author: Me. Justice Thompson

text:
    In the Matter of the Estate of Joseph Hutchings, deceased. John G. Petteys, Public Administrator, Appellant, v. John J. Hutchings, Administrator, Appellee.
    Gen. No. 5155.
    1. Administration or estates—section 18 referring to right of administration construed. The word “shall” as applied to the granting of administration to the public administrator should be construed as “may.”
    2. Administration of estates—when public administrator not entitled to administration. If a will is set aside more than sixty days after the death of the testator, the public administrator is not entitled to the administration but such right reposes in the next of kin as provided by the statute.
    Petition for letters of administration. Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed October 19, 1909.
    Rehearing denied April 29, 1910.
    Statement by the Court. Joseph Hutchings died-on the 28th day of June, 1907, at his residence in Grundy county, seized of 320 acres of land and possessed of personal estate amounting to about $7,000, leaving what purported to be a last will in which John J. Hutchings, his son, was named as executor. The will was filed in the office of the county clerk of Grundy county. The executor named in the will, on July 10, 1907, filed his petition for letters testamentary. The will was duly proved and the County Court made an order admitting the will to probate and appointing John J. Hutchings executor of the will; letters testamentary were issued to the executor on August 7, 1907. The executor filed an inventory which was approved and on September 28, 1908, he filed an account current which was also approved, but the account stated that a contest on the will was pending in the Circuit Court of that county. On November 21, 1908, a decree was entered in the suit to contest the will in the Circuit Court of Grundy county setting aside the will on the ground of mental incapacity of the testator. On November 30, 1908, John G. Petteys, public administrator of Grundy county, filed a motion in the County Court for a rule on John J. Hutchings, as such executor, to show cause why he should not be removed and his letters revoked and with his motion he, as public administrator, filed his petition for letters of administration de bonis non on said estate. On the same day Bridget Hutchings, widow of Joseph Hutchings, filed in the County Court her relinquishment of her right to administer on the estate and requested the appointment of her son, John J. Hutchings as administrator, and John J. Hutchings filed his petition for letters of administration in regular form. Afterwards on December 17, by leave of court, the petition of John J. Hutchings was amended by changing it to a petition for letters of administration de bonis non. Upon a hearing on both petitions for letters and of the motion for a fule, etc., an order was entered overruling the motion for a rule to show cause, denying the petition of the public administrator and ordering that letters issue to John J. Hutchings upon his filing a bond in the sum of $14,000, etc. John G. Petteys as public administrator appealed to the Circuit Court from the ruling of the court on the motion and on the petitions. The Circuit Court on the trial of the appeal entered an order revoking the letters testamentary, dismissed the petition of John G. Petteys, public administrator, and ordered that letters of administration de bonis non be issued to John J. Hutchings on his filing bond, etc., and ordered the costs to be paid in due course of administration. John G. Petteys as public administrator appeals to this court from the order of the Circuit Court. *-
    John G. Petteys, appellant, pro se.

    Cornelius Beabdon, for appellee.
   Me. Justice Thompson

delivered the opinion of the court.

The only question involved in this appeal is as to the rights of the respective parties, John G-. Petteys, as public administrator of Grundy county, or John J. Hutchings, on the request of the widow and his own petition, to administer on the estate of the deceased.

