided by statute, and the court, at the present time, has no jurisdiction to hear or determine the same.”

In support of this contention, appellee urges that an appeal from an interlocutory order being purely a statutory right, the provisions of the statute under which said appeal was taken, must be strictly complied with, hence conformity to the statute is necessary, and the failure to do so deprives the court of jurisdiction.

Appellee further suggests that the reasons set forth in the affidavits submitted by appellant cannot change the duty of the appellant to perfect its appeal in conformity with the statute.

Appellant, in opposition to the appellee’s motion to dismiss the appeal, filed counter suggestions in the form of an additional affidavit, wherein were set forth the same facts as in the affidavit supporting appellant’s motion made on October 20th to suggest the diminution of the record and for leave to file the addition thereto instanter, as of September 14th.

In said affidavit it was also set forth that the certificate of evidence was not filed until the 19th day of July, and that appellant was unable to secure the record from the clerk of the Superior Court until July 21st, and that on that day he went to the Appellate Court and attempted to make a motion suggesting the diminution of the record and for leave for additional time to file a supplementary record, but was informed that the court was not in session and no judge present before whom such motion could be made; and the further fact that on September 28th, 1915, a stipulation was entered into whereby appellee was given additional time in which to file his briefs, and that he did file same on October 5th thereafter; that this latter fact was relied on by appellant to explain why counsel for appellant did not make that motion on the opening day of the October term of the Appellate Court instead of on the 20th day of October, 1915.

Upon this state of the record we must determine the motions of the respective parties.

The right of appeal is a statutory creation and did not exist under the common law. Until 1887 no appeal would lie from an interlocutory order, but only from a final judgment, order or decree. On June 14th of that year the General' Assembly passed an act permitting an appeal from an interlocutory order of court concerning injunctions and receivers, the provisions of which were identical with those now in force. This provision, now known as section 123, chapter 110, page 1789, Hurd’s Rev. St. of Illinois for 1911 (J. & A. ¶ 8661), is as follows:

“Whenever an interlocutory order or decree is entered in any suit pending in any court in this State granting an injunction, or overruling a motion to dissolve the same, or enlarging the scope of an injunction order, or appointing a receiver, or giving other or further powers or property to a receiver already appointed, an appeal may be taken from such interlocutory order or decree to the Appellate Court of the district wherein is situated the court granting such interlocutory order or decree: Provided, that such appeal is taken within thirty days from the entry of such interlocutory order or decree, and is perfected in said Appellate Court within sixty days from the entry of such order or decree. The force and effect of such interlocutory order or decree and the proceedings in the court below shall not be stayed during the pendency of such appeal, and the party taking such appeal shall give bond, to be approved by the clerk of the court below, to secure costs in the Appellate Court. Upon filing of the record in the Appellate Court the same shall there be at once docketed, and shall be ready for hearing under the rules of said court, taking precedence of other causes in said court. Upon such appeal the Appellate Court may affirm, modify or reverse such interlocutory order or decree, and shall direct such proceedings to be bad in the court below as the justice of the case may require. If such appeal is dismissed, the Appellate Court may allow to the attorney for appellee a reasonable solicitor’s fee, not to exceed one hundred dollars, to be taxed as part of the costs of the appeal. No appeal shall lie or writ of error be prosecuted from the order entered by said Appellate Court on any such appeal. ’ ’

Under the numerous decisions of this court, appellant’s right of appeal is based entirely upon this section, which clearly provides that in order to appeal from such interlocutory order or decree, the appeal must be taken within thirty days from the entry of such interlocutory order or decree and perfected in the Appellate Court within sixty days from the entry of such order or decree. It has been uniformly held that under this provision the appellant must file a bond in the court entering the order or decree, said bond to be approved by the clerk of said court. The decisions of the Appellate Court—which, under the statute, has exclusive jurisdiction of appeals from interlocutory orders and decrees—are to the effect that section 123 means that the only manner in which an appeal can be taken is by filing a bond approved by the clerk of the court below wherein the proceeding was heard. And they have expressly held that where the bond was approved by the court, instead of by the clerk of said court, the filing of such a bond was not in conformity with the statute, and the Appellate Court was divested of jurisdiction.

One of the earliest cases taking this view was John F. Alies Plumbing Co. v. Alies, 67 Ill. App. 252. In that case a motion was made similar to that in the case at bar, and the court said (p. 255):

“The taking of an appeal under this act consists of a single act—filing a bond approved by the clerk; as the taking an appeal from the judgment of a justice is done by filing a bond with the justice, approved by him, or with the clerk of the court, approved by him.
“No prayer for an appeal is to be addressed to anybody, and nobody can fix any conditions for the appeal. ’ ’

In the case of Harding v. Harding Incandescent Co., 98 Ill. App. 141, the appellant prayed an appeal and the Circuit Court ordered that the appeal be allowed “upon his giving and filing a good and sufficient bond according to law in the sum of $200, together with a certificate of evidence herein, within sixty days from the entry of this order.” The bond was filed and approved by the court, but not by the clerk of the court. Appellee moved to dismiss the appeal on the ground that the appeal was not perfected in accordance with the provisions of the statute providing for appeals from interlocutory orders, and the court said (p. 142):

“The statute provides that an appeal may be taken from an interlocutory order by the giving of a bond by the party taking the appeal, which bond is to be approved by the clerk of the court wherein the order appealed from is entered. In no other manner than by conforming to this statute could an appeal be prosecuted from this order. The statute requires no approval of the appeal bond by the court, but it does require an approval by the clerk of the court. Here the court approved the bond and the clerk of the court did not, and hence the appeal was not perfected.
“The right of appeal is a matter of statutory creation, not a common law right. Hence conformity to the statute is essential and a lack of it is jurisdictional, (citing Fairbank v. Streeter, 142 Ill. 226; Greve v. Goodson, Id., 355; Tedrick v. Wells, 152 Ill. 214; John F. Alies Plumbing Co. v. Alies, 67 Ill. App. 252; Hartzell v. Warren, 77 Ill. App. 274.
“In the two cases last cited precisely the same question was presented as is here, and this court held that it was without jurisdiction and dismissed the appeals.”

In the case at bar, however, no question arises as to the filing of an appeal bond, because under section 98 of our Practice Act (J. & A. jf 8635) it is provided that municipal corporations may, in all cases, take an appeal or sue out a writ of error without giving bond; and in City of Chicago v. O’Hare, 124 Ill. App. 290, it was held that this provision includes appeals from interlocutory orders or decrees.

However, the mere fact that municipalities are exempt from filing a bond does not alter or detract from the rule of law laid down in the foregoing decisions that the benefit of an appeal can be had only by strict conformity to the provisions of the statute by which the right is created.

The statute also provides that, in addition to the appeal being taken within thirty days, it must be perfected in the Appellate Court within sixty days from the entry of the interlocutory order or decree appealed from. This brings us to the question as to what is meant by the language “and is perfected in said Appellate Court within sixty days from the entry of such order or decree.”

Appellant contends that the language just quoted has reference only to the filing of the bond, that if said bond is filed within sixty days, it perfects the appeal.

Appellant argues further, that once being perfected (by the filing of a bond) then, under the provisions of section 100 (J & A. 8637), it had until the second day of the succeeding term of the Appellate Court in which to file its record; and on oral argument counsel cited cases wherein appeals were prayed from final judgments or decrees and wherein it was held that the appeal was perfected when the bond was filed:

That such is not the meaning of section 123 is evident from the decisions which we have heretofore cited, wherein it was expressly held that when the statute provided that an appeal shall be taken within thirty days, it was meant that the bond, approved by the clerk of the lower court, must be filed within thirty days; hence, we must look for a different interpretation of such language and the only reasonable interpretation is, that there must be on file in the Appellate Court, within sixty days from the entry of the order or decree appealed from, a transcript of the record of the proceeding, from which this court can determine the correctness of the ruling of the court in issuing the interlocutory order complained of.

