text:
    Women’s Catholic Order of Foresters, v. Helen Domke, appellee. Anna Quaiver et al., appellants.
    Gen. No. 24,963.
    Bill of interpleader to determine rights of claimants under beneficiary certificate. Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the March term, 1919. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed June 16, 1919.
    Rehearing denied June 30, 1919.
    Thurman, Hume & Kennedy, for appellants. Richards, Voigt & Darby, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Ropp Motor Company, appellee, v. L. A. Ruda, appellant.
    Gen. No. 24,977.
    Failure of record to present question for review. Appeal from the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed June 16, 1919.
    Charles J. Miehal, for appellant; Charles J. Mfichal and John H. MeAuliffe, of counsel. Bassler, Bippus & Rose, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Samuel M. Ash, assignee of Harry F. Rose and James R. Cox, trading as Vaudeville Publishing Company, appellant, v. Tai Jue Quong, otherwise known as Jue Quong Tai, appellee.
    Gen. No. 24,989.
    Attachment proceeding. Attachment quashed, discharge of garnishee and judgment of nil capiat entered. Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed June 16, 1919.
    Leon A. Berezniak, for appellant. Adolph Marks, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Louis Richard, trading as L. Richard & Company, appellee, v. United Mills Company, appellant.
    Gen. No. 25,006.
    Judgment by default for plaintiff on striking affidavit of defense from files. Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed June 16, 1919.
    Rehearing denied June 30, 1919.
    Jones, Addington, Ames & Seibold, for appellant; Albert F. Meeklenburger, of counsel. .Felsenthal & Wilson, for appellee; A. R. Miller, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    Albert Muzio, by Andrew Muzio, plaintiff in error, v. William Lowry et al., defendants in error.
    Gen. No. 24,906.
    Action by child to recover for personal injuries on being struck by wagon. Judgment for defendants. Error to the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed June 16, 1919.
    Rehearing denied June 30, 1919.
    Weldon Webster, for plaintiff in error. Joel C. Carlson, for defendant in error Younger-Devine Dairy Company.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Harry Klein, plaintiff in error.
    Gen. No. 24,935.
    Prosecution on charge of vagrancy. Judgment of guilty. Error to the Municipal Court of Chicago; the Hon. Sheridan E. Pry, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed June 16, 1919.
    James P. Fardy, for plaintiff in error. Maclay Hoyne and Edward E. Wilson, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    William C. Backof, appellant, v. Anton J. Cermak, bailiff of Municipal Court of Chicago, and Nathan Schwartz, by Harry Levy, guardian ad litem, appellees.
    Gen. No. 24,981.
    Suit to determine right to property levied upon under execution. Judgment for defendants. Appeal from the Municipal Court of Chicago; the Hon. Hugh ,R. Stewart, Judge, presiding. Hoard in this court at the March term, 1919.
    Affirmed.
    Opinion filed June 16, 1919.
    Thomas E. Swanson and Rush B. Johnson, for appellant. Ho appearance for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Era Bond, plaintiff in error.
    Gen. No. 24,493.
    Prosecution for criminal conspiracy to commit larceny. Judgment of guilty. Error to the Criminal Court of Cook county; the Hon. Robert E. Crowe, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed June 23, 1919.
    Bernard J. Mahony and Charles P. R. Macaulay, for plaintiff in error. Maclay Hoyne, Edward E. Wilson and John K. Murphy, for de-. fendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Stephan Gorecki et al., appellants, v. Charles Hetherington et al., appellees.
    Gen. No. 24,700.
    Suit to set aside promissory notes and trust deed securing same, on account of fraud and conspiracy. Decree in favor of complainants. Appeal from the Circuit Court of Cook county; the Hon. Thomas G; Windes, Judge, .presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed June 23, 1919.
    E. T. Noonan, for appellants; W. F. Cooling, of counsel. Sonnensehein, Berkson, Lautmann & Levinson, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Presiding Justice Thomson

text:
    Laura Buehrle, executrix of the last will and testament of Mathias A. Buehrle, deceased, appellant, v. William J. F. Buehrle, appellee.
    Gen. No. 24,216.
    Suit for appointment of receiver of partnership and for accounting. Decree for accounting only. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded with directions.
    Opinion filed July 2, 1919.

      Henry P. Heizer and Edward D. Shurtleff, for appellant. Fisehel & Hirsch and Holt, Cutting & Sidley, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    Anton Cermak, bailiff of Municipal Court of Chicago, for use of George K. Spoor, plaintiff in error, v. The Rudolph Wurlitzer Company and United States Fidelity & Guaranty Company, defendants below. The Rudolph Wurlitzer Company, defendant in error.
    Gen. No. 24,395.
    Action on replevin bond. Judgment for defendants. Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed July 2, 1919.
    William A. Jennings, for plaintiff in error. No appearance for defendant in error.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    Fort Dearborn Fireproof Storage Company, appellee, v. United Cigar Stores Company of America, appellant.
    Gen. No. 24,425.
    Action to recover damages to truck in collision with defendant’s truck. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Horn. James Donahoe, Judge, presiding. Heard- in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed July 2, 1919.
    Musgrave, Oppenheim & Lee, for appellant. Truman H. Miner and A. R. Hulbert, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    Alfredo Alvarez, trading as Alfredo Alvarez & Company, defendant in error, v. Amelia Fernandez, surviving partner of Fernandez Havana Company, plaintiff in error.
    Gen. No. 24,439.
    Action to recover balance due for goods sold and delivered. Judgment for plaintiff. Error to the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed July 2, 1919.
    William J. Andrews, for plaintiff in error; Andrews & Cohen and L. A. Gilmore, of counsel. Clithero & Swett, for defendant in error; Frank W. Swett, of counsel.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Conrad A. Manson, defendant in error, v. Irving I. Stone et al., plaintiffs in error.
    Gen. No. 24,399.
    Action to recover balance due on promissory notes. Judgment for plaintiff. Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed July 2, 1919.
    Walter True, for plaintiffs in error; James S. Wight, of counsel. Erich E. Paeyna and Oscar M. Meusel, for defendant in error; Erich E. Paeyna, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Allen Krack, by Nicholas Krack, defendant in error, v. William T. Maypole, plaintiff in error.
    Gen. No. 24,423.
    Action to recover damages resulting from bite of dog. Judgment for plaintiff. Error to the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed with finding of fact.
    Opinion filed July 2, 1919.
    Taylor, J., dissenting.
    Beckman, Cottrell & Phillips, for plaintiff in error. Sumner C. Palmer, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Taylor

text:
    Ferdinand W. Jaros, plaintiff in error, v. Edward Johanning and A. M. Wertzberger, copartners, defendants in error.
    Gen. No. 24,034.
    Action to recover attorney’s fees. Judgment for plaintiff. Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded.
    Opinion filed July 2, 1919.
    F. W. Jaros, for plaintiff in error. Oscar M. Lumby, for defendant in error Edward Johanning.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    R. P. Lightfoot, appellee, v. Monarch Tool & Machinery Company, appellant.
    Gen. No. 24,148.
    Suit for accounting. Decree confirming master’s report. Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term; 1919. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 2, 1919.
    Rehearing denied July 16, 1919.
    Walter True, for appellant; James S. Wight, of counsel. Harford & Lightfoot, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Louis B. Clingman and L. P. Clingman, trading as L. P. Clingman & Company, appellees, v. John F. Higgins, appellant.
    Gen. No. 24,281.
    Action to recover on promissory notes. Judgment, for plaintiffs. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 2, 1919.
    Rehearing denied July 16, 1919.
    Fyffe, Ryner & Dale, for appellant. Edward B. Healy, for appellees.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Henry Horner & Company, appellant, v. Frank Walenga and Mary Walenga. Frank Walenga, appellee.
    Gen. No. 24,432.
    Action to recover balance due on account. Judgment for defendant on set-off. Appeal from the Municipal Court of Chicago; the Hon. Bernard P. Barasa, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed July 2, 1919.
    Mayer, Meyer, Austrian & Platt, for appellant; Jay C. Lytle, of counsel. Elmer J. Sehnaekenberg, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court