Section 18 of the Administration Act gives preference in administering on estates to certain relatives in a certain fixed order, and after the relatives to the public administrator or any creditor who shall apply for the same. The Act provides that: “Preference and the fight to nominate under this Act must be exercised within sixty days from the death of the intestate, at the expiration of which time administration shall be granted to the public administrator.” Over a year had elapsed before the application was made to have the son appointed administrator, and the public administrator contends his right to administer had thereby become absolute. If the contention of appellant be sustained, the result would be that in every case where a will is set aside on a contest in equity or otherwise, the public administrator or a creditor would thereafter be the only person who might be appointed administrators, and the members of the family would be excluded. Section 48 provides that whenever administration is granted to the public administrator and it shall afterwards appear there is a widow or next of kin, it shall be the duty of the court to revoke the letters to the public administrator and grant letters to the widow, next of kin or a creditor as is entitled thereto, provided application is made by such person within six months after letters were granted to the public administrator. Section 38 makes provision where the letters of executors are revoked for the granting of “administration with the will annexed or de bonis non, to the surviving husband or wife or next of kin.” Section 18 also provides that when the estate is solvent and without minor heirs and it is desired by the parties in interest to settle the estate without administration this law shall not apply. From the reading of the entire act we hold that the word “shall” in section 18 should be construed as “may” when a controversy arises between the heirs of the estate and the public administrator, and that the legislature never contemplated that the public administrator, in cases where wills are set aside on a contest more than sixty days after the death of the testator, should have an absolute right to administer on the estate as against the widow or heirs who desire to administer and are entitled to the • estate. When the will was set aside the parties had the right to administer on the estate in the oirder named by the statute, and there was no error in the ruling of the Circuit Court.

The costs of this appeal in this court should be taxed to John Gr. Petteys in his individual capacity. The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Livingston National Bank, Appellee, v. M. L. Miller et al., (M. L. Miller, Appellant).
    Gen. No. 5176.
    1. Evidence—when cross-examination improper. Cross-examination which tends to elicit evidence in support of a defense not relied upon by the pleadings is improper.
    2. Gambling—what evidence sufficient to sustain defense. In an action to recover upon a note a defense that the consideration was of a gambling nature is sufficiently sustained by a clear preponderance of the evidence.
    3. Gambling—what evidence competent to show nature of transaction. Evidence of transactions between the party charged with conducting a gambling business and other parties is competent as tending to show the business in which such party was engaged and as hearing upon the character of the transaction in issue.
    4. Gambling—what does not preclude defense. A party cannot be estopped from setting up the defense that a note in suit was given in settlement of a gambling transaction.
    Assumpsit. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding. Heard in this court at the April term, 1909.
    Reversed.
    Opinion filed March 11, 1910.
    Thomas Kennedy, John F. Bosworth and McL> duee & Thompson, for appellant.
    A. C. Norton, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in assumpsit on a promissory note dated March 23, 1905, for $500 and interest,- brought by the Livingston County National Bank, as assignee before maturity, against M. L. Miller as maker, and H. B. McGregor as indorser. The defendant Miller filed pleas alleging in various forms that the consideration for the note was money lost in illegal speculation and gambling on the market price of grain, options to buy and sell grain at a future time, puis and calls, margins for differences, etc. There was a traverse of the special pleas. McGregor pleaded only the general issue. On the trial, a verdict was returned for the plaintiff for $608 on which judgment was rendered and the defendant Miller appeals.

Numerous errors are assigned by appellant. This case is almost identical with the ease of the First National Bank of El Paso v. Miller, 139 Ill. App. 608; 235 Ill. 135. The proof shows that McGregor, who resided in Pontiac, came to El Paso and opened an office in two upper rooms in a building known as the Hendron block. In one of the rooms he had some chairs, benches, a telephone, a telegraph instrument with an operator and a blackboard on which was placed market quotations of stocks and grain. He had no elevator or scales and no way of receiving or delivering grain such as a grain dealer usually has in a vicinity where grain is bought and sold.

There was no plea on file for McGregor except the general issue. He was permitted over the objections of appellant to cross-examine witnesses on behalf of appellant who testified solely concerning the nature of the transactions. Witnesses of whom the appellee waived the cross-examination, were cross-examined by McGregor in the interest of appellee with the purpose of attempting to show that the transactions were legitimate and lawful. Since McGregor had filed no plea presenting such a defense this cross-examination was improper and reversible error.

The 7th instruction given on behalf of appellee told the jury that “the law presumes that contract to be fair and honest, and before you are justified in setting aside that presumption you must be convinced by a greater weight or preponderance of the evidence that both parties understood and intended there should be no delivery of the grain * * *” Gambling in grain, while a criminal offense, is only a misdemeanor. Criminal Code, sec. 129. It was not necessary that the jury should be convinced that the transaction was an illegal one before they could find for the defendant; a clear preponderance of the evidence is sufficient to authorize the jury to find for the defendant.