In appeals from final orders, judgments or decrees, the statute provides that an appeal may be prayed and allowed during the term of the. court in which said order, judgment or decree was entered, and the party praying such appeal shall, within such time (not less than twenty days after the entering of said order, judgment or decree) as shall be limited by the court, give and file in the office of the clerk of the court in which the appeal is prayed, a bond in a reasonable amount, to be fixed by the court, and to be approved by the court or by the clerk of the court, under the express order of the court, to secure the adverse party with sufficient security.

Section 100 of our Practice Act (J. & A. 8637) provides as follows:

“Authenticated copies of records of judgments, orders and decrees appealed from any court to the Appellate Court shall be filed in the office of the clerk of the Appellate Court on or before the second day of the succeeding term of said court: Provided, twenty (20) days shall have intervened between the last day of the term at which the judgment, order or decree appealed from shall have been entered and the sitting of the court to which the appeal shall be taken; but if ten (10) days and not twenty (20) shall have intervened as aforesaid, then the record shall be filed as aforesaid, on or before the tenth (10th) day of said succeeding term, otherwise the said appeal shall be dismissed. Further time to file such copies of record may be granted by said court in term time or by any justice thereof in vacation upon good cause shown, provided application therefor shall be made- before the expiration of the time herein fixed for filing such copies of the record.”

It will at once be seen that the' taking of appeals from final judgments or decrees is quite different from appeals from interlocutory orders or decrees, for in the former a prayer is necessary and it must be allowed by the court and the bond approved by the .court or by the clerk, under express order of the court; which is entirely at variance with the provisions for a bond under section 123.

Section 100 provides that the record shall be filed in the Appellate Court by the second day of the succeeding term, providing a certain number of days has elapsed since the entry of the order appealed from. It further provides, however, that if by the second day of the succeeding term in the Appellate Court there is on file a sufficient record to show what the order was that was appealed from, and that the bond was properly filed as required; in which event application may be made before the second day of the succeeding term for an extension to file such supplemental record as will enable the reviewing court to pass upon the correctness of the order appealed from.

However, there is no provision for any such contingency in section 123. It expressly states in so many words, that the appeal must be taken within thirty days and perfected in the Appellate Court within sixty days. This entire section was intended to secure a quick and summary review of interlocutory orders or decrees.

Section 123 (J. & A. ft 8661) further provides:

“Upon filing of the record in the Appellate Court the same shall there be at once docketed, and shall be ready for hearing under the rules of said court, taking precedence of other causes in said court.”

This language clearly confirms us in the view that the perfecting of the appeal means the filing of the record in the Appellate Court. •

The question, therefore, that presents itself to this court is, whether under the record in this case the appellant has perfected its appeal within sixty days, as provided for under our statute.

The record in this case, which was filed on July 3rd, consisted of only a copy of the decree appealed from. It did not contain a copy of the appeal bond, nor was that necessary, as we have already held that a municipality is not required to furnish a bond in taking an appeal.

On September 14th a supplemental record was filed, without the order of the court, and on October 20th a motion was made for leave to file said supplementary record nunc pro tunc, as of September. 14th. Whether such record was filed on October 20th or on September 14th, it was long after the sixty days had expired in which appellant should have perfected its appeal.

As heretofore stated, it has been uniformly held that the appeal being purely a statutory creation, the law must be complied with, and a failure to comply therewith deprives this court of jurisdiction. The motion of appellant to file said supplementary record will therefore be denied.

In this view of the case, unless the- record on file is sufficiently complete to present for the determination of this court any errors by the chancellor in entering the order complained of, the appeal must be dismissed. Thomas v. John O’Brien Lumber Co., 185 Ill. 374.

This record presents merely a copy of the decree. As there are no assignments of error, it presents no question for our determination. The motion of the appellee must therefore be granted and the appeal dismissed.

We see no reason, however, for allowing the statutory damages in this case.

Appellee, in its motion to dismiss the appeal, has proceeded upon the theory that because only a short record was on file which did not present any question for the determination of this court, and because no motion was made within sixty days suggesting a diminution of the record and asking leave to file a supplemental record, there is nothing before this court to determine, because said record does not fully and fairly present to this court the question of the chancellor’s right to enter the order complained of.

In making this contention, appellee proceeded upon the theory that as in appeals from final judgments, a short record being on file, a party, by motion made within the time in which a complete record should be on file, may move to suggest the diminution of the record and ask additional time in which to file a supplemental record; that applying the same rule to section 123, supra, the appellant might have, within sixty days, made such motion in the case at bar.

In appeals from final judgments, orders or decrees, our Supreme Court has held the law to be as contended for by counsel' for appellee, as will be seen from Thomas v. John O’Brien Lumber Co., supra, wherein the court said (p. 377):

“The appellant should have filed in proper time a transcript of so much of the record as was then obtainable, had the cause placed upon the docket, and then entered a motion for further time in which to bring in the remaining portion of the record. Not having filed a complete transcript within the time prescribed by the statute, or-a transcript of so much of the record as could be obtained, and asked for further time to complete the same, within the requirement of the rule, the appellee was entitled to have the appeal dismissed.”

Even in that view of the case, applying the rule laid down by our Supreme Court with reference to appeals from final orders, judgments or decrees, appellant has failed to perfect its appeal, because at no time within sixty days was a motion made suggesting the diminution of the record or asking leave to file a supplemental record.

Appellant has set forth as reasons why it should be permitted to file a complete record at this time, as requested in its motion of October 20th, and in opposition to the motion to dismiss the appeal, the fact that the judge who entered the order was ill, which accounted for part of the delay in preparing and filing the record; that counsel for appellee required much time in examining the record; and that further fact that the Appellate Court had adjourned at the time appellant finally secured the record from the clerk of the Superior Court on July 21st, and it was informed that there was no judge present before whom a motion could be made suggesting the diminution of the record and asking leave to file a supplemental one; and further, that stipulations were entered into, first, that appellant might file a supplemental record instanter on September 8th, and second, granting appellee additional time in which to file his briefs in the Appellate Court.

In cases of appeals from final judgments, orders or decrees, the record must be on file in the Appellate Court not later than the second day of that term of the Appellate Court succeeding the rendition of such judgment, order or decree; or if a short record be on file in the Appellate Court, a motion suggesting the diminution of the record, and asking leave to file a supplemental record, must be made on or before the second day of the said succeeding term of the Appellate Court. And it has been uniformly held that the failure to comply with the statute in this respect divests the reviewing court of jurisdiction to hear the appeal, any acts or stipulations by the parties, or orders of court, to the contrary, notwithstanding. Gibson v. Vail, 248 Ill. 432; Fonda v. Jackson, 203 Ill. 113; Thomas v. John O’Brien Lumber Co., supra; Cook v. Cook, 104 Ill. 98.

As already stated, such is also the ruling of the Appellate Court in construing the section providing for appeals from interlocutory orders, where a bond is not filed within thirty days.

The suggestion, however, that the Appellate Court was adjourned on July 21st and that no judge was present, is one horn, we feel, of the exigencies of the situation in which appellant found itself. The order complained of was entered on June 5th. Under the statute, sixty days was given it in which to perfect an appeal. The formality of having to furnish a bond was dispensed with, so that appellant had the entire sixty days at its disposal in which to secure a proper record to file in the Appellate Court.

The only record filed within the sixty-day period was that of July 3rd, which we have already held was not sufficient to present any issues for the determination of this court.

Appellant, in its affidavit, stated that on July 15th' and again on July 21st, counsel endeavored to present a motion in the Appellate Court suggesting the diminution of the record and asking leave for additional time in which to file a complete supplemental record, but were prevented from doing so because no judge was present.

The incorporation of the dates in this affidavit indicates that counsel for appellant recognized that the record filed on July 3rd was inadequate, incomplete and insufficient; and further that they were of the opinion that a complete record had to be on file in the Appellate Court within sixty days, or motion made within that time suggesting the diminution of the record and asking leave for additional time to file a supplemental one.