text:
    John M. McClun, appellee, v. John Radu, appellant.
    Gen. No. 24,498.
    Action to recover on promissory note. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed July 2, 1919.
    George E. Dawson, for appellant. Bluim, Teed, MeKinlay & Siqueland, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Oliver W. Fitts, appellee, v. John E. Shatford and C. E. Sawyer, appellants.
    Gen. No. 24,500.
    Action to recover on promissory note. Judgment for plaintiff:. Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed July 2, 1919.
    Miller, Starr, Brown, Packard & Peckham, for appellants. Thomas McCall, of counsel. Edward L. England, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Joseph T. Delfosse, appellee, v. William E. Hunter, appellant.
    Gen. No. 24,561.
    Action to recover on promissory note. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed July 2, 1919.
    Anderson & Anderson, for appellant. George L. Schein, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Caroline A. Dyckman et al., appellants, v. Mathias L. Raftree et al. Mathias L. Raftree, appellee.
    Gen. No. 25,326.
    Cross-bill to enjoin further prosecution of ejectment suit. Decree for complainant. Interlocutory appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed July 16, 1919.
    Rehearing denied July 25, 1919, and opinion modified.
    Vincent D. Wyman, Harry C. Kinne and Charles E. Carpenter, for appellants. John S. Stevens, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


author: Mr. Justice O'Connor

text:
    Mary Gentry, administratrix of the estate of John S. Gentry, deceased, appellee, v. Chicago & Alton Railroad Company, appellant.
    Gen. No. 24,173.
    Action under Federal Employer’s Liability Act to recover for death of employee. Judgment for plaintiff. Appeal from j;he Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed July 16, 1919.
    Rehearing denied July 25, 1919.
    Thomson, P. J., dissenting.
    Winston, Strawn & Shaw, for appellant; Edward W. Everett, of counsel. Rice, Lowes, O’Neil & Richards, for appellee.
   Mr. Justice O'Connor

delivered the opinion of the court.


text:
    Mike Kassa and Sophia Kassa, appellees, v. Celia Goldrich, appellant.
    Gen. No. 24,528.
    Action of assumpsit for money loaned. Judgment for plaintiffs. Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed July 16, 1919.
    Franklin S. Gatlin and Louis Bieger, for appellant. A. A. Worsley, for appellees; Lawrence Harmon, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    Second District.
    A. Weinberg, appellee, v. Chicago & Northwestern Railway Company, appellant.
    Gen. No. 6,607.
    Action to recover damages to freight by freezing during transportation. Judgment for plaintiff. Appeal from the Circuit Court of Winnebago county; the Hon. A. H. Frost and Hon. Robert K. Welsh, Judges, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed July 18, 1919.
    Stanton A. Hyer, for appellant. William G. Wheeler, of counsel. J. E. Goembel and Walter E. Healy, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Alvin Sullivan, defendant in error, v. William Ohlhaver Company, plaintiff in error.
    Gen. No. 6,650.
    Action to recover for personal injuries sustained in collision between automobiles and truck. Judgment for plaintiff. Error to the Circuit Court of Kane county; the Hon. C. F. Irwin, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    Alfred Boy Hulbert, Truman Henry Miner and Mighell, Gunsul & Allen, for plaintiff in error; Alfred B-oy Hulbert of counsel. Alschuler, Putnam & FLannigan, for defendant in error.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Lillian Ash, appellee, v. Blanche I. Laukhuf et al., appellants.
    Gen. No. 6,659.
    Suit to foreclose trust deed and appoint receiver to collect rent. Decree for complainant. Appeal from the Circuit Court of Peoria county; the Hon. Charles V. Miles, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    George K. Beasley, for appellants. Covey, Campbell & Covey, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Eli McNames, appellee, v. Eli Smith, appellant.
    Gen. No. 6,669.
    Action to recover commission for sale of real estate. Judgment foi plaintiff. Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding.. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    Fisher, North, Welsh & Linseott, for appellant. Frank E. Maynard, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Sol Ginsburg, appellee, v. H. C. Gibson, appellant.
    Gen. No. 6,699.
    Action to determine property right in personal property levied upon under execution. Judgment for plaintiff. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    Arthur Keithley, for appellant. A. Jacobson, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Carnes

text:
    Helen Mamaly, appellee, v. Calvin Countryman et al., appellants.
    Gen. No. 6,658.
    Action to recover for personal injuries sustained by fall on giving away of railing of porch. Judgment for plaintiff. Appeal from the Circuit Court of Winnebago county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    Frank E. Maynard, for appellants. David D. Madden, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.


text:
    William H. Hubbard, appellee, v. Sterling, Dixon & Eastern Electric Railway Company, appellant.
    Gen. No. 6,662.
    Action to recover for personal injuries and for injury to truck in collision with electric railroad car. Judgment for plaintiff. Appeal from the City Court of Sterling; the Hon. Carl E. Sheldon, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    Henry S. Dixon and George C. Dixon, for appellant. Henry C. Ward, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.


text:
    N. J. Sandberg Company, appellee, v. B. E. Simmons et al., appellants.
    Gen. No. 6,682.
    Action to recover on promissory .note. Judgment for plaintiff. Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    A. F. Beaubien, for appellants. Gustav E. Beerly and Heydecker & Heydecker, for appellee.
   Mr. Justice Carnes

delivered the opinion of the court.


author: Mr. Justice Dibell

text:
    Sampson T. Rowe, appellant, v. Louis R. Phillips et al., appellees.
    Gen. No. 6,666.
    Action to recover for fraud in the sale of corporate stock. Order striking declaration from files. Appeal from the Circuit Court of Marshall county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed and remanded.
    Opinion filed July 18, 1919.
    Niehaus, P. J., took no part.
    P. W. Potter and Barnes, Magoon & Black, for appellant. Prank J. Quinn, Henry E. Jacobs and Daily, Miller, McCormick & Radley, for appellees Louis R. Phillips and L. Edgar Jerome.
   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Clarence E. Turney, appellee, v. Russell Shepherd, appellant.
    Gen. No. 6,674.
    Action of replevin. Judgment for plaintiff. Appeal from the Circuit Court of Whiteside county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed July 18, 1919.
    Earl L. Scott and Jacob Cantlin, for appellant. J. J. Ludens, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Val Weber Company, appellant, v. A. Slocum, appellee.
    Gen. No. 6,684.
    Attachment proceeding. Judgment for defendant. Appeal from the County Court of Peoria county; the Hon. Robert H. Lovett, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed
    Opinion filed July 18, 1919.
    Cameron & Anderson, for appellant. Tiehenor, Todd, Wilson & Barnett, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.


author: Mr. Justice Barnes

text:
    Jerome Koscal, by Wendel Koscal, Appellee, v. Sidney Wolfson and Henry Wolfson, trading as Wolfson & Company, Appellants.
    Gen. No. 24,568.
    1. Municipal Court op Chicago, § 27*—when hill of exceptions will he stricken from record. A bill of exceptions was stricken from the record, where it appeared that the time for its filing expired on July 3 when it was marked as presented to one of the judges of the Municipal Court other than the trial judge and ordered to he filed, and where the signature to its completeness was dated September 3 following, nunc pro tunc July 3, and where subsequently the trial judge appended a statement dated September 24, that when the bill was so presented he was outside the State “taking a much needed rest” and so “unable” to hold court and sign such instrument, and that by long-distance telephone he directed that the judge to whom his cases were assigned should sign for him.
    2. Municipal Court op Chicago, § 27

      —when signing of hill of exceptions after last day for filing will he unavailing. The signing of a bill of exceptions after July 3, which was the last day for its filing, and on which day it had been marked as presented by a judge other than the trial judge, with the use of the words nunc pro tunc, was unavailing when there was in fact no order to that effect and nothing apparently upon which it could be based.
    3. Appeal and ekbob, § 843

      —when judge “disabled” from signing Mil of exceptions. Question, whether the absence of the trial judge by reason of “taking a much needed” rest, and being so “unable” to hold court and sign the bill of exceptions in question, was such a “disability” as is contemplated by section 81 of the Practice Act (J. & A. j[ 8618), providing for the signing of bills of exceptions, etc., by a judge other than the trial judge, in cases of disability, etc.
    Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed October 10, 1919.
    Rehearing denied October 21, 1919.
    Schuyler & Weinfeld, for appellants.
    Jacob Levy and Josiah Burnham, 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.