The appellant offered proof of transactions between himself and McGregor and between McGregor and other parties tending to show that McGregor was simply running a bucket shop, and engaged in an option business in which settlements were made by differences without any intention on the part of the parties to the transactions to deliver any grain or stocks. During the year that McGregor was in business at El Paso prior to the giving of the note sued on but one transaction is shown where grain was actually sold or bought by him. The court refused to permit evidence of transactions between McGregor and other parties and of some of the transactions between Miller and McGregor to be heard. This evidence was proper for the purpose of showing the nature of the business in which McGregor was engaged. First Nat. Bank of El Paso v. Miller, 235 Ill. 135; and 139 Ill. App. 608; Weare Com. Co. v. People, 209 Ill. 528; Pratt & Co. v. Ashmore, 224 Ill. 587.

There was also proof admitted showing admissions of Miller after the giving of the note that the note was given for the purchase of grain. This could only be admitted for one purpose; that of impeaching Miller. He could not be estopped by any admission made by him from setting up the defense that the note was given in a gambling transaction. Kyser v. Miller, 144 Ill. App. 316, and cases therein cited. The evidence in this case is substantially the same as that in the First Nat. Bank of El Paso v. Miller, supra, and no useful object would be subserved by restating the evidence in this case.

As was said by the court in the First National Bank of El Paso case, “from all the evidence, both that offered by appellant as well as that of appellee in connection with the facts and transactions surrounding the transactions, and the extraordinary care taken to impress upon the business the appearance of legitimate transactions, it clearly appears that the deals ■ between Miller and McGregor were all speculations on the market price of grain without any intention on the part of either party to deliver or receive any commodity or to pay anything therefor except the margins.”

We deem it unnecessary to extend this opinion by a lengthy review of the evidence, which is similar to that reviewed in the former case. This note is one of a series given between the parties, and it further appears from the evidence in this case that there was an agreement between the holders of the notes to stand together and to assist each other in their collections. Inasmuch as there can be no recovery under the evidence against the appellant, it would be useless to remand the case. The judgment is therefore reversed.

Reversed.


text:
    Christopher Schulk, Appellee, v. Joliet & Southern Traction Company et al., Appellants.
    Gen. No. 5179.
    1. Negligence—when doctrine res ipsa loquitur applies. Held, that the doctrine ■res ipsa loquitur applies where it was shown that the accident resulted from the negligent construction and maintenance of a derailing apparatus.
    2. Master and servant—Hoftew doctrine of assumed risk does not apply. A servant assumes such risks as are matters of common observation, but when the danger to be avoided requires a knowledge of scientific facts, an ordinary servant is not presumed to have knowledge of them and the' rule of assumed risk has no application.
    3. Master and servant—when doctrine of assumed rislc does not apply. A servant does not assume the risk of a dangerous condition of which he has no knowledge and of which in the exercise of ordinary care he could not know.
    4. Master and servant—when negligence of fellow-servant mil not preclude recovery. Where the negligence of the master is combined with the negligence of a fellow-servant in producing an injury and neither is the sufficient cause alone, the master is liable.
    5. Instructions—when failure to define fellow-servant rule not ground for reversal. Held, that under the instructions given and in view of the failure of the defendant to ask an instruction upon the fellow-servant rule, it was not error for the court to neglect to give such an instruction.
    6. Instructions—when refusal to instruct jury to disregard particular counts not ground for reversal. The refusal of the court to instruct the jury to disregard certain counts in the declaration is not reversible error when there is one or more good counts to sustain the judgment to which the evidence is applicable.

      7. Instructions—when cannot he complained of. A party can only assign error with respect to the action of the court in giving or refusing instructions where such action injuriously affects his rights. In other words, instructions given on behalf of a co-defendant are not ordinarily a proper subject for assignments of error by the other defendant.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooker, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    John M. Raymond, John K. Newhall and Garnsey, Wood & Lennon, for appellant.
    John W. D ’Ahoy, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in case commenced in the Circuit Court of Will county by Christopher Schulk against the Joliet & Southern Traction Company and the Elgin, Joliet & Eastern Railway Company, to recover • for injuries received by plaintiff in a collision between a locomotive of the Elgin, Joliet & Eastern Railway Company, upon which plaintiff was employed as a fireman at the time of the accident, and an interurban car of the Joliet & Southern Traction Company. Plaintiff recovered a verdict for $5,500 against both defendants. The court required a remittitur of $1,500 to be entered before it overruled the motion for a new trial and rendered judgment against the defendants for $4,000. Both defendants appeal and file separate assignments of error and briefs.