This court did not adjourn until July 17th. Therefore there was no reason why, on July 15th, such motion could not have been presented. Although counsel state that they endeavored to make a motion on that day, the record shows that no such motion was ever made. Moreover, a motion of this kind could have been granted by any judge of the Appellate Court in vacation time, and it is a fact, that several judges of this court were at work in the chambers of this court during the entire period of sixty days after the entry of the order complained of. Therefore, if counsel were entitled to make this motion—which we have already held they were not—the failure to do so was not because the Appellate Court had adjourned or because of any inability to find a judge of this court.

The dismissal of this appeal, however, does not in any way affect the merits of the controversy, and the parties are at liberty to proceed to a hearing on the bill after answers are filed, and have determined any and all issues that may be joined.

Appeal dismissed.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Patrick G. Flynn, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 20,641.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed January 29, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Patrick C. Flynn, plaintiff, against the City of Chicago, defendant, in the Circuit Court of Cook county, to recover salary from August 20, 1903, to January 13, 1912, being the period between his wrongful discharge as a police patrolman of defendant city and his reinstatement as such, less what plaintiff had earned in the meantime. From a judgment for plaintiff for $1,074.43, both parties appeal, and defendant assigns cross-errors.
    It appeared that in 1895, the plaintiff passed the civil service examination and qualified as police patrolman of Chicag’o. He continued as such until August 20th, 1903, when he was removed as the result of charges preferred against him. On June 19, 1906, he filed a petition for a writ of mandamus to compel his reinstatement. On December 22, 1908, the court found that the discharge of plaintiff was unlawful, and granted a writ of mandamus commanding immediate reinstatement. The writ was issued March 9, 1909, and served March 12th. There was no evidence as to what further was done until the 23rd of December, 1911, when an alias writ was issued and served on December 27, 1911. Counsel for plaintiff stated that the defendant announced it would sue out a writ of error to review the judgment, which could have been done any time within three years, and that immediately after said period of three years, he obtained an alias writ. Plaintiff was reinstated January 13,1912, and on February 7, 1912, brought this action.
    Abstract of the Decision.
    1. Mandamus, § 170

      —what patrolman seeking reinstatement by mandamus must prove. A person seeking reinstatement by mandamus as a patrolman must show "the legal existence of the office or position, his clear right to the office, and the duty of respondent to perform the act sought to be enforced.
    2. Civil service, § 30

      —when judgment ordering reinstatement establishes title to office. On a petition for mandamus to compel petitioner's reinstatement as a police patrolman, the rendition of judgment ordering the writ to issue as prayed conclusively establishes petitioner’s right to the office.
    3. Mandamus, § 139

      —when fact that office has been terminated must be set up by proper plea. On a petition for mandamus to compel the reinstatement of petitioner in the office claimed, where it appears that during the interval between petitioner’s discharge and the filing of the petition his right to the office has been terminated, such fact must be set up by proper plea to the petition.
    4. Civil service, § 31

      —when officer estopped to claim on appeal more salary than claimed on trial. Where a plaintiff, seeking to recover salary as a police patrolman during the time wherein he was deprived of his position by wrongful discharge in the trial court, asks for the amount of such salary less the amount earned during such period while not acting as a patrolman, he cannot shift his position in the Appellate Court and claim the entire amount of such salary without deduction.

      The action was tried by the court without a jury. It was held that plaintiff was entitled to salary from the time of his discharge to the time his reinstatement was ordered, less the amount earned between the time he was discharged and when he was actually reinstated, and entered judgment - for the amount of the difference.
    A. D. Gash, for plaintiff in error.
    John W. Beckwith, for defendant in error; John E. Foster, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

5. Trial, § 87 —when reopening of case to hear further evidence within discretion of court. Where an action is heard by the court without a jury, the allowance of a motion to reopen and hear further evidence after having announced a finding is within the sound discretion of the court.

6. Trial, § 87 —when court does not abuse its discretion to reopen case to hear further evidence. In an action to recover salary as a police patrolman, where it appeared that plaintiff was discharged as such patrolman on August 20, 1903, that he brought a petition for mandamus on June 19; 1906, to compel his reinstatement, that on March 9, 1908, the writ was issued and served March 12th, that nothing was done until December 23, 1911, when an alias writ was issued and served December 27th, that the delay was explained by showing that defendant notified plaintiff of its intention to bring a writ of error, which was never done, that plaintiff was reinstated January 13, 1912, that plaintiff showed the amount earned between August 20, 1903, and January 13, 1912, but did not show what proportion of this amount was earned between August 20, 1903, and March 9, 1908, and the court found for the amount of salary to which plaintiff was entitled from August 20, 1903, to March 9, 1908, less the amount earned between August 20, 1903, and January 13, 1912, as proved by plaintiff, held that the denial of a motion made after finding to reopen the case and hear evidence as to the amount earned between August 20, 1903, and March 9, 1908, was not an abuse of discretion under the evidence.

7. Civil’ service, § 31 —when officer cannot recover salary after date of writ of mandamus for reinstatement. A police patrolman who is wrongfully discharged and obtains a writ of mandamus to compel his immediate reinstatement cannot recover for salary after the date of the writ, although he is not actually reinstated until a much later time, since the power of the State is at plaintiff’s command to enforce immediate compliance with the terms of the writ, and if plaintiff delays to invoke such power to enforce his rights such delay is voluntary.

8. Trial, § 295 —when propositions of law submitted too late. Propositions of law submitted after the trial of the case are properly refused.


author: Mr. Presiding Justice McSurely

text:
    Home Instructor Publishing Company, Defendant in Error, v. Blumenstock Brothers, Plaintiff in Error.
    Gen. No. 21,502.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Statement of the Case.
    Action by the Home Instructor Publishing Company, plaintiff, against Blumenstock Brothers, a corporation, defendant, in the Municipal Court of Chicago, to recover for advertising. To reverse a judgment for plaintiff for $228.95, defendant prosecutes this writ of error..
    Plaintiff published a paper called “The Home Instructor,” and contracted with defendant to advertise the product of the American Cereal Coffee Company. The order called for the insertion in the October edition 1914, the price to be 68 cents a line, less commission. The advertisement appeared in the October edition. A provision in the order was as follows:
    “This order is placed with the understanding that the cost per sale will not exceed the average cost of other mail order mediums used by this advertiser. That this and other copy not exceeding 387 lines will be repeated in the Dec. or any later issue if necessary without charge in order to produce orders at the average cost.”
    The advertisement had a coupon or form of order with a “key number” attached, which purchasers' detached and forwarded to the coffee company. In this way account was kept of the sales resulting through the advertisement. It appeared that plaintiff was ready and willing to carry out its obligation to continue the advertisement, but was ordered by defendant not to run it after the October issue.
    Abstract of the Decision.
    1. Contracts, § 219

      —how contract for advertising construed. In an action to recover on a contract for advertising, a provision in the contract that “this order is placed with the understanding that the cost per sale will not exceed the ’ average cost of other mail order mediums used by this advertiser. That this and other copy not exceeding 387 lines will be repeated in the Dec., or any later issue if necessary without charge in order to produce orders at the average cost,” held to be construed as an undertaking to continue the advertisement without further cost until the results to the advertiser, considering cost, were equal to the results obtained from other papers.
    2. Damages, § 57

      —when advertiser liable for contract price of advertising. In an action to recover on a contract for advertising, where the contract provided that the advertisement should be continued without additional cost in subsequent issues of plaintiff’s publication until the results to the advertiser, considering cost, were equal to the results obtained from advertisements in other papers, but where, after one publication, defendant ordered plaintiff not to insert the advertisement again, defendant is liable for the contract price, although it made but one sale as a result of the advertisement, plaintiff not being accountable for failure to perform in such case.
    Fyffe, Ryner & Dale, for plaintiff in error.
    L. H. Craig, for defendant in error.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, game topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Wladysus Szymczak, Defendant in Error, v. Schillinger Brothers Company, Plaintiff in Error.
    Gen. No. 21,513.
    1. Negligence, § 19—what does not constitute attractive nuisance. A barrel possesses no quality attractive to children, as does a turntable or push car, or boards or logs floating on a pool of water, so as to be held to be an attractive nuisance.
    2. Negligence, § 19