   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court for $1,000 in favor of the plaintiff in a personal injury suit. The errors assigned are based upon what is contained in the, bill of exceptions only, which the plaintiff has moved to strike from the transcript of record because not signed in due time by the trial judge. The facts on which the motion rests are as follows:

The time allowed for filing • the bill of exceptions expired July 3,1918, when it was marked as presented to one of the judges of said court, and ordered to be filed. The certificate to its completeness and correctness is dated and signed as follows: 1 ‘ Dated this third day of September, 1918, nunc pro tunc July 3, 1918.” Appended is a statement certified to by the trial judge on September 24, 1918, to the effect that when the bill of exceptions was so presented he was outside the State “taking a much needed rest” and so “unable” to hold court and sign such instruments; that defendant showed due diligence in seeking to present the said bill and report to him for signature, and that he directed by long-distance telephone that the judge to whom his cases were assigned should sign for him.

There is no order of court in the transcript of record bearing on this subject except that above referred to directing the bill of exceptions to be filed on the date it was presented. But the filing of it was unavailing unless it was properly signed as of said date. It was not enough to that end that the trial judge signed it at a subsequent date using the words “nunc pro tunc July 3, 1918,” when there was in fact no order to that effect and nothing apparently upon which it could be based.

The facts are similiar to those in People v. Rosenwald, 266 Ill. 548. In that case the bill of exceptions was presented within proper time to another judge of the court in the absence of the trial judge, who after the time for presenting the same for signature had elapsed signed it, reciting that it was done nunc pro tunc as of the date it was presented to the other judge,. The court held that if the trial judg’e had signed the instrument as of the date it was presented in the absence of any evidence showing that it was signed on a different date without authority, it would be presumed he had authority so to sign; but where it was at a later date after the time for signing had expired, and there was nothing on which to base a nunc pro tunc order, then a recitation or order that it was done nunc pro tunc was unavailing and unauthorized under our practice. The court said: “If a nunc pro tunc order is entered there must be sufficient in the record itself to show affirmatively that the trial judge was authorized, under the law, to enter such order”; and, referring to facts similar to those at bar, said: ‘ ‘ This bill does not show on its face, affirmatively, why Judge Hopkins” (to whom it was presented) “made the entry that he did on the transcript of the record or the authority by which Judge Olson” (the trial judge) “entered the nunc pro tunc order.”

The supplemental certificate of the trial judge in the case at bar does not better the situation. Even if it could be deemed an amendent to his certificate that was authorized, the facts recited therein were until then locked up in his breast and were not duly preserved in a bill of exceptions, or recited by the presiding judge as a reason for presenting the bill of exceptions to him, and did not otherwise appear in the record, and hence would at that time have furnished no basis for a rmne pro tunc order, even if one had been made. The only authority the court had when it signed the certificate, whether on September 3 without explanation, or September 24 with one, was such as had a basis for a legal order to sign the bill nunc pro tunc, and the record furnishes no such basis.

In view of the rulings on this subject, the seeming harshness of the situation is one that can be obviated only by proper recitals made by the judge to whom the bill is presented or otherwise preserved in the record, or by recourse to the legislature. But the statute bearing on the subject cannot be stretched to cover a situation like this, even if the explanation could be deemed as setting forth such a “disability” as is contemplated by section 81 of the Practice Act (J. & A. 8618). (See Rosenwald case, supra, p. 553.) Accordingly the motion to strike the bill of exceptions must be allowed. As none of the assignments of error rest on the common-law record, the judgment must be affirmed.

Affirmed.


text:
    Walter L. Widlar and John E. Fitzgerald, Appellees, v. Federal Life Insurance Company, Appellant.
    Gen. No. 24,575.
    1. Assumpsit, Action of, § 44*—when action for money had and received will not lie. Where R, as vice president of a corporation, offered to a Life Insurance Company, through H, its president, to whom he owed a note for $3,000, to sell negotiable notes of the corporation of the face value of $10,000, to net such corporation $9,000 and to give R $1,000 as commission which he promised to apply upon the note held by H, and where the transaction was accordingly completed after the insurance company had been informed of the fact relating to commissions, and where three checks, two aggregating $9,000 and one for $1,231.67 given to R’s order who indorsed the first two to his principal, and the third to H who had it cashed by the insurance company and credited the amount on the note held by him, and where R did not disclose to his principal the facts as to the $1,231.67 check, there was no basis for the claim that the insurance company acted collusively and had received money to the use of the corporation.
    2. Bills and notes, § 235*—when holder of notes has authority to sell same. The holder of negotiable notes duly indorsed in blank
    ■ is clothed with authority to sell the notes and receive the purchase price.
    3. Bills and notes, § 235*—when purchaser of notes from agent not liable to principal for money paid to agent. A purchaser who closed a sale of notes owned by a corporation, with an agent of the latter authorized to sell and receive the 'purchase price, was not responsible to the agent’s principal for what the agent afterwards did with the money.
    4. Appeal and error, § 578*—necessity of formal exceptions to judgment. Since the amendment of 1911 to section 81 of the Practice Act (J. & A. if 8618), formal exceptions to a judgment are no longer necessary, and hence need not have been preserved.
    5. Fraud, § 44

      —when corporation must bear loss of money paid to agent. Under the rule that as between two innocent parties a loss must fall on him who puts it in the power of a third party to commit the act causing it, the corporate owner of notes which it authorized its agent to sell was responsible for the agent’s fraudulent use of the purchase money.

      Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed with findings of fact.
    Opinion filed October 10, 1919.
    Rehearing denied October 21,1919.
    Charles A. Atkinson, for appellant.
    Samuel B. Hill, for appellees.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This is a suit brought by appellees, assignees of the Chicago Stove & Range Company, herein referred to as the Stove Company, against appellant for money had and received for the use of plaintiffs, basing the claim upon fraud and misrepresentation, which in our opinion was not sustained by a preponderance of the evidence.

These material facts are undisputed: Said Stove Company owned certain negotiable notes of the face value of $10,000 and accrued interest, secured by a trust deed, which it indorsed and handed to its vice president Ramsey to sell. He undertook a sale to appellant through its president Isaac M. Hamilton, to whom he was indebted on his promissory note for $3,000, telling Hamilton that he tried to sell the notes' elsewhere, that $7,500 was the best offer he had received, that he was authorized to sell to net the Stove Company $9,000, that he would have the excess for his commission, which he would apply on such indebtedness if appellant purchased, and that the notes were amply secured for their face value. Hamilton said he would have to, and did, submit the entire proposition to appellant’s finance committee, which saw no impropriety in such an arrangement if the notes were amply secured. After investigating the security the committee recommended the purchase for their face value of $10,231.67, which was made by giving appellant’s cheeks to Ramsey’s order for $5,000, $4,000 and $1,231.67, respectively. That for $4,000 was at once delivered by Ramsey to the Stove Company, that for $5,000 was held 2 days for investigation of title and then delivered to Ramsey and by him to said company, and that for $1,231.67 (the excess over $9,000) was indorsed by Ramsey and handed to Hamilton, who got it cashed by appellant and applied the amount on Ramsey’s note. Ramsey did not disclose to his principal the facts respecting the check for $1,231.67.

On this state of facts there is no basis for the claim that appellant had and received money to and for plaintiff’s use. Appellant never retained or received back any of the purchase price. While Hamilton in his private capacity after full disclosure to the company of which he was president received part of it relying on Ramsey’s representation that it was his commission in the transaction, appellant was in no way concerned with such disposition of it so long as upon full knowledge of the facts it deemed the notes worth their face and was willing to pay that sum for them, and cashing its own check afterwards for Hamilton’s accommodation did not alter the situation.

Ramsey’s authority to sell and appellant’s right to purchase are not questioned, ■ and could not well be, for Ramsey came with the negotiable notes duly indorsed in blank by the holder and thereby clothed with authority to sell them and receive the purchase price. (Story on Agency, sec. 444.) It is not a question here of the agent’s authority to sell, which is apparently conceded, nor, so far as appellant is concerned, of limitation on the agent’s power to handle the proceeds of the sale, for appellant not only had no notice with respect thereto but received no portion of the proceeds and had no direct interest in the arrangement between Hamilton and Ramsey.