The declaration contains five counts. The first count avers that the Joliet & Southern Traction Company (hereinafter called the traction company) was engaged in the management of a street railway system, with cars propelled by electric power, upon a certain public highway in the township of Lockport, between the city of Joliet and the village of Plainfield, and that the Elgin, Joliet & Eastern Railway (hereinafter called the railway company) was possessed of a railroad which extended through the township of Lock-port intersecting the tracks of the traction company, and avers that it was the duty of the defendants to manage and operate their respective cars, trains and engines with all reasonable care so as not to injure the plaintiff, then an employe of the railway company working as a fireman on one of its engines; that it was the duty of the traction company to operate and manage its cars with reasonable care so as to prevent a collision with the engines and cars operated on the tracks of the railway company, and it was the duty of the railway company to operate its locomotives so as not to collide with the cars on the right of way of the Joliet & Southern Traction Company, and avers that the defendants notwithstanding their duties negligently and wrongfully, when plaintiff was working as a fireman on one of the locomotive engines of the railway company, in the exercise of reasonable car,e for his own safety, permitted a car on the tracks of the traction company to collide with, or be struck by a locomotive engine on the tracks of the railway company, by reason whereof plaintiff was permanently injured, and avers that the injuries did not result from an assumed risk and were not caused through the negligence of a fellow-servant.

The second count after averring the intersection of the railway and street car systems of the defendants, avers that the defendants provided a certain appliance on the tracks of the traction company for the purpose of derailing cars running on the tracks of the traction company at a distance of, to wit,- 200 feet from the tracks of the railway company and that it was the duty of the defendants in laying out, constructing and operating said derailing tracks for the purpose of derailing cars on the right of way of the' traction company, to use reasonable care to make said tracks of sufficient length or distance from said inter section to prevent cars on the traction company’s tracks from stopping on the tracks of the railway company, when derailed, whereby cars thereon would not come in contact with engines in motion on the tracks of the railway company; yet the defendants carelessly and negligently constructed and maintained said derailing system by making the same of insufficient length from the tracks of the railway company and of improper grade to prevent the cars of the traction company when derailed from running upon and over the tracks of the railway company, by reason whereof when plaintiff, an employe of the railway company, was working as fireman on one of its locomotives, and a car upon the tracks of the traction company was running at a high rate of speed, and when an engine, on the right of way of the railway company on which plaintiff was working in the exercise of due care, was proceeding in a northerly direction, a car on the tracks of the traction company was derailed and ran into and upon the intersection of the railway company’s tracks, whereby said car was there struck by said engine on the track of the railway company, whereby plaintiff in the exercise of reasonable care was permanently injured, etc., and avers the injury was not the result of an assumed risk nor caused through the negligence of a fellow-servant.

The third count is similar to the second but avers a system of signals which it was the duty of the defendants to observe and that the defendants neglected to operate said system with reasonable care.

The fourth count avers that it was the duty of the traction company and the railway company to use reasonable care to provide and operate a reasonably safe and efficient system of signals but that the defendants negligently failed to maintain and operate such a system.

The fifth avers negligence in the speed at which the engine and street car approached the intersection.