      —when doctrine of turntable cases inapplicable. The doctrine of the turntable cases as to attractive nuisances is not to be extended to the case of a barrel containing hot tar used in making asphalt.
    3. Negligence, § 18

      —when person liable for maintaining attractive nuisance causing infwry to children. It is a necessary element of liability for maintaining an attractive nuisance that the thing causing injury be such as to tempt children, and be so located as to attract them from the street or other public place where they may be expected to be, so that the owner may be held bound to anticipate that the children would come on the premises, but an owner cannot be held liable for maintaining for his own use something which might be dangerous to children who trespassed on the owner’s land without being attracted thereto.
    4. Negligence, § 19

      —when person not guilty of actionable negligence in maintaining attractive nuisance.' In an action to recover for injuries sustained by a six-year-old child as a result of defendant’s alleged negligence, where it appeared that plaintiff, while trespassing on land of defendant used in making asphalt, put his hand into a barrel containing hot tar, burning the hand, plaintiff being engaged with other children in making tar balls when injured, held that defendant was not guilty of actionable negligence.
    Error to the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in this court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed January 31, 1916.
    McCaskill & McCaskill, for plaintiff in error.
    Stahl & LeWald, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff, a minor, brought suit alleging the maintenance by defendant of an attractive nuisance whereby he was injured. He had judgment for eight hundred and fifty dollars. i

Defendant was engaged in the business of laying concrete and asphalt floors and erecting concrete buildings, and was in possession of a lot on North Seeley avenue, in Chicago, where it melted the tar used in making asphalt. After the tar was melted in a vat it was poured into barrels and allowed to cool. Plaintiff, six years old, living near by, was playing on the lot with other children; they were making tar balls. By standing on a piece of concrete, which he placed for the purpose, he reached into one of these barrels and burned his hand in the hot tar.

We are referred to no case holding a barrel or any receptacle of tar to come within the rule of a danger attractive to children, or, as it is sometimes called, an attractive nuisance. The barrel cannot be said to possess a quality attractive to.children, as does a turntable or a “push car,” or boards or logs floating on a pool of water, which have been held to be attractive nuisances. In Newman v. Barber Asphalt Paving Co., 190 Ill. App. 636, the court declined to apply this doctrine to a wagon loaded with tar, although it was there urged as it is here that this was “attractive to children and appealed to childish curiosity and instinct to play with and in the making of balls of tar. ’ ’ We are not willing to extend the doctrine of the turntable cases to include a barrel of tar.

Plaintiff lived a very short distance from this lot, on which there was no building except a shed in the rear. With other children he frequently used the lot as a playground. It was while playing there that he noticed the barrel of tar. What is said in McDermott v. Burke, 256 Ill. 401, is applicable to the facts before us. The court there said (p. 406):

“It is a necessary element of the liability that the thing which causes the injury is tempting to children and to constitute a means of attracting them upon the premises which the owner should anticipate. The dangerous thing must be so located as to attract them from the street or some public place where they may be expected to be. 'An owner would not be liable if he maintained something for his own use which might be dangerous but which would only be found by children going upon his premises as trespassers.”

We hold that the defendant was not guilty of actionable negligence, and the judgment is reversed with a finding of fact.

Reversed with finding of fact.


text:
    Abraham Steiger, Plaintiff in Error, v. Edward F. Keebler, Defendant in Error.
    Glen. No. 21,564.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Rehearing denied February 14, 1916.
    Statement of the Case.
    Action by Abraham Steiger, plaintiff, against Edward F. Keebler, defendant, to recover on an alleged promise to repay a broker’s commission under certain conditions. To reverse a judgment for defendant upon a trial without a jury, plaintiff prosecutes this writ of error.
    It appeared that defendant secured a tenant for plaintiff’s store. Plaintiff claimed that ■ before he closed the lease he told defendant or his agent that another broker, named Staff, might or did claim a commission for procuring the same tenant, and that defendant said: “If you have to pay the money to the other broker we will pay this back”; whereupon the transaction was closed and Keebler was paid his commission. Subsequently Staff obtained judgment against plaintiff for his commission.
    Abstract of the Decision.
    1. Contracts, § 385

      —when evidence insufficient to sustain finding that promise to repay commissions was made. In an action to recover on an alleged promise by defendant that under certain conditions he would repay a broker’s commission paid by plaintiff to defendant for procuring a tenant for plaintiff’s store, where the evidence was conflicting, a finding that defendant never made the promise alleged, held justified by the evidence.
    2. Principal and agent, § 8

      -—when evidence sufficient to sustain finding that employee had no authority to promise to repay -commissions. In an action to recover on an alleged promise by defendant that under certain conditions he would repay a broker’s commission paid by plaintiff to defendant for procuring a tenant for plaintiff’s store, where there was evidence that the promise alleged was made by an employee of defendant, held that such employee had no authority to bind defendant by such promise.
    Plaintiff’s testimony tended to support the promise made to him, while defendant denied categorically making such agreement. There was evidence tending to show that one Gilbert Keebler, an employee of defendant, made this promise. This was denied by Gilbert Keebler.
    Winston & Lowy, for plaintiff in error.
    Sabath, Stafford & Sabath, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Emil H. Seeman, Defendant in Error, v. John Mills, Plaintiff in Error.
    Gen. No. 21,664.
    1. Mortgages, § 223

      —what is relation between mortgagee and grantee assuming indebtedness. Where a grantee under a deed assumes the debt of a mortgagor, the only relation of principal and surety raised thereby is between themselves, and as to the mortgagee, such grantee becomes an additional promisor on the mortgage note.
    2. Mortgages, § 227

      —what are remedies of mortgagee where grantee assumes incumbrance. A mortgagee whose mortgagor has conveyed to a grantee under an arrangement that the grantee assume the payment of the incumbrance may disregard the agreement and proceed against the mortgagor, or may treat the promise made for his benefit as an additional remedy and proceed against the grantee.
    3. Mortgages, § 227

      —what is effect of assumption of debt by grantee. The rights of a mortgagee cannot be changed by arrangements between the mortgagor and a grantee of such mortgagor for an assumption of the debt, where such arrangements are without the consent of the mortgagee, but, if such arrangement is accepted by the mortgagee, each party to such agreement is an original promisor for the payment of the incumbrance.
    4. Mortgages, § 227

      —when mortgagor released by assumption of debt by grantee. A mortgagor who has conveyed to a grantee under an arrangement that the grantee assume the payment of the incumbrance will not be released from liability on the mortgage note unless the mortgagee consents to accept such mortgagor as surety and look solely to the grantee for payment of the incumbrance.
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Rehearing denied February 14, 1916.
    Otis H. Waldo, for plaintiff in error.
    William G. Wise, for defendant in error.

      See Illinois Notes Digest, VCols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By confession judgment for $547.80 on a promissory note was entered against defendant, who subsequently moved that it be vacated, which motion was denied. By affidavits filed in support of the motion, defendant showed that the note signed by him was secured by a deed of trust conveying real estate; that afterwards the defendant sold the real estate to G-eorge Wenzelis and wife subject to the mortgage indebtedness, which the grantee assumed and agreed to pay as part of the consideration; that subsequently, the note falling due, an agreement was made between the holder and Wenzelis for an extension of the time of payment of the note, which agreement was without the knowledge and consent of the defendant.

Defendant says that because of these facts the grantee, Wenzelis, became the principal debtor, and the defendant, the mortgagor, became the surety; that the agreement to extend the time of payment operated to release the defendant from the debt. This is not the law. Where a grantee under a deed assumes the debt of the mortgagor, the relation of principal and surety, if there is such a relation, only applies as between themselves. As to the mortgagee, the grantee becomes an additional promisor only. In Scholten v. Barber, 217 Ill. 148, 150, the rule is stated thus:

“In this State the rule is, that as between the mortgagor and his grantee who assumes the payment of the encumbrance, the grantee becomes principal debtor and the mortgagor becomes his surety. But the mortgagee is in nowise affected by the agreement to which he is not a party. He may disregard it and bring his action against the original debtor only, or he may accept the promise made for his benefit, and, treating it as an additional remedy, bring his action against the grantee. If the agreement is accepted by the Mortgagee, each party to it is an original promisor for the payment of the encumbrance, but the contract rights of the mortgagee cannot he changed by any arrangement between the mortgagor and his grantee unless the mortgagee agrees to such change.”