Contrary to appellees’ contention, we find nothing in the transaction or the evidence indicating appellant’s entry into a collusive arrangement with Ramsey to conceal the facts with regard to j?he sale. That Hamilton was to receive Ramsey’s alleged commission was not a condition to the sale so far as appellant was concerned. Appellant having closed the deal with an agent of the Stove Company authorized to sell and receive the purchase price, it was not responsible to his principal for what he afterwards did with the money. The fact that he subsequently became an agent of-appellant had no relation to the fact that at that time he was acting solely as agent for the Stove Company, not only within the apparent but actual scope of his authority, and if he was guilty of any fraudulent act, then as between the two innocent parties, appellant and appellees (or their assignor), the loss must on a familiar principle fall on him who puts it in the power of a third party to permit the act causing it. Appellant was in no phase of the case responsible for the use by another’s agent of the purchase money he was authorized to receive from it. As said in Mason v. Bauman, 62 Ill. 76:

“A man is always bound by the fraudulent acts of his own agent perpetrated on a third person, whilst acting under his authority in reference to the subject of his agency; but we are aware of no rule or any adjudged case which holds that a person can ever be bound by the fraudulent acts of another man’s agent. ’ ’

Appellees urge that questions as to the sufficiency of the evidence cannot be raised in the absence of an exception to the judgment where, as here, the case was tried without a jury, but overlook that since the amendment of 1911 to section 81 of the Practice Act (J. & A. ft 8618) formal exceptions are no longer necessary, and hence need not be preserved. (Miller v. Anderson, 269 Ill. 608.) The contention that the bill of exceptions is incomplete is also untenable.

In this view of the evidence we need not discuss other points raised. The judgment will accordingly he reversed and one entered here for appellant with findings of fact.

Reversed with findings of fact.

Findings of fact. We find that appellant, Federal Life Insurance Company, did not at the commencement of this suit, nor prior thereto, have or receive any money to the use of appellees or their assignor, Chicago Stove & Range Company, from the proceeds of the sale of the notes referred to in appellees’ statement of claim, or otherwise, and that said appellant was not a party to any fraud or misrepresentation whereby said Chicago Stove & Range Company failed to receive the full amount of said proceeds.


text:
    The Class Journal Company, Appellee, v. Edward S. Harlan, Appellant.
    Gen. No. 21,719.
    Cobpobations, § 720a

      —when agent of foreign corporation which has not complied with statute is not liable on contract. An agent of a foreign corporation doing business in this State without complying with the statute relating to foreign corporations was not liable upon an advertising contract on the ground that he made the contract for the corporation, in view of the allegations of the affidavit of defense that the contract in question was not made in this state, and in the absence of proof on plaintiff’s part that it was so made.
    Appeal from the Municipal Court of Chicago; the Hon. Habby P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed.
    Opinion filed October 10, 1919.

      Cleland, Lee & Phelps, for appellant; Egbert G. Phelps, of counsel.
    Adams, Childs, Bobb & Wescott, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

The judgment appealed from is for $246.20, a balance due upon a contract for advertising in plaintiff’s publication. The contract was in the name of the Miller Carburetor Sales Corporation and made through appellant as its president. Both Harlan and the corporation were made party defendants and charged with joint liability and promise to pay, on which issue was taken. The corporation was dismissed out of the ease and the court entered a judgment on the finding and issues against Harlan. There was no proof of a joint liability or of any liability by Harlan. Presumably the court deemed him liable simply by reason of the allegations and proof that said sales corporation was a foreign corporation doing business for profit in this State without complying with the statutory provisions relating to such foreign corporations, and on the ground that Harlan made the contract for it. But the affidavit of defense alleged that said contract was not made in this State and plaintiff did not attempt to show that it was, as he was bound to do to support his allegations and establish liability. For the liability, if any, must arise out of the contract in question under the rule recognized in Joseph T. Ryerson T. Son v. Shaw, 277 Ill. 524, “that a person who assumes to act as agent for a legally incompetent principal renders himself personally liable to the person with whom he deals unless such person knows of the want of authority.” But in that case and those cited therein the corporation was incompetent to transact the particular business out of which the liability arose hy reason of its failure to comply with the laws of the State where the business was transacted or contract made. The Miller Carburetor Sales Company is a California corporation and for aught that appears to the contrary the contract in question was made where it was authorized to exercise its functions. Harlan could not be held liable under the rule applied in the Ryerson case, supra, simply because the corporation unlawfully did other business in this State. There being no proof that the contract entered into through Harlan was made in this State or where it was invalid, and no proof of his liability on any other recognized theory, the judgment must be reversed. We need not, therefore, discuss the questions of procedure that otherwise might be pertinent.

Reversed.


author: Mr. Justice G-ridley

text:
    Yellow Cab Company, Appellee, v. Thomas T. Hoskin Company, Appellant.
    Gen. No. 24,563.
    1. Automobiles and gabages, § 3*—when owner may replevy automobile distrained by municipal corporation for damage to latter’s property. The owner of an automobile was entitled to replevy such automobile from the bailiff of a municipal corporation known as Commissioners of Lincoln Park, who held it pursuant to a distress levied by such corporation because the automobile injured a light standard in Lincoln Park, and pending redress of the damage.
    2. Automobiles and gabages, § 2

      —when municipal corporation cannot distrain automobile injuring such corporation’s property. A municipal corporation known as Commissioners of Lincoln Park had no right, under the common-law principle permitting the owner of land to distrain cattle, damage feasant upon said land, to distrain and hold an automobile which had run into and injured a light standard in the park, until the owner should make satisfaction for the damage done.
    3. Automobiles and gakages, § 3

      —what is remedy of municipal corporation when automobile injures its property. The remedy for the damage done to property of a municipal corporation known as Commissioners of Lincoln Park by an automobile was by an appropriate action at law, and not by distress under the theory of damage feasant.

    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed October 10, 1919.
    Egbert E. Baldwin, for appellant.
    D’Ancona & Pplaum, 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.

   Mr. Justice G-ridley

delivered the opinion of the court.

Plaintiff commenced an action in replevin against the defendant in the Municipal Court of Chicago, alleging that it was the owner and lawfully entitled to the possession of an automobile, known as a “Yellow Cab, license No. 25453,” and that on June 24, 1918, defendant wrongfully took and wrongfully detained said cab from the plaintiff. The writ was executed by the bailiff of the Municipal Court by his taking the cab from the defendant and delivering it to the plaintiff. The defendant, in its affidavit of merits, alleged that “as the bailiff of the Commissioners of Lincoln Park, a municipal corporation, it held possession of the said automobile in its warehouse, and justly so, because it says that the plaintiff, through its servant and employee, ran upon, broke and injured a certain island light, the property of the Commissioners of Lincoln Park, then and there standing upon one of the driveways in Lincoln Park, and also left said automobile standing on one of the driveways of Lincoln Park to the obstruction of the public travel thereon, in violation of the ordinances of Lincoln Park, and the said Commissioners of Lincoln Park by their proper officers for and in the name of a distress for the damages so occasioned took said automobile and delivered it to this defendant for safe-keeping until plaintiff should pay to said Commissioners of Lincoln Park the damages so incurred.” The trial court found the right to the possession of the automobile in the plaintiff and assessed plaintiff’s damages at the sum of one cent. Judgment was entered on the finding and defendant appealed.