The evidence shows that the Plainfield road runs from Joliet to Plainfield in a northwesterly direction. On the northeast side of this road is located the track of the traction company. The railway company has a branch road which runs around the outside of the city limits of the city of Joliet to reach certain mills and crosses the tracks of the traction company about three miles from Joliet where the railway company’s tracks run in a southwesterly and northeasterly direction. The tracks of the railway company from the southwest are down grade to the tracks of the traction company and the tracks of the traction company are down grade for a distance of about 1,700 feet from the southeast to within about 400 feet of the intersection with the railway company. Both tracks descend towards that point and rise after they leave it. On the day of the accident, about seven o’clock in the evening of June 4, 1908, appellee was a fireman making his third trip over this railroad on a freight engine with a train of cars of the railway company going northeast. The traction company’s line was built first. When the railroad was built the officials of the railway company and the traction company consulted with reference to the intersection and the railway company, with the consent and approval of the traction company, erected semaphores and a derailing apparatus on both lines. At or near the intersection there were four levers which could only be thrown in a certain order. The first operated a semaphore danger signal on the tracks of the traction company 1,700 feet from the crossing near a place called the Five Corners; the second placed a signal against the traction company 300 feet from the crossing and opened a derail on the rails of the traction company 100 feet from the crossing, which would throw the car off the track and on the ground astride of one of the rails; the third closed a derailing apparatus on the tracks of the railway company 300 feet from the crossing; the fourth dropped a danger signal which stood against the railroad some distance further from the crossing. As the traction cars ran often, and the railway company’s track was used but seldom and was built last, it was arranged between the two companies that these signals should regularly remain at safety to the traction company and at danger to the railway company, and when the railway company wished to cross the traction company’s tracks the men of the railway company should change the signals. On the day of the injury a train composed of thirty-seven cars and an engine of the railway company on which appellee was the fireman, stopped about a mile southwest from the crossing. The engine was detached from the train and ran forward to the derailing appliance 300 feet from the crossing. From there a brakeman named Hoot went forward to the signal apparatus at the intersection and the engine returned to the train. When the engine reached the train, the brakeman turned the signals and derailing apparatus against the traction cars and then released the derail and semaphores which stood against the train on the railway company’s track. The railway train then started towards the crossing; a traction car approached the crossing from the southeast running at a rate of from 30 to 35 miles per hour down grade. The traction company’s car ran off the track at the derail and ran over the intermediate 100 feet between the derail and the crossing and onto the track of the railway, but before it got over it was struck by the railway train and carried some 200 feet into an adjoining field where the engine left the track and turned over, seriously injuring appellee. The traction company claims that the accident resulted from the negligence of the railway company, and the railway company insists that the accident resulted from the negligence of the traction company or of a fellow-servant of appellee. The motorman of the traction company car testified that the distant semaphore was not set against him when he passed it; that the near semaphore is fifty feet from the crossing; that when he got within fifty feet of the derail he saw it was set against him and looked to the left and saw the train and tried to stop his car by reversing the power but he was unable to stop the car and it ran off the derail onto the ground and over to and upon the track of the railway company; that from the time he passed the distant semaphore he did not look to the left in the direction the train came from; that there was nothing within 1,000 feet of the railroad to prevent him from seeing the train coming from the south within half a mile of the crossing if he had looked but he did not look and he did not see any person at the crossing. He also testified that the car was running at ten or twelve miles an hour and at that rate it would require 600 feet to bring the car to a stop using all the emergency appliances at his command.

Passengers on the traction car looking out of the windows testified that they saw the freight train approaching the crossing for about a quarter of a mile before it reached the crossing; and that the traction car was going. from twenty to twenty-five miles an hour. One passenger testified that he saw the train approaching the crossing from the left from the time the traction car passed the Five Corners. Hoot, the brakeman, testified that before throwing the semaphore he looked both ways, saw the danger signal go up when he threw the levers, and that there was no street car in sight when he threw the signals which gave the right of way to the railroad company; that when he first saw the car it was getting up to the top of the hill at the Five Corners and that it came very rapidly, thirty or forty miles an hour; that the distant danger signal was up when the traction car passed it; that after he threw the signals he went across the road and it was five or six minutes before the accident; that he heard the traction company’s car approaching and gave no further attention until it got within about 200 feet of the crossing when he saw it was not going to stop and began to make motions with his arms to try to stop the car.