In Elwell v. Hicks, 180 Ill. App. 554, an extended opinion by Mr. Justice Brown, many cases are considered, with comments, and the court concludes that the original mortgagor will not be released unless it should appear that the mortgagee has consented to accept him as surety merely, and agreed to look solely to the grantee. There is no evidence whatever in the record before us as to such an intention on the part of the holder of the note.

The judgment is right and is affirmed.

Affirmed.


text:
    Automatic Electric Company, Defendant in Error, v. Albert Campbell, Plaintiff in Error.
    Gen. No. 21,696.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Statement of tlie Case.
    Action by the Automatic Electric Company, plaintiff, against Albert Campbell, defendant, in the Municipal Court of Chicago, to recover on a contract of guaranty. To reverse a judgment for plaintiff for $1,974.06, defendant prosecutes this writ of error.
    Plaintiff’s statement of claim alleged that being about to bring suit against the Auto Card Index Company for goods sold and delivered, it was requested by defendant to forbear suit for thirty days, whereupon plaintiff and defendant executed the following written contract:

      “Whereas, at the date hereof the Auto Card Index .Company, an Illinois Corporation, is indebted to the Automatic Electric Company in the sum of $1,974.06; and
    “Whereas, said Auto Card Index Company is unable at the present time to pay said account; and
    “Whereas, Albert Campbell is heavily interested in said Auto Card Index Company as a stockholder; arid
    “Whereas, said Albert Campbell is willing to guarantee the payment of said account by said Auto Card Index Company;
    “Now, therefore, in consideration of forbearance on the part of Automatic Electric Company to urge the collection of said account from said Auto Card Index Company for a period of thirty days from and after the date hereof, Albert Campbell hereby guarantees the payment of said sum of $1,974.06, on or before June 11, 1913; and further agrees to indemnify and save harmless Automatic Electric Company from any losses or damage it may sustain by reason of its forbearance as aforesaid.
    ‘ ‘ In consideration of said guarantee by the said Albert Campbell, as aforesaid, the Automatic Electric Company agrees to forbear for thirty days from and after the date hereof, to urge the collection of the said account of $1,974.06, now due and owing to it from Auto Card Index Company.
    “Witness the hands and seals of the parties hereto this 12th day of May, 1913.
    Signed Automatic Electric Company,
    By H. A. Harris, V. P.
    Albert Campbell. (Seal).”
    Plaintiff forbore to sue upon the claim as agreed and did not urge collection. Both the Index Company and the defendant failed to pay. On June 12, 1913, plaintiff notified defendant of the default and demanded payment, but defendant failed to pay.
    The affidavit of defense alleged that when the contract was signed there was no enforceable debt to forbear and no good and valid consideration for defendant’s promise.

      Abstract of the Decision.
    1. Pleading, § 231

      —what is right of party to amend pleadings. A party to an action is not as of right entitled to have leave to amend regardless of the character of the proposed amendment, but should prepare the proposed amendment and submit it to the inspection of the court.
    2. Pleading, § 231

      -—when not presumed that amendment of pleading will he proper. There is no presumption that a proposed amendment of a pleading will be proper, so that it is not error to refuse to allow an amendment not presented where there are no means of determining whether the proposed amendment is proper and sufficient.
    3. Municipal Court of Chicago, § 13

      —when affidavit of defense in action on contract of guaranty states no defense. In an action to recover on a contract of guaranty made in consideration that plaintiff forbear to bring suit on a cause of action named in the guaranty, where the declaration alleged that plaintiff forbore in accordance with the contract, it is not error to strike an affidavit of defense alleging that the time of making the contract there was no good and enforceable debt to be forborne and hence no valid consideration for the guaranty sued on, such affidavit stating no defense to the action.
    4. Guaranty, § 7

      —what is sufficient consideration to support contract of guaranty. A promise to forbear followed by an actual forbearance is a sufficient consideration to support a contract of guaranty.
    At the trial the court allowed plaintiff’s motion to strike the affidavit of defense from the files, and denied motions to file an amended affidavit and to amend the affidavit instanter and directed a verdict for plaintiff.
    John S. Hummer, for plaintiff in error.
    Albert E. Wilson and Sears, Meagher & Whitney, for defendant in error; Edwin Hedrick, Jr. and John W. McCarthy, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

5. Guaranty, § 7 —when guarantor estopped to deny consideration of guaranty or validity of original undertaking. In an action on a contract of guaranty the guarantor is estopped to deny the consideration of the guaranty or the validity of the original undertaking.

6. Guaranty, § 7 -—when consideration of guaranty may not he determined. In an action on a guaranty founded on a new consideration, independent of the consideration of the original undertaking, the consideration of the original undertaking cannot be inquired into as it forms no part of the consideration of the guaranty, but it is otherwise where the guaranty is made, at the same time as or before the original undertaking, since in such case the consideration of the original undertaking is also the consideration of the guaranty.


text:
    City of Chicago, Defendant in Error, v. F. S. Richardson, Plaintiff in Error.
    Gen. No. 21,756.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Statement of the Case.
    Prosecution by the City of Chicago against F. S. Bichareis on, defendant, in the Municipal Court of Chicago, charging defendant with a violation of section 2019 of the Chicago Code. The case was tried by the court without a jury. To reverse a judgment of conviction with a fine of two hundred dollars, defendant prosecutes this writ of error.
    Benjamin E. Cohen, for plaintiff in error.
    Samuel A. Ettelson and Harry B. Miller, for defendant in error; Daniel Webster, of counsel.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 39

      —when ordinance must Toe incorporated in stenographic report for purpose of review. A defendant in a prosecution charging him with violating an ordinance of the City of Chicago, who desires to preserve for review the question whether a judgment of conviction is supported by the evidence, must cause-the ordinance to be incorporated in the stenographic report.
    2. Disorderly house, § 2

      —when evidence sufficient to sustain finding as to keeping of disorderly house. In a prosecution charging defendant with keeping a disorderly house in violation of a city ordinance, evidence held to justify a finding that defendant’s place was a disorderly house as charged in the complaint.
    3. Disorderly house, § 2

      —when evidence sufficient to sustain finding that defendant knew character of place. In a prosecution charging defendant with keeping a disorderly house in violation of a city ordinance, the probative force of evidence as to the character of defendant’s place will also justify the conclusion that defendant knew its character.
    4. Disorderly house, § 2

      —when evidence sufficient to identify premises named in complaint. In a prosecution charging defendant with keeping a disorderly house in violation of a city ordinance, evidence held sufficient to identify defendant’s premises with the premises named in the complaint.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Arthur Freund, Defendant in Error, v. Max Goldenberg, Plaintiff in Error.
    Gen. No. 21,768.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Rehearing denied February 14, 1916.
    Statement of the Case.
    Action by Arthur Freund, plaintiff, against Max Goldenberg, defendant, in the Municipal Court of Chicago, to recover on an oral contract of employment to extend from October 16, 1913, to January 15, 1914, at $45 per week. To reverse a judgment for plaintiff for $409.50, defendant prosecutes this writ of error.
    The evidence tended to show that plaintiff was experienced in the ladies’ ready-to-wear clothing business, and in October, 1913, was employed by a ladies’ cloak and suit concern, and making $25 a week, with a prospect of continued employment. At this time defendant and one Bruns purchased a bankrupt stock of merchandise. Neither had ever been in the ladies’ clothing business and they needed an experienced man to retail this stock. Defendant asked plaintiff to take charge of the sale of this merchandise, and plaintiff replied that it would not pay him to leave a steady position for a short time. An agreement was made that plaintiff should work for defendant from October 16th until the following January 15th at $45 a week. Plaintiff entered upon his duties and did the things which are usually done under such circumstances to attract customers, displaying skill and experience. The stock was smoked and burned and of old style, and did not sell at profitable prices. After a week and five days, defendant discharged plaintiff.