The case was' tried on an agreed statement of facts in substance as follows: That the ownership of the automobile was in the plaintiff; that the automobile, driven by an employee of plaintiff, came in contact with an electric light standard (commonly known as an island light) the property of the Commissioners of Lincoln Park and situated in one of the driveways or boulevards of Lincoln Park, and damaged said standard to the extent of about $20, and the automobile was overturned and prior to its removal was obstructing said driveway; that it is not known whether the collision of.the automobile with said standard was the result of the negligence of the driver of the automobile or that of some other person, and that the negligence of said driver as a matter of law is not involved; that section 98 of the ordinances of the Commissioners of Lincoln Park, a municipal corporation, provides that “no person shall cut, break, mark upon, or in any way injure or deface any of the trees, * * * lamp posts, * * * buildings, or other constructions or property, in or upon said parks, boulevards, streets or driveways, under a penalty of not to exceed $50 for each and every offense”; that said automobile was seized not to recover said penalty but as security for the damage to the light standard; that an officer, acting under the direction of the Superintendent of Lincoln Park, took possession of the automobile and placed the same with the defendant until such time as the damages occasioned by plaintiff should be paid to the Commissioners of Lincoln Park; that prior to the removal of the overturned automobile from said driveway plaintiff undertook to remove the same, but said Commissioners of Lincoln Park refused to permit its removal by plaintiff, claiming the right to seize and hold the same until plaintiff would agree to pay for the cost of restoring said light standard, which plaintiff then declined to do; that prior to the commencement of this replevin suit plaintiff demanded of defendant that he surrender possession of the automobile but defendant refused; and that at the time the automobile was replevied the defendant was in the possession of the same “as the agent and bailiff of the Commissioners of Lincoln Park. ’ ’

Counsel for the defendant here argue that the trial court erred in finding the right to the possession of the automobile in plaintiff and entering judgment on the finding. The argument is, in substance, that the Commissioners of Lincoln Park had the legal right to seize the automobile and impound it with defendant until the plaintiff should pay for the damage done to said light standard, under the principle of the common law permitting the owner of land to distrain cattle, damage feasant upon said land, until the owner of the cattle should make satisfaction for the damage done. It will be noticed from the agreed statement of facts that the negligence of the driver of the automobile is not herein involved, and that the automobile was seized and attempted to be held solely as security for the damage to the light standard, and not to recover the penalty provided by the ordinance referred to.

Blackstone in his Commentaries, in writing upon the subject of Trespass to Real Property (2 Cooley’s

Black., book III, ck. 12, page 211) says:

“A man is answerable for not only his own trespass, but that of his cattle also; for, if by his negligent keeping they stray upon the land of another (and much more if he permits, or drives them on), and they there tread down his neighbor’s herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages, and the law gives the party injured a double remedy in this case; by permitting him to distrain the cattle thus damage feasant, or doing damage, till the owner shall make him satisfaction ; or else by leaving him to the common remedy in foro contentioso, by action. And the action that lies in either of these cases of trespass committed upon another’s land, either by a man himself or his cattle, is the action of trespass vi et armis; * * * for the law always couples the idea of force with that of intrusion upon the property of another. And herein, if any unwarrantable act of the defendant or his beasts in coming upon the land be proved, it is an act of trespass for which plaintiff must recover some damages; such, however, as the jury shall think proper to assess.”

Blackstone, in writing on the subject of Remedy by Distress (2 Cooley’s Black., book III, ch. 1, page 6) also says:

“A fifth case, in which the law allows a man to be his own avenger, or to minister redress to himself, is that of distraining cattle or goods for nonpayment of rent, or other duties; or, distraining another’s cattle, damage feasant, that is, doing damage or trespassing, upon his land. The former intended for the benefit of landlords, to prevent tenants from secreting or withdrawdng their effects to his prejudice; the latter arising from the necessity of the thing itself, as it might otherwise be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage. * * * A distress, districtio, is the taking a personal chattel out of the possession of the wrongdoer into the custody of the party injured, to procure a satisfaction for the wrong committed.”

From the above quotations, relative to the principle of the common law permitting the seizure of cattle damage feasant upon land, it appears that there is embodied therein the idea of the intrusion of the cattle upon the owner’s land; also, that the reason for dis-training the cattle, rather than bringing an action at law for the damages, arises “from the necessity of the thing itself, as it might otherwise be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage.” In the present case the plaintiff, by its driver or agent, in driving the automobile along said driveway, was not an intruder. The automobile was lawfully there. It was being driven in a public park and along a public driveway, when the damage to the light standard was done. Furthermore, the Commissioners of Lincoln Park, through its said officer, then either knew or could have known who was the owner of the automobile, and the “necessity” for a distress did not exist.

In Storey v. Robinson, 6 Term R. 138 (decided in 1745), the action was trespass for seizing and leading away plaintiff’s horse upon which he was riding. The defendant had distrained the horse damage feasant in the defendant’s grounds. It was held by Lord Kenyon that the distress could not be supported for the reason, as stated, that “if it were permitted to a party to distrain a horse, while any person is riding him, it would perpetually lead to a breach of the peace.” In Field v. Adams, 12 Adol. & El. 649 (decided in 1840), it was held that to a plea in trespass, justifying the taking of a horse, cart and other chattels, damage feasant, it is a good replication that the , horse, cart and chattels were, at the time of the distress, in the actual possession and under the personal care of, and then being used by, the plaintiff. In the present case the automobile at the time the damage was done was being driven by an employee of plaintiff.

Onr conclusion is that under the facts of this case and under the principle of the common law mentioned, the municipal corporation, Commissioners of Lincoln Park, was not entitled to be its “own avenger,” or to “minister redress” to itself, by the seizure or distress of the automobile, but for the damage done should have proceeded by an appropriate action at law. We do not think that the case of Ambergate, etc., Ry. Co. v. Midland Ry. Co., 2 El. & Bl. Q. B. 792, cited by counsel for defendant, under its peculiar facts, is applicable to the facts of the present ease. In our opinion the judgment of the trial court was right and it is therefore affirmed.

Affirmed.


author: Mr. Justice Gridley

text:
    In the Matter of the Estate of Richard Barnett, Deceased. Richard Barnett, Jr., Appellant, v. Gussie Barnett et al., Appellees.
    Gen. No. 24,601.
    Executors and administrators, § 175

      —when adult daughters not entitled to statutory award. Under section 77 of the Administration Act (J. & A. f 126), providing for an award to the children of a deceased housekeeper, the head of a family, residing with him or her at the time of his or her death, adult daughters were not entitled to an award where the decedent in question, their father, at the time of his death owned two adjoining lots, each improved with a separate flat building, and one of the daughters in question lived in the first flat of one of the buildings and managed the same, and all of her sisters and brothers except a married sister resided with her, and the father lived in the basement which was not connected by an inside stairway with said flat, and where the father generally took his meals with said daughter who received her flat rent free for his board; and where about a year before his death the father took up his abode with his married daughter in the adjoining building, and slept and boarded there until taken to the hospital where he died.
    Appeal from the Circuit Court of Cook county; the Hon. J. C. Eagleton, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed with finding of facts.
    Opinion filed October 10, 1919.
    Albert Peterson, for appellant.
    Frederick W. Elliott and Albert A. Luthmers, for appellees.

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

   Mr. Justice Gridley

delivered the opinion of the court.

In the matter of the estate of Eichard Barnett, deceased, an order was entered in the Probate Court of Cook county on May 19, 1917, approving the appraisers’ childrens’ award of $600 to Gussie Barnett, Emily Barnett and Sarah Barnett. From this order Eichard Barnett, Jr., prayed and perfected an appeal to the Circuit Court of Cook county. On April 23, 1918, the cause was heard before the Circuit Court without a jury, resulting in a finding and judgment approving said award of $600 and entering judgment against appellant for costs, from which judgment this appeal is taken.

Section 77 of the Act in regard to the administration of estates (J. & A. f[ 126) provides in part as follows:

“When the person’ dying is, at the time of his or her death, a housekeeper, the head of a family, and leaves no widow or surviving husband, there shall be allowed to the children of the deceased, residing with him or her at the time of his or her death (including all males under eighteen years of age, and all females), the same amount of property, and money * * * as is allowed to the widow for herself and children by this act, with the same right of selection of chattel property at its appraised value. * * * ”

The deceased departed this life while in a hospital on November 6, 1916. He was a widower. The appellees are female children of the deceased and at the time of his death were all of legal age. George S. Barnett, a son, was appointed the administrator of the estate. Appellant is also a son of the deceased.

Counsel for appellant contends that the Circuit Court erred in entering the judgment because (1) the deceased, at the time of his death, was not “a housekeeper, the head of a family,” and (2) the appellees were not residing with him at the time of his death.

In Bouvier’s Law Dictionary the word “housekeeper” is defined as “one who occupies a house.” In the Century Dictionary the word is defined as “one who occupies a house with his family, a householder.” In Bouvier’s Law Dictionary the phrase “head of a family” is defined to mean a “householder, one who provides for a family.” In Brokaw v. Ogle, 170 Ill. 115-126, it is said: “The ordinary signification, however, of a householder is, that such a person is the head of the family, upon whom the other members are dependent. The family, within the meaning of the Homestead law, consists of those members of the household who are dependent upon -the householder for support, or to whom the householder owes some duty.”