The object of the derailing system is to throw the car off the track so that it would not run over the crossing in front of a train on a railway track; the derail on the railway company’s track was always set at danger and the train could not cross the traction company’s track without first setting the signals at danger on the traction company’s track and setting the derail so that it would derail the traction car; and the derail on the railway company’s track could not be set so that a train could go across the traction company’s track until the danger signals had all been set against the traction company and the railroad semaphore was set at safety for the railroad train to pass; such is shown to be the construction of the derailing system. The object of the derailing is to protect the trains or cars on the system which is set at safety from being run into by equipment on the tracks which is set at danger. The derail is set to throw the equipment off the track and prevent it from running on the crossing in front of equipment on the tracks on which the signals are set at safety if the employes on the tracks set at danger disregard or fail to observe the danger signals.

The derail on the traction company’s tracks it is apparent was not placed far enough from the crossing to be of any service, for the reason that the car when derailed still ran upon the crossing. It is contended on behalf of defendants that there is no proof that the derail was negligently constructed or maintained, —that that was a matter requiring proof by experts. We think the doctrine of res ipsa loquitur applies. The fact that the derail on the traction company’s track did not serve the purpose for which it was constructed by derailing the car a sufficient distance away so that it could not run upon the crossing, is more effective proof than any theoretical proof that could have been made by appellee. This derailing apparatus was constructed by the railway company with the consent and approval of the traction company. Defendants knew or ought to have known how far a traction car would run after being derailed before it would stop, and should have placed the .derail so that cars would not have run on the crossing after being derailed. It is apparent that there was negligence in its being constructed too near the crossing, and both parties are liable for any damage resulting from its negligent construction or maintenance. The negligence alleged in the second count of the declaration was proved.

It is also contended by appellant railway company that the injury resulted from an assumed risk and that the judgment cannot be sustained for that reason. An employe assumes such risks as are matters of common observation, but when the danger to be avoided requires a knowledge of scientific facts an ordinary employe is not presumed to have knowledge of them and the rule of assumed risk has no application. Swift & Co. v. Fue, 66 Ill. App. 651; Wood on Master and Servant, 714; 20 Am. & Eng. Ency. of L. 121 (2nd Ed.). The appellee was making his third trip over this branch road when the accident * happened. He knew of the derail but did not know until after the accident how far it was from the crossing nor that it was so close as to be dangerous. The argument of appellants, that theoretical proof by experts was necessary to show that the derail was too close to the crossing, is a refutation of their contention that appellee assumed the risk of its location and construction. There is no proof in the record that he was an expert in such matters. The appellee cannot be said to have assumed the risk of a dangerous. condition of which he was ignorant.

Approaching the crossing the fireman was on the left side of the engine, the side away from that on which the traction car approached. It was the duty of both the railway company and the traction company to have stopped their respective cars or trains to avoid injury to. employes and passengers. The safety appliances of the derail and semaphore were set at safety for the train and it had the right of way. The brakeman who set the semaphore supposed the car would stop before reaching the derail. Whether the engineer on the side of the engine on which the car approached should have seen the car and stopped his train, although the appliances were set giving him the right of way at the crossing, was a question of fact. It is the rule that if a servant has been injured through the negligence of the master the fact that the negligence of a fellow-servant has also contributed to the injury will not relieve the master from liability. The doctrine that an action will lie by an employe against his master for an injury sustained through the negligence of a fellow-servant applies only to cases where the injuries complained of occur without the fault of the master. Where the negligence of the master is combined with the negligence of a fellow-servant in producing an injury, and neither is the efficient cause alone, the master is liable. Pullman Palace Car Co. v. Laack, 143 Ill. 242; C. & A. R. R. Co. v. House, 172 Ill. 606; Armour v. Golkowska, 202 Ill. 147; Missouri Malleable Iron Co. v. Dillon, 206 Ill. 155; Kennedy v. Swift & Co., 234 Ill. 611.

In view of all the evidence in the case, the jury could reasonably find that the distant' semaphore was set against the traction car before it reached that point and that it was disregarded or not seen by the motorman, and that both defendants were guilty of negligence in constructing and operating the derailing apparatus on the street car line too close to the railroad track to answer the purpose for which it was designed.