      Abstract of the Decision.
    Master and servant, § 84*—when evidence sufficient to sustain finding as to wrongful discharge of servant. In an action to recover on an oral contract of employment, where there was evidence that the cause of plaintiff’s discharge was the failure of defendant to do a profitable business, but where defendant attempted to justify the discharge on the ground that plaintiff made misrepresentations as to his ability, salary and length of service with his former employer, and that he was incompetent and did not perform his work in a good and workmanlike manner, evidence held sufficient to sustain a finding that plaintiff was wrongfully discharged.
    Plaintiff sought to obtain other employment, and from October 28th until March 27th was able to secure a position for only three and a half weeks at $12 per week.
    Eben F. Runyan, for plaintiff in error.
    Moses, Rosenthal & Kennedy, for defendant in error; Sigmund W. David, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Baker

text:
    Fort Dearborn National Bank of Chicago, Defendant in Error, v. John Hobrecker, Jr., Plaintiff in Error.
    Gen. No. 21,122.
    Municipal Court op Chicago, § 13

      —when affidavit of defense in action on written guaranty insufficient. In an action to recover on a written guaranty of the payment of five promissory notes, it is proper to strike an affidavit of defense admitting default in the payment of one note and liability thereon, but alleging that the other notes sued on were not at the time the action was commenced due according to their terms, where it appears that defendant’s written guaranty provided that in case any of such notes “shall not be paid promptly at the time when it falls due” plaintiff might “enforce payment of all sums of money due upon said notes or either or any of them,” and where a deed of trust given to secure such notes provided that “in case of default in the payment of said * * * notes or any part thereof, * * * at the time and in the manner above specified * * * then in such case the whole of said principal sum * * * shall thereupon, at the option of the legal holder or holders thereof, become immediately due and payable,” since the language of defendant’s agreement in such case provided for a recovery against him on all the notes, whether due or not according to their terms.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Custer & Cameron, for plaintiff in error; John M. Cameron, of counsel.
    Guerin & Barrett, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.

March 27, 1912, defendant Hobrecker executed to the plaintiff bank a collateral instrument of guaranty, wherein he requested and authorized the bank to extend to the Modem Stove Company such credit as it from time to time should make application for, and promised and agreed that in case the bank should at any time purchase of or discount for the said Stove Company any note or notes, etc., or advance to it in any manner any money upon any account, to pay the same, and guarantied full payment at maturity of any .such note or notes, etc., provided that he should not be called upon to pay by virtue thereof more than $30,000 in the aggregate. April 15, 1914, the Stove Company made and delivered to the bank its four promissory notes of that date, for $5,000 each and one for $1,000, and on that date executed to Frank M. Forrey a trust deed to secure said notes, and also another note of said Stove Company, payable to defendant, for $48,953.46. On the same day defendant executed and delivered to the plaintiff bank an agreement in' writing reciting- the guarantying by him of certain notes of the Stove Company and the making of the guaranty of March 27, 1912, and further reciting that both he and the Stove Company desired an extension of time to be given the Stove Company to pay its indebtedness to the bank, and reciting the making and delivering to himself of said note for $48,953.46, and that the bank had extended the time for the payment of said indebtedness, and further reciting the transfer to the bank, as collateral security for said indebtedness, said note for $48,953.46, and whereby he further agreed as follows:

“Third. In case any of the said five notes described in said trust deed, four of them being for five thousand dollars and the other for one thousand dollars, shall not be paid promptly at the time it falls due, or if at any time the said Modern Stove Company shall commit any act of bankruptcy, or shall be sued in any court by any person holding any claim against the said Company, then.the said Fort Dearborn National Bank, or any assignee, transferee or endorsee from said Bank may demand payment immediately upon the said demand note, and may sell the same at public or private sale upon giving seven days’ notice by mail, or may immediately foreclose upon the said trust deed or may take any other action which it, he or they may deem necessary in any court to protect its interests, and enforce payment of all sums of money due upon the said notes or either or any of them.''

The sole ground of reversal argued is that the judgment is erroneous except as to the amount due on the first note, because the other notes had not matured at the date judgment was entered. In the brief of plaintiff in error his position is stated as follows:

‘' The question presented here is this: Is a guarantor who has made himself liable for payment of notes at maturity bound to pay them at an earlier date, if they are declared due before maturity by the holder under authority of a separate agreement between the maker and the holder of the notes! We contend for the negative of this question, and claim that, except as to the first note, the action against the plaintiff in error was premature.”

The trust deed contained a provision that, “in case of default in the payment of said six promissory notes or any part thereof, or the interest thereon or any part thereof, at the time and in the manner above specified for the payment thereof * * * then in such case the whole of said principal sum and interest secured by said six promissory notes shall thereupon, at the option of the legal holder or holders thereof, become immediately due and payable. ’ ’ A partial payment of the first note was made subsequently. The defendant admitted his liability for the remainder of that note, past due by its terms at-the time of the commencement of the suit, and denied liability for payment of the remaining notes on the ground that he was not liable upon them until they should become due by their terms. The court struck out the affidavit of defense and entered judgment for the plaintiff for the full amount claimed on all five notes without hearing or receiving any evidence except the plaintiff’s affidavit of claim. The defendant excepted to the striking out of the affidavit of defense emd to the entry of the judgment and firing's the case to this court for review.

There is an agreement in the trust deed that “if default be made in the payment of said six promissory notes or any part thereof . * * * then in such case the whole of said principal sum and interest secured by said six promissory notes shall thereupon, at the option of the legal holder or holders thereof, become immediately due and payable,” and the further agreement in the instrument executed by defendant April 15,1914, that in case any of said five notes shall not be paid promptly at the time it falls due, or if the Stove Company shall at any time commit any act of bankruptcy, then the bank may take any other action which it may deem necessary in any court to protect its interests and enforce payment of all sums of money due upon said notes or either or any of them,—both of which contingencies had arisen at the time the suit was begun; and a right of recovery on all the notes was, by the language used and employed by defendant in the instrument signed by him, provided for.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Staackman, Horschitz & Company for use of Gustav E. Beerly, Appellees, v. George B. Cary, Appellant.
    Gen. No. 21,334.
    1. Municipal Court of Chicago, § 13

      —when statement of claim in action to recover for breach of contract states cause of action. In an action to recover for breach of a contract to sell and deliver a quantity of linseed cake, where plaintiff’s statement of claim alleged that defendant telegraphed plaintiff in code: “Please make us firm offer P. W. cif Antwerp 500 T. March or first half April;” that plaintiff replied by code telegram: “Make you firm offer 1200 T. March or April cif Antwerp at .Frs. 16. Crushers or bankers guaranteeing contract;” that defendant replied by code telegram: “We accept your offer cif Antwerp 1200 T. March or April at Frs. 16,” held; that the statement of claim stated a cause of action, it appearing that the letters “P. W." as used in the telegram meant “prime western linseed cake,” and that the word “firm” similarly used meant “positive.”
    2. Contracts, § 197

      —when construed, in light of usages of trade and, of telegrams. Where defendant telegraphed to plaintiff asking an offer for the sale and delivery of a named quantity of goods, to which plaintiff replied by code telegram making an offer for a larger quantity, which defendant accepted by code telegram, a contract was made to be interpreted in the light of the usages of the trade in which the parties were engaged, and the previous telegrams between the parties. .
    3. Contracts, § 44

      —how offer must he accepted. An offer to make a contract must be accepted as made, and a modified acceptance is a new offer which cannot constitute a contract until accepted unconditionally.
    4. Contracts, § 42

      —what constitutes acceptance of offer hy telegraph. Where an offer to make a contract is sent by telegraph, a telegram in reply saying “we accept,” followed by enough of the offer to identify it, is an acceptance of the offer in its entirety.
    5. Contracts, § 52