It was disclosed from the evidence, in substance, that deceased at the time of his death was, and had been for some time prior thereto, the owner of two lots known respectively as 2041 and 2043 Burling street, Chicago; that each of these lots was improved by separate flat buildings; that Gussie Barnett lived in the first flat of the building known as 2041 Burling street and “had the management and control of the house”; that George S. Barnett and Richard Barnett, her brothers, and Emily Barnett and Sarah Barnett, her sisters, lived with G-ussie Barnett; that Ida Schulte, another daughter of the deceased, lived in one of the fiats or houses at 2043 Burling street; that prior to Christmas Day, 1915, the deceased occupied a room in the basement of the building known as 2041 Burling street and took his meals generally with Gussie Barnett in her flat; that there was no inside stairway connecting said flat with said basement; that Gussie Barnett paid deceased no rent for said flat, he giving her the rent for his board; that about Christmas Day, 1915, nearly a year before his decease, he took up his abode with his daughter, Ida Schulte, at 2043 Burling street, and there slept and boarded until taken to the hospital in September, 1916; that he did not again sleep at 2041 Burling street, and that while living with Ida Schulte he “gave her the rent for his board at $12 per month.”

From the facts disclosed in this record we do not think that the deceased, at the time of his death, was •“a housekeeper, the head of a family,” or that appellees, to whom the award was allowed, were children “residing with him,” and we are of the opinion that the judgment should be reversed.

Reversed with finding of facts.

Finding of facts. We find, as ultimate facts in this case, that the deceased at the time of his death was not a housekeeper, the head of a family, and that at said time the appellees, Gussie Barnett, Emily Barnett, and Sarah Barnett, his children, were not residing with him.


text:
    Auguste Geipelt, Appellant, v. Louise M. Geipelt, Administratrix of the Estate of Theodore G. Geipelt, Appellee.
    Gen. No. 24,614.
    1. Exemptions, § 6*—property of insane person as not exempt from attachment. Neither section 1 of the Attachment Act (J. & A. f 492), providing “that in any court of record having competent jurisdiction, a creditor may have an attachment against his debtor,” etc., nor any other statutory provision of this State exempts the property of an insane person from attachment.
    2. Attachment, § 50

      —property of insane person as subject to. The property of an insane person is subject to attachment, and the insane person and not his conservator is the one to be sued.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed October 10, 1919.
    Richard J. Cooney and John A. Verhoeven, for appellant.
    Walter F. Heineman, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.

On July 11, 1917, plaintiff commenced an attachment suit against Theodore G. Geipelt in the County Court of Cook county. In her affidavit for attachment she alleged that said Theodore G. Geipelt was indebted to her in the sum of $816 upon his promissory note for $800, dated October 13, 1915, payable to her order upon demand, with interest at 3 per cent per annum; that he had within 2 years last past fraudulently conveyed or assigned his effects or a part thereof so as to hinder or delay his creditors; and that he had within the same period fraudulently concealed or disposed of his property so as to hinder or delay his creditors. On July 20, 1917, plaintiff filed a declaration, together with a copy of the note sued on, supported by an affidavit of claim. The sheriff in execution of the attachment writ levied upon certain real estate in Chicago, and personally served said Theodore G-. Geipelt. On February 14, 1918, plaintiff appeared in court and suggested the death of Theodore G. Geipelt and moved that Louise M. Geipelt, administratrix, etc., he ordered to plead or demur to the declaration and that the suit proceed. The motion was supported by an affidavit stating that “Theodore G. Geipelt departed this life subsequent to the commencement of this suit and prior to September 28, 1917, and that upon that date an order was entered in the Probate Court of Cook County, allowing Louise M. Geipelt, conservatrix for Theodore G. Geipelt (who has heretofore on September 15, 1917, in this cause, filed a plea) to proceed and administer the estate of the said Theodore G. Geipelt, deceased; that she is now acting as such administratrix, and that said deceased at the time of his death was the sole defendant in this suit.” On March 9, 1918, the court ordered that said Louise M. Geipelt, administratrix, etc., plead or demur to plaintiff’s declaration within 20 days, and on March 26, 1918, she filed a verified plea as such administratrix, in which she alleged “that prior to the time of the service of the writ in this case upon Theodore G. Geipelt, on June 7,1917, he had been by the County Court of Cook County, adjudged insane, and that on June 8, 1917, the undersigned, Louise M. Geipelt, was appointed conservatrix of the estate of said Theodore G. Geipelt, insane, by the Probate Court of Cook County, * * * and this the said Louise M. Geipelt, administratrix of said estate, is ready to verify; wherefore she prays judgment whether this court will or ought to take further cognizance of said action.”

Subsequently plaintiff demurred to said plea, but the court overruled the demurrer, and (plaintiff electing to stand by her demurrer) entered judgment for costs against plaintiff, from which judgment this appeal is taken.

We are of the opinion that the trial court erred in overruling plaintiff’s demurrer to said plea and in entering judgment against the plaintiff. In section 1 of the Attachment Act (J. & A. 492) it is provided “that in any court of record having competent jurisdiction, a creditor may have an attachment against the property of Ms debtor, * * * when the indebtedness exceeds $20,” in any one of the nine cases mentioned in the -section. Plaintiff alleged two of said nine cases mentioned in said section as grounds for the attachment. We are not aware of any statutory provision of this State exempting the property of an insane person from attachment. “An insane person may be sued, and jurisdiction over him may be acquired by the like process as if he were sane.” (16 Am. & Eng. Encyc. Law (2nd Ed.) 601; Noel v. Modern Woodmen of America, 61 Ill. App. 597-600; Maloney v. Dewey, 127 Ill. 395.) “The appointment of a committee or guardian for an insane person does not prevent the creditors of such person from commencing suits against him to recover their debts.” (16 Am. & Eng. Encyc. Law (2nd Ed.) 602; Aldrich v. Williams, 12 Vt. 413; Sternbergh v. Schoolcraft, 2 Barb. (N. Y.) 153; Steel v. Alan, 2 Bos. & Pul. 362.) And the insane person, and not his conservator, is the proper person to be sued. (Holdom v. James, 50 Ill. App. 376-378; Scott v. Bassett, 194 Ill. 602-606.) “Inasmuch as a personal suit at law can be maintained against a lunatic, there is no reason why an attachment may not, in a proper case, be issued against him.” (4 Cyc. 409; Weber v. Weitling, 18 N. J. Eq. 441.)

The judgment is reversed and the cause remanded for further proceedings.

Reversed omd remanded.


text:
    Louise Davis, Appellee, v. South Side Elevated Railroad Company, Appellant.
    Gen. No. 24,648.
    1. Cabbiebs, § 484*—when proper, in personal injury action hy passenger against elevated railroad company, to give instruction on care required of carrier. In an action for personal injuries sustained by plaintiff, who, after traveling as a passenger and while descending from defendant’s elevated railway station, slipped on a banana peel which lay on a stairway landing, an instruction was properly given which stated that in the management and operation of elevated trains and the management and maintenance of the platforms and steps and landings, etc., it was the duty of common carriers to exercise the highest degree of care, etc., consistent with the mode of conveyance adopted and its practical operation.
    2. Cabbiebs, § 460*—when doctrine of res ipsa loquitur applies in personal injury action hy passenger against elevated railroad company. The doctrine of res ipsa loquitur applied in an action for personal injuries against an elevated railroad company, where plaintiff, after traveling as a passenger and while descending to the street, slipped on a banana peel which lay on a stairway landing and sustained injuries.
    3. Cabbiebs, § 460

      —when passenger, suing for personal injuries, malees out prima facie case against elevated railroad company. A prima facie case of negligence was made out by showing the happening of the accident, in an action by a passenger against an elevated railroad company for injuries sustained by plaintiff’s slipping on a banana peel which lay on a stairway which plaintiff was descending; and the burden of rebutting the presumption of negligence rested upon the defendant.
    Appeal from the Municipal Court of Chicago; the Hon. Shebidan E. Fey, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed October 10, 1919.

      William A. Morrow and Carroll H. Jones, for appellant ; Addison L. Gardner, of counsel.
    No appearance for appellee.