It is insisted on behalf of appellants that there was error in the court not having given to the jury in some instruction a definition of fellow-servant. The defendants did not ask for any instruction on that question ; moreover the third instruction given on behalf of the railway company informed the jury that if the employes of the railway crew all or any one of them were negligent, and that such negligence, if any, was the only negligence of the railway company, then they could not find the railway company guilty. An instruction was also given telling the jury that if the engineer was negligent and if the accident was caused thereby, the railway company must be found not guilty. The same kind of an instruction was given with reference to the switchman. A similar one was given concerning any of the train crew. All employes of the “railway company who possibly could be fellow-servants of the appellee were included in the instructions which were given at the request of appellant railway company and particularly applied to each of its employes; the jury were instructed that if the accident was caused by the negligence of any of them there could be no recovery. ' The instructions were much stronger in behalf of the railway company than any instructions that could be drawn defining fellow-servants.

It is also insisted that the court erred in refusing ■ to give instructions directing a verdict for the defendants upon each of the five counts. The refusal of the court to instruct the jury to disregard certain counts in the declaration is not reversible error when there is one or more good counts to sustain the judgment to which the evidence is applicable. Olson v. Kelly Coal Co., 236 Ill. 502; Swift & Co. v. Rutkowski, 182 Ill. 18; Eldorado Coal and Coke Co. v. Swan, 227 Ill. 586; I. C. R. R. Co. v. Foulks, 191 Ill. 57; Klofski v. Railroad Supply Co., 235 Ill. 146.

Some of the instructions given on behalf of the traction company it is claimed by the railway company were more favorable to the traction company than they were entitled to. We fail to see where the railway company can assign error against the appellee because of any error that may have been favorable to a co-defendant when the defendant assigning error is not affected thereby. A party may only assign error which injuriously affects his rights. Schwartz v. Ritter, 186 Ill. 209.

The negligence alleged in the construction and operation of the derailing system is averred against both defendants and is sustained by the proof. When there is concurrent negligence alleged and proved a verdict may be sustained against both defendants. In actions of tort a verdict and judgment against any one of the defendants which the proof justifies will be sustained. Chicago City Ry. Co. v. Smith, 226 Ill. 178.

It is also insisted the verdict is excessive. In view of the wages the appellee was earning, his age, thirty years, and the serious "nature of the injuries he received which will probably prevent him from ever hereafter performing work of the kind he had been engaged in for five years, we cannot say the judgment is excessive. Finding no error in the case the judgment is affirmed.

Affirmed.


text:
    Henry C. Mills et al., Appellees, v. School Directors of Consolidated District No. 532, Appellants.
    Gen. No. 5192.

      Schools—power of directors to make contracts to haul children to school. School directors have no power to hire wagons and make contracts for the hauling of children to school.
    Bill for injunction. Appeal from the Circuit Court of Putnam county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.

      Geobge W. Hunt and Winslow Evans, for appellants.
    Babnes & Magoon, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

Henry C. Mills and others, who are the owners of real estate and taxpayers in-Consolidated School District No. 532 in Putnam county, filed a bill in chancery on the 5th of October, 1907, against the School Directors of Consolidated District No. 532, and Victor Keyes, John Wilson, Willis B. Mills, clerk of the board of directors, and Walter Griffith, personally and as treasurer of said district, and Mary Keyes Oliver, M. Mills and C. B. Moore Lumber Company, a corporation, praying an injunction restraining the defendants from misappropriating funds of said district. The bill alleges that the defendants were conspiring together to squander the public money of the school district and using the public school money for buying wagons, and hiring drivers and teams for hauling children to and from the schoolhouse. The bill was amended at the October term, 1908.

Consolidated District No. 532 is composed of three other districts, formerly known as the Center District, which was the most eastern one, the Clear Creek District, which was the middle one, and the Kays District, which was the western one. These three districts wer-e consolidated into one district and a new schoolhouse built costing $15,000. The Consolidated District is about six miles in length east and west and between two and three miles in width, north and south, so that some of the children resided three and a half miles from the schoolhouse.