      —when stipulation that informal agreement shall he reduced to writing does not prevent agreement taking effect. The mere fact that parties intended or stipulated that an informal agreement, either oral or written, should later be reduced to writing will not prevent the informal agreement from taking effect at once, the question whether such agreement does so take effect depending on the intention of the parties.
    6. Contracts, § 52*—when requirement that contract he reduced to writing waived. In an action to recover- for breach of a contract for the sale and delivery of linseed cake, where the contract was made by telegraph, the right of defendant to insist that the contract be reduced to writing, held waived by sending a later telegram requesting an extension of the time for delivery fixed by the contract, such request being a recognition of liability on the contract.
    7. Trial, § 163*—when place of delivery under contract question of law. In case of a breach of a written contract for the sale and delivery of linseed cake, the question of the place of delivery is a question of law to be determined by the court.
    8. Damages, § 191

      —when question of what market shall he taken in assessment of damages for court. . In case of breach of a contract for the sale and delivery of linseed cake, the question of what market shall be taken in assessing damages is a question of law for the court.
    9. Evidence, § 461*—when evidence as to legal aspect of document to he disregarded. Testimony as to the legal aspect of a particular kind of contract is merely testimony as to the law of the case and must be disregarded.
    10. Sales, § 71*—what constitutes a c. i. f. contract. A “c. i. f.” contract is a contract for the sale and delivery of goods at a price to cover the cost of freight and insurance, payment to be made on the receipt of shipping documents by the acceptance of a draft for the amount of the contract price.
    11. Sales, § 122*—what is place of delivery under contract for foreign shipment. Where the vendor in a c. i. f. contract from Chicago to Antwerp knows that the goods are intended for Antwerp, the place of delivery under the contract is Antwerp, and not the point on the American coast where the goods are to he placed on shipboard.
    12. Sales, § 376

      —what is measure of damages for breach of contract of sale. If, at the time of making a contract of sale, a vendor knows that the goods are to be sold in another market, his liability is measured by adding to the contract price at the agreed time and place the cost of transportation to such market, less the price at such market at the time the goods would have reached their destination had there been no breach.
    13. Sales, § 376

      —what is measure of damages for breach of contract for foreign shipment of goods. In an action to recover for breach of a contract requiring the shipment of goods from New York to Antwerp on April 30th, at the latest, plaintiff is entitled to have damages assessed on the basis of the market price of the goods at Antwerp on May 14th, at which time a vessel sailing from the Atlantic coast April 30th, would usually arrive, and is not limited to nominal damages because there is no evidence of the market price at Antwerp on April 30th, of goods to arrive May 14th, plaintiff having the right to wait until May 14th and to regard the contract as prospectively binding until that time.
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in this court at the October term, .1915.
    Affirmed.
    Opinion filed January 31, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Chytraus, Healy & Frost and John Peter Barnes, for appellant.
    Gustav E. Beerly, for appellee; Ellis S. Chesbrough, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.

Plaintiffs, Staackman, Horschitz & Company, were dealers in linseed cake at Antwerp. Defendant Cary was a broker dealing in such cake at Chicago. He had made twenty or thirty sales of the cake to plaintiffs at a price “to cover cost, insurance and freight, shipping the same c. i. f. Antwerp. ’ ’ March 7,1913, defendant telegraphed plaintiffs in code: “Please make us firm offer P. W.” (prime western linseed cake) “cif Antwerp 500 T. March or first half April,” and telegraphed a similar request March 8th. March 13th plaintiffs at Antwerp telegraphed in code an offer to defendant in Chicago as follows: “Make you firm offer 1200 T. March or April cif Antwerp at Prs. 36. Crushers or bankers guaranteeing contract,” to which defendant replied March 14th by telegraph, also in code: “We accept your offer cif Antwerp 1200 T. March or April at Prs. 16. ” . These telegrams, together with a large number of other telegrams, forming the proposed contract, are set forth in the statement of claim. Defendant moved to strike the statement of claim from the files. His motion was denied, and he electing to stand by his motion, an order was entered defaulting him for failure to file an affidavit of merits. While the statement of claim is certainly not a model to be followed, we think it states a cause of action, and the court did not err in refusing to strike it from the files. The defendant having been defaulted, the only question submitted was the amount of plaintiffs’ damages. The word “firm” in the plaintiffs’ telegram means positive, and is used by both parties in other code telegrams in that sense.

The telegrams made a contract between the parties to be interpreted in the light of the usages of trade and the previous.telegrams between the parties. It is true that an offer must be accepted as made, for any modified acceptance is but a new offer and cannot be the basis of a contract until it in terms has been accepted unconditionally. The words “we accept” in defendant’s telegram of March 14th, followed by enough of the offer to identify it, was an acceptance of the offer in its entirety. The mere fact that the reduction of an informal agreement, oral or written, by a formal written one was contemplated or stipulated for, does not prevent the former from taking immediate effect. The question whether it does or not depends on what the parties intended. Scott v. Fowler, 227 Ill. 104,108; Stover v. Flack, 30 N. Y. 64.

If it he conceded that defendant might have insisted on a formal contract, it was competent for him to waive it, and his request by telegram of March 29th, “Owing floods railroads paralyzed; kindly extend contract April May,” was a recognition of his liability on a contract made by the telegrams of March 13th and 14th. It was for the court to determine as a question of law the place of delivery, and in case of a breach, what market should .be taken' in estimating plaintiff’s damages. A large part of defendant’s testimony and that of some of his witnesses consists of their views of the legal aspect of a c. i. f. contract; but such testimony was but testimony as to the law of the case and must be disregarded. There is a standard definition of that contract in the opinion of Blackburn, Justice, one of the judges called in by the House of Lords in Ireland v. Livingston, 5 Eng. & Irish Appeals, 395:

“The terms at a price to cover cost, freight and insurance, payment by acceptance on receiving shipping-documents, are very usual and are perfectly understood in practice. The invoice is made out debiting the consignee with the agreed price (or the actual cost and commission, with the premiums of insurance, and the freight, as the case may be), and giving him credit for the amount of the freight which he will have to pay to the ship owner on actual delivery, and for the balance a draft is drawn on the consignee which he is bound to accept (if the shipment be in conformity with his contract) on having handed to him the charter party, bill of lading and policy of insurance. Should the ship arrive with the goods on board he will have to pay the freight, which will make up the amount he has engaged to pay. Should the goods not be delivered in consequence of a peril of the sea, he is not. called on to pay the freight, and he will recover the amount of his interest in the goods under the policy. If the nondelivery is in consequence of some misconduct on the part of the master or mariners, not covered by the policy, he will recover it from the ship owner. In substance, therefore, the consignee pays, though in a different manner, the same price as if the goods had been bought and shipped to him in the ordinary way. ’ ’

This statement was adopted as a correct statement of the law in Benjamin on Sales (7th Ed.) 571.

The contention of appellant that in a c. i. f. contract the place of delivery is the point where the article sold was placed on shipboard, and that the market price at that place is to be taken in estimating damages in case of breach, cannot be sustained. The place of delivery, as has been said, was Antwerp, not the point on the American coast where the cake was to be placed on shipboard, and the defendant knew that the cake was intended for Antwerp. Stroms Bruks Aktie Bolag v. Hutchinson, L. R., A. C., 515; Sutherland on Damages (3rd Ed.) sec. 653.

' “If the vendor knows when.he makes his contract that the property is to be sold in another market his liability is measured by adding to the contract price at the agreed time and place of delivery the-cost of transporting the property to such market, less the price there at the time it would have reached its destination if there had been no breach.” Van Arsdale v. Rundel, 82 Ill. 63.

In Diorst v. Burton, 47 N. Y. 167, an action of fraud in the sale of cheese made at Frankfort, New York, and purchased there to be forwarded to and sold in New York, it was said, page 174:

“The place of delivery was Frankfort, but by the terms of the contract, New York was the market to which it was to be forwarded, and where it was to be sold, and the market price there may be regarded as within the contemplation of the parties.”

To the same effect are: Boyd v. L. H. Quinn Co., 17 Misc. (N. Y.) 278; Wallingford v. Kaiser, 191 N. Y. 392; Cockburn v. Ashland Lumber Co., 54 Wis. 619; Louis Cook Mfg. Co. v. Randall & Dickey, 62 Iowa 244.