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

   Mr. Justice Gridley

This is an appeal from a judgment for $100 rendered by the Municipal Court of Chicago against the defendant. Plaintiff sued for injuries occasioned by her slipping on a banana peel and falling on the stairway or stairway landing of defendant’s 35th street station in the City of Chicago, after she had been traveling as a passenger in one of defendant’s elevated trains and was in the act of descending said stairway to the street below. On the trial defendant’s counsel cross-examined plaintiff’s witnesses, but defendant did not introduce any evidence. At the close of plaintiff’s evidence defendant moved for a directed verdict in favor of defendant, which motion was denied. The jury returned a verdict assessing plaintiff’s damages at the sum of $100. Defendant’s motion to set aside the verdict and for a new trial was denied. We have not been favored with a brief and argument on behalf of plaintiff.

It is first contended by counsel for defendant that the court in the oral charge erred in instructing the jury that “in the management and operation of elevated trains and the management and maintenance of the platforms and steps and landings, leading to and from said trains for the use of passengers, it is the duty of common carriers to exercise the highest degree of care, skill and diligence for the safety of their passengers, consistent with the mode of conveyance adopted and its practical operation.” The court also instructed the jury that “proof that plaintiff fell on the stairway or stairway landing of defendant’s station, on account of the presence on said stairway or stairway landing of a banana skin, does not raise the presumption that the defendant was negligent.”

We do not think any error was committed by the giving of that portion of the oral charge complained of by counsel for defendant. It is not disputed that plaintiff was a passenger at the time she was injured. The evidence shows that when the train reached the 35th street station plaintiff and her husband alighted on the platform and started to descend the stairs to the street; that the stairs consist of two flights with a landing between; that when plaintiff reached the landing she slipped on a banana peel and fell, striking her head on the bottom step of the first flight of stairs, and received the injuries complained of. “If appellee was a passenger it was the duty of appellant to exercise the highest degree of care, skill and diligence for her safety consistent with the mode of conveyance employed, as long as she remained a passenger.” (Lake St. El. R. Co. v. Burgess, 200 Ill. 628-630.) “This relation between a passenger and a railroad company does not cease upon the arrival of a train at the place of the passenger’s destination, but the company is still bound to furnish him an opportunity to safely alight from the train. It is its duty, not only to exercise a high degree of care while the passenger is upon the train, but also to use the highest degree of care and skill reasonably practicable in providing the passenger a safe passage from the train.” (Pennsylvania Co. v. McCaffrey, 173 Ill. 169-173.) “The obligation of care on the part of a railroad company extends to all the accessories of its business, among which are stations or depots. These must be constructed and arranged with care, properly lighted when dark, and otherwise made safe and convenient for persons lawfully entering thereon for the transaction of business. But in these, as in other matters, the. company is only bound to use ordinary eare, except in favor of passengers.” (Toledo, W. & W. R. Co. v. Grush, 67 Ill. 262-264.)

It is further contended by counsel for defendant that the evidence's insufficient to hold the defendant guilty of negligence. The argument is that the evidence does not show that the banana peel had been lying on the stairway for a sufficient length of time to charge defendant with negligence in not having removed it, and that the doctrine of res ipsa loquitur does not apply to such a case as this.

Lillian Stewart, who was descending the stairway immediately following the plaintiff and her husband at the time of the accident, testified: “I did not see the banana peel until after she had fallen and I had helped to pick her up; I seen the print of the banana peeling where it had been lying after she had slid a little way; * * * I seen the print of the banana peel where she had slipped on it; * * * when I first saw it the banana peeling was very dark, and you could see the print where it had been lying.” Walter Davis, husband of plaintiff, testified: “She slipped on a banana peeling. I picked her up. When she fell her head struck the bottom step; she fell quick; I looked under her feet and I found a banana peeling under her heel; I picked it up and threw it off the platform. * * * The banana peeling was dark. * * * I did not see it until after I picked her up. * * * The print of the banana peel was on the platform. I could see the print where she slipped. ’ ’

In the case of New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill. 40, it was decided that a prima facie case of negligence was made out, sufficient to throw upon the railroad company the burden of proving that the injury was not its fault, where it was shown that a passenger in charge of cattle on a freight train was injured by being caught between two cars while he was descending a ladder to look after his cattle at a time when the train had stopped for water. In this case it is said (p. 48):

“The happening of an accident to a passenger during the course of his transportation raises a presumption that the carrier has been negligent. The burden of rebutting this presumption rests upon the carrier. Undoubtedly the law requires the plaintiff to show that the defendant has been negligent. But, where the plaintiff is a passenger, a prima facie case of negligence is made out by showing the happening of the accident. If the injury to a passenger is caused by apparatus wholly under the control of the carrier and furnished and applied by it, a presumption of negligence on its part is raised. * * * Proof that plaintiff was a passenger, that the accident happened, and that the injury was inflicted, imposes upon the carrier the duty to explain or account for the accident, and to prove that it resulted from a cause for which the carrier should not be held responsible. * * * The circumstances of exculpation are its matter of defense.”

In the case of Lapin v. Northwestern El. R. Co., 162 Ill. App. 296, a judgment for $2,000 in favor of plaintiff was affirmed by this Appellate Court where it appeared that she, a passenger, had been injured because of a fall caused by slipping upon a banana peel lying on the elevated platform at State and Lake streets, Chicago. Mr. Presiding Justice Smith said (p. 298):

“It is urged that the trial court erred in not setting aside the verdict as contrary to the evidence, for the reason that there is no evidence tending to show that either of the railroad companies had any notice of the presence of the banana peel upon the platform for a sufficient time before the accident to charge .the defendants with notice, or that by the exercise of ordinary care and diligence they could have removed the cause of the injury from the platform. We think this contention is without merit, in view of the care required by carriers of passengers under the rules in this State. It was the duty of appellants to exercise the highest degree of care, skill and diligence for the safety of plaintiff consistent with the mode of conveyance employed. (Lake Street El. R. Co. v. Burgess, 200 Ill. 630.) In New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill. 48, it was held that the happening of an accident to a passenger during the course of his transportation raises a presumption that the carrier has been neglectful, and that the burden of rebutting this presumption rests upon the carrier, especially if the injury to the passenger is caused by apparatus wholly under the control of the carrier.”

In view of the decisions in the Blumenthal and Lapin cases, supra, we think that the evidence introduced by the plaintiff was sufficient to raise the presumption of negligence on the part of the defendant, and that the burden of rebutting this presumption rested upon the defendant. As the defendant introduced no evidence, the presumption was not rebutted.

The judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Ella Landwehr, Appellee, v. William Humbracht, Appellant.
    Gen. No. 24,669.
    1. Bastards, § 4*—what is nature of proceeding. A prosecution under the Bastardy Act is a civil and not a criminal proceeding.
    2. Bastards, § 12*—when Criminal Court does not lose jurisdiction of proceeding. The Criminal Court did not lose jurisdiction of a bastardy ease because the issues were not made up at its next term to that which the bond and warrant were returned from the justice; as the action, though in form criminal, is essentially of the nature of a civil action.
    3. Bastards, § 12

      —when Criminal Court has jurisdiction of defendant in proceeding. Where a minor who had been held to the Criminal Court for bastardy, after his motion for want of jurisdiction had been overruled, was present at the trial, and his counsel cross-examined the People’s witnesses and later introduced witnesses in his own behalf, the court by such action, if not before, had jurisdiction of the person of the defendant, and he waived any irregularity in the proceedings preliminary to the trial.
    4. Bastards, § 17*—statute directing making up of issue in proceeding. The word “shall” in section 4 of the Bastardy Act (J. & A. If 706), providing that the County or Criminal Court, as the case may be, “at its next term shall cause an issue to be made up,” etc., is merely directory and not mandatory.
    5. Bastards, § 17*—when issue made up in proceeding is sufficient. In a bastardy case against a minor, where the record showed that the court directed the entry of a plea of not guilty, the issue thus made up, though not as formal as might be, was sufficient.
    6. Infants, § 36

      —necessity of appointing guardian ad litem for infant defendant in bastardy proceeding. The rule that guardians ad litem are not appointed for minors in criminal cases, applied in a bastardy case; but the participation of a minor in his trial without asking for such appointment would be a waiver in any event.
    Appeal from the Criminal Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed October 10, 1919.
    Edwin D. Lawlor and William J. King, for appellant.
    Maclay Hoyne and Edward E. Wilson, 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, an-?. Cumulative Quarterly, same topic and section number.

   Mr. Justice G-ridley

delivered the opinion of the court.

On March 20,1917, Ella Landwehr filed a complaint under the provisions of the Bastardy Act with a justice of the peace of Cook county, in which she stated under oath that “she is an unmarried woman and that she has been delivered of a child which by law is deemed a bastard, and that William Humbracht of Cook county is the father of said child.” A warrant was issued and the defendant was arrested. After the examination before a justice of the peace in April, 1917, at which time witnesses for both parties testified, the defendant was bound over to appear at the next term of the Criminal Court of Cook county to answer the charge. On April 30, 1917, the warrant and bond were filed in said Criminal Court. No further proceedings appear to have been had in the cause in said court until March 9, 1918, when the defendant entered his special appearance and moved for a dismissal of the case for want of jurisdiction. On March 16, 1918, after a hearing, the court denied the motion. On July 22,1918, the case was called for trial and the defendant renewed his said motion, which was again denied. The court thereupon ordered that defendant enter a plea of not guilty, which was done, and thereupon a jury was called and a full hearing was had on the merits, during which several witnesses presented by the defendant and the defendant himself testified. On July 24 the jury returned a verdict finding the defendant “guilty in manner and form as charged in the complaint.” Defendant’s motions for a new trial and in arrest of judgment were subsequently overruled, and on August 3, 1918, the court entered judgment on the verdict, in compliance with the provisions of section 8 of said Bastardy Act (J. & A. U 710) and defendant appealed to this court.

Section 3 of the Bastardy Act (J. & A. f 705) provides that, if on the preliminary examination the justice of the peace shall be of the opinion that sufficient cause appears, the accused shall be bound over “to appear at the next County Court to be holden in such county, to answer such charge, to which court said warrant and bond shall be returned,” except that in Cook county the same shall be returned to the Criminal Court. Section 4 of said Act (J. & A. ft 706) in part provides: ‘ ‘ The county or the said criminal court of such county, at its next term, shall cause an issue to be made up, whether the person charged, as aforesaid, is the real father of the child or not, which issue shall be tried by a jury.”

It is first contended by counsel for defendant that the judgment should be reversed because the trial court was without jurisdiction to hear the cause or enter the judgment, for the reason that the provisions of the statute were not complied with in that no issue was made up at the “next” term of the court after said warrant and bond had been returned to the Criminal Court, but on the contrary ten terms of said court intervened without the issue having been made up or any orders of continuance having been entered or any proceedings whatever having been had. We are unable to agree with the contention. It is well settled by the decisions in this State “that a prosecution under the Bastardy Act is a civil and not a criminal proceeding; that though in form criminal, it is essentially of the nature of a civil action, the object being, not the imposition of a penalty for an immoral act, but merely to compel the putative father to contribute to the support of his illegitimate child.” (Rawlings v. People, 102 Ill. 475-478; McCoy v. People, 71 Ill. 111-114; People v. Stevens, 19 Ill. App. 405-408; Rose v. People, 81 Ill. App. 128-130.) In the Stevens case, supra, it is decided that bastardy cases “may be tried indifferently either at the law or at the probate term of the County Court.” In the Rose case, supra, it appears that at the January term, 1898, of the County Court of Washington county, the defendant in a bastardy case (who at a preliminary hearing before a justice of the peace in September, 1897, had been bound over to appear at said County Court) moved the court to dismiss the proceedings for want of jurisdiction because the October, November and December terms had intervened between the time of said preliminary hearing and said January term, which motion' was overruled; that thereupon, upon affidavit and motion of defendant, the cause was continued to the July term, 1898, at which term the defendant again moved for a dismissal of the proceedings upon the ground previously assigned, and upon the further ground that since the January term, 1898, the February, March, April, May and June terms had intervened without orders in the cause; that the court overruled the motion and defendant excepted; and that the cause proceeded to trial, resulting in a verdict finding the defendant guilty, upon which verdict the court entered judgment. It further appears that the October, November, December, February, March, April, May and June terms mentioned were “probate” terms and the January and July terms were “law” terms of said County Court; and that the justice of the peace had bound defendant over to the January term, 1898 which was the next ‘ ‘ law ’ ’ term, instead of to the preceding October “probate” term, which was in due course the “next” term of said court. In affirming the judgment the Appellate Court said: “The County Court has jurisdiction of that class of cases, of the subject-matter, at all terms. * * * By appellant’s appearance in court, and the putting in of his defense to the merits of the case, the court had jurisdiction of him as a party to the suit. A prosecution under the Bastardy Act is a civil proceeding, and in such case a defendant may waive any irregularity in process or preliminary proceedings by the same acts and to the same extent as in other civil cases. There is no issue, now, in this case involving the validity of the recognizance.” In the present case the defendant was bound over by the justice of the peace during the month of April, 1917, to appear at the next term of the Criminal Court of Cook county, which was the May term, 1917, commencing on the first Monday of that month. Prior to that day the warrant and bond of defendant were, on April 30, 1917, filed in said Criminal Court. These two papers were all that were required to be returned by the justice to the Criminal Court. (Curran v. People, 35 Ill. App. 275-276; Baird v. People, 66 Ill. App. 671-672.) After the motion of the defendant for a dismissal of the cause for want of jurisdiction had been made and overruled, and when the cause was finally called for trial before a jury, the defendant was present, and his counsel cross-examined the People’s witnesses and later introduced witnesses on defendant’s behalf. By such action the court then, if not before, had jurisdiction of the person of the defendant, and the defendant waived any irregularity, if any there was, in the proceedings preliminary to the trial. Furthermore, we think that the word “shall” in section 4 of the statute (wherein it is provided that the County Court or Criminal Court, as the case may be, “at its next term, shall cause an issue to be made up,” etc.) should be construed as merely directory and not mandatory. “The word shall may be held to be merely directory when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to any individual, by giving it that construction.” (Wheeler v. City of Chicago, 24 Ill. 105-107; Canal Commissioners v. Sanitary Dist. of Chicago, 184 Ill. 597-604.) In the same section of the statute it is provided that the issue, when made up, “shall be tried by a jury,” yet it has been decided by this Appellate Court that the defendant may waive the trial by jury, the proceeding being a civil one. (Kanorowski v. People, 113 Ill. App. 468-473.)

It is next contended that the trial court erred in entering a plea of not guilty (a) because such plea does not form the proper issue, and (b) because the defendant was at the time a minor and no guardian ad litem had been appointed. The record shows that on July 22, 1918, prior to the swearing of the jury, the court “of its own motion doth order that the defendant enter a plea of not guilty in this cause, which is accordingly done.” It has been decided in People v. Woodside, 72 Ill. 407-410, that in a bastardy case, where the record shows a plea of not guilty, the issue thus made up, though not as formal as it might be, is sufficient. And, in our opinion, it was not necessary for the court to have appointed a guardian ad litem for the minor defendant. In Holcomb v. People, 79 Ill. 409-416, it is said that in a bastardy case, “so far as the arrest and trial are concerned, the form is criminal, but the proceeding is, in effect, civil; that the mother may compromise the prosecution, but, failing to do so, the means of coercing a compliance with the order of the court, or having execution of the judgment, is essentially criminal in form and effect.” In Cutter v. People, 184 Ill. 395-396, it is said: “Courts will always be careful to protect the substantial rights of infants in criminal as well as civil cases, but guardians ad litem are not appointed for such defendants in criminal cases, and the procedure is the same whether the defendants are infants or adults.” Futhermore, it does not appear that defendant, before the plea of not guilty was entered, asked for the appointment of a guardian ad litem. On the contrary it appears that he participated in the trial upon the merits. He must be held to have waived the point. (People v. McDonald, 178 Ill. App. 159-163; Bartley v. People, 156 Ill. 234-240.)

It is further contended that the judgment should be reversed (1) because the trial court erred in admitting evidence of certain statements made by the defendant during the preliminary hearing before the justice of the peace; (2) because the court erred in excluding certain testimony offered by the defendant; (3) because the verdict is manifestly against the weight of the evidence; and (4) because the complaint is insufficient to sustain the judgment. No useful purpose will be subserved in a discussion of these points. Suffice it to say that we have examined them all and are of the opinion that they are without substantial merit.

Finding no reversible error in the record the judgment is affirmed.

Affirmed.