The contention that plaintiff was entitled to nominal damages only because the market price at Antwerp on April 30th of cake to arrive May 14th was not shown, is without merit. A vessel sailing from the American Atlantic seaboard April 30th would arrive in Antwerp May 14th, and plaintiff had the right to wait until that time, holding the contract as prospectively binding. Roehm v. Horst, 178 U. S. 1; Long v. Conklin, 75 Ill. 32.

Conceding the plaintiff was entitled to the benefit of the market price at Antwerp on May 14th, the proof is ample to support the award of damages.

The finding of the Municipal Court is correct and the judgment is affirmed,

Affirmed.


text:
    O. C. Wilson Advertising Company, Appellee, v. Louis T. Orr and J. L. Donahue, Appellants.
    Gen. No. 21,425.
    1. Contracts, § 385

      -—when evidence sufficient to sustain finding as to existence of contract for advertising and compliance therewith. In an action to recover for advertising, evidence examined, and held to warrant a finding that defendants made a joint original promise to pay for the insertion of advertising in plaintiff’s newspapers, and that plaintiff caused the insertion of the advertisements in accordance with the terms of defendants’ promise.
    2. Evidence, § 110

      —when act of publishing newspaper may be proved without producing newspaper. In an action to recover for advertising, it is not error to admit evidence that advertisements were inserted in newspapers without the production of the newspapers containing the advertisements, since the act of publishing a document regarded as distinct from its terms may he proved without producing it.
    3. Contracts, § 384

      —-when evidence sufficient to sustain verdict

      in action for advertising. In an action to recover for advertising, evidence examined and held sufficient to sustain a verdict for plaintiff.
    Appeal from the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Rehearing denied February 14, 1916.
    Cavender & Kaiser, for appellants; Donald L. Morrill, of counsel.
    Beck & Mies, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.

This appeal brings in review a judgment for nine hundred and ninety dollars entered on the verdict of a jury in an action brought by the appellee against the appellants in the Municipal Court.

From the evidence we think that the jury might properly find that the defendants made to the plaintiff a joint original promise to pay for certain advertising which the plaintiff was to insert in certain newspapers, and that the plaintiff caused the advertisements agreed on to be inserted in newspapers in accordance with the terms of defendants’ promise.

The contention of appellants that the court erred in admitting evidence that the advertisements were inserted in newspapers without producing the papers is without merit. The act of publishing a document regarded as distinct from the terms of the document may be proved without production. 2 Wigmore on Evidence, sec. 1248; City of Des Moines v. Casady, 21 Iowa 572; Moore v. Gilliam, 5 Mun. (Va.) 348; Dingle v. City of Chicago, 172 Ill. 170; McChesney v. People, 178 Ill. 542.

The evidence is, in our opinion, ample to sustain the verdict, we find in the record no reversible error in procedure, and the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Anna Werner Prise, Appellee, v. Michael Prise, Appellant.
    Gen. No. 21,678.
    1. Divorce, § 140

      —when application for solicitor's fees too late. In a bill for divorce, an application for solicitor’s fees made after the dismissal of the bill comes too late.
    2. Divorce, § 85

      —how motion for allowances must he made. Motions for allowances under section 15 of the Divorce Act (J. & A. T 4230), must be made in the name of the wife and the allowance must be made to her, courts having no power to make such allowance to parties whom the wife has employed.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1915.
    Orders reversed.
    Opinion filed January 31, 1916.
    Ryan & Lewis, for appellant.
    No appearance for appellee.

      See Illinois Notes Digest, Vols, XX to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.

March 22, 1914, Anna Werner Prise filed in the Circuit Court a bill for divorce against her husband, the appellant here. Defendant answered the bill and filed a cross-bill August 3, 1914, against the complainant charging her with cruelty, drunkenness and adultery with one Jim Bell, and praying for a divorce. Complainant answered the cross-bill, denying the charges therein made against her. August 7, 1914, the cause was heard by Judge Petit, who entered a decree finding complainant guilty of adultery with Bell and also finding her guilty of habitual drunkenness for more than two years before the filing of the bill. By the decree complainant’s bill was dismissed for want of equity and the cross-complainant was granted a divorce on his cross-bill. The decree was entered at the July term. August 18th, a day of the August term, Effie Seeds Wellner filed her affidavit, stating inter alia that she was awarded fifty dollars solicitor’s fees; that the cause was continued to the August term. No order awarding affiant solicitor’s fees or continuing the cause appears in the record; but the court, Judge Windés presiding, on said 18th day of August ordered defendant to pay Effie Seeds Wellner fifty dollars, and that on failure of defendant to do so, he should show cause why he should not be found guilty of contempt of court. An attachment was issued for defendant and cross-complainant, and the court found that he had failed to pay Effie Seeds Wellner fifty dollars, and ordered that he be committed to the county jail for thirty days. He prosecutes this appeal to reverse the order directing him to pay Effie Seeds Wellner fifty dollars and the order committing' him to the county jail.

The application for solicitor’s fees was not made until the August term, and complainant’s bill was dismissed for want of equity at the July term. The application for solicitor’s fees, not having been made until after the bill had been dismissed, came too late. McCulloch v. Murphy, 45 Ill. 256; Womacks v. Womacks, 125 Ill. App. 441.

Motions for allowances under the statute concerning divorce and separate maintenance must be made in the wife’s name, and the allowance must be made to her and not to the parties whom she has employed, and the court has no power to make an allowance in favor of such parties. Anderson v. Steger, 173 Ill. 113; Lynch v. Lynch, 99 Ill. App. 459; Harris v. Harris, 109 Ill. App. 148; Miles v. Miles, 102 Ill. App. 130.

The order allowing fifty dollars solicitor’s fees to Effie Seeds Wellner and the order committing appellant to the county jail are reversed.

Orders reversed.


text:
    L. Brent Vaughan, Appellant, v. Alice R. Vaughan, Appellee. Alice R. Vaughan, Appellee, v. L. Brent Vaughan, Appellant.
    Gen. No. 21,759.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed January 31, 1916.
    Rehearing denied February 14, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill for divorce by L. Brent Vaughan, complainant, against Alice B. Vaughan, defendant, in the Circuit Court of Cook county, and cross-bill by defendant against complainant for separate maintenance. From a decree dismissing the bill for want of equity, and granting the prayer of the cross-bill, with an allowance of seventy-five dollars per month and one hundred and seventy-five dollars for solicitor’s fees, complainant appeals.
    The parties were married October 11, 1899, and lived together as husband and wife until October, 1910, and thereafter continued to live in the same house until December 4, 1912.
    Complainant was forced to leave his house by a foreclosure of the mortgage and rented two rooms with facilities for light housekeeping, and wanted his wife and their twelve-year-old daughter to occupy, such rooms, but did not himself live there, but went to the Lexington Hotel and later to the University Club. He did not invite his wife and daughter to come to him at either place.
    Harris F. Williams, for appellant.
    James J. Kelly, for appellee; John A. Burke and John T. Fitzgerald, of counsel.

      Abstract of the Decision.
    1. Divorce, § 53*—when motion to dismiss bill without prejudice properly refused. It is not error to deny a motion of complainant in a bill for divorce to dismiss bis bill without prejudice where a cross-bill has been filed, section 36 of the Chancery Act (J. & A. If 916) providing that “no complainant shall be allowed to dismiss his bill after a cross-bill has been filed without the consent of the defendant.”
    2. Appeal and error, § 725*—when record need not show findings of fact. No findings of fact are required to support a decree where the evidence has been preserved by a certificate of evidence.
    3. Husband and wife, § 217*—when decree on cross-bill in divorce action for separate support and maintenance and solicitor’s fees proper. In a bill for divorce by a husband where defendant filed a cross-bill for separate maintenance, and the evidence warranted a finding that defendant was living separate and apart from her husband without her fault, defendant is entitled on her cross-bill to a decree for separate support and maintenance and solicitor’s fees.
   Mr. Justice Baker

delivered the opinion of the court.