The evidence shows that the directors had paid out of the school funds $342 for the purchase of wagons and made a contract with Mary Kays to run a wagon on the west route at $40 per month and during the school year of 1907 had paid her $240 out of the funds of the district and had paid T. J. Smith $199 for running a wagon over the east route for hauling the children. It is also shown that this money was paid from the building fund and not from the educational fund. The original contracts with Mary Kays and T. J. Smith for hauling the children were verbal. After the filing of the original bill and before the amended bill the contract was reduced to writing. There are a number of matters alleged in the bill concerning the old schoolhouse which are not material to the question presented in this court. The defendants filed an answer to the bill stating that there had been a vote of the district authorizing the purchase of wagons and the hiring of parties to drive the children to and from school and that the compensation paid for such services was reasonable and denying that they were wrongfully expending the money of the district. The court on a hearing on the bill, answer, replication and report of the master found, that the acts of the directors in the expenditure of money for wagons and hiring persons to run the wagons, to haul the children to and from their residences to the schoolhouse, were unlawful and illegal and enjoined the district from paying any school orders issued in payment for wagons, or compensation for running such wagons, and from issuing or paying any school orders for running the wagons or other conveyances to haul children to and from said schoolhouse, out of any funds of said district. The defendants appeal to this court.

No question is presented concerning the right of a court of chancery to enjoin the use or appropriation of the funds of the district for an illegal purpose. The only question presented for our consideration is whether the school directors possess or have an inherent right or authority under the statute to use school funds for hauling children living remote from the school to and from school. There is a charge in the bill and some proof presented tending to show that favoritism, had been shown in hauling some children and in refusing to haul others more remote from the schoolhouse, but in the view we take of the case it is unnecessary to consider that question. Appellants insist that under paragraph 5, of section 26 of Article V of chapter 122 of the Revised Statutes of Illinois, they are given authority to expend money for the purposes in controversy in this case. Said section 26 defines the duties of the board of directors: “It shall be the duty of the directors of each district, * * * to establish and keep in. operation * * * a sufficient number of schools for the accommodation of all children in the district * * * and shall secure for all such children the right and opportunity to an equal education in such free schools.” Section 26 of Article V contains fifteen paragraphs prescribing the duties of the board of directors, the third of which is “to provide for the necessary revenue to maintain free schools in their district in the manner provided for in Article VIII of this act.” Section 1 of Article VIII of the school law concerning revenue provides, “For the purpose of establishing and supporting free schools for not less than six nor more than nine months in each year, and defraying all the expenses of the same of every description, for the purpose of repairing and improving schoolhouses, of procuring furniture, fuel, libraries and apparatus, and for all other necessary incidental expenses in each district, village or city, anything in any special charter to the contrary notwithstanding, the directors of such district and the authorities of such village or city shall be authorized to levy a tax annually upon all the taxable property of the district, village or city not to exceed two and one-half per cent, for educational and two and one-half per cent for building purposes # * *.”

The question presented so far as we have been able to find has never been passed upon by the courts of this state. In Vermont, Massachusetts and Kansas, statutes have been enacted providing that school districts may use a certain per cent of the school funds raised for educational purposes for the purpose of hauling children to and from school, but there is no such statute in this state. Section 26 of Article V prescribes what shall be the duties of the board of directors. Section 1 of Article VIII provides that for the purpose of establishing and supporting free schools a tax of two and one-half per cent may be levied for educational purposes, and it is settled law that all school expenses except the building of school houses must be paid from the educational fund.

The issuing of orders for wagons and the hauling of children and paying them out of the money in the building fund was a misapplication of the moneys of that fund. People v. T. St. L. & W. R. R. Co., 231 Ill. 514; C. & A. R. R. Co. v. People, 163 Ill. 616; Wabash R. R. Co. v. People, 187 Ill. 289; O’Day v. People, 171 Ill. 293. The policy of the law is to encourage the maintenance and efficiency of school systems; however, the officers of the school district have'not unlimited power. The legislature deemed it necessary to pass an act by which text books may be supplied to children whose parents are unable to buy them. If the contention of appellants be correct then that statute was unnecessary. The directors have only powers which are expressly granted them and such implied powers as are necessary to carry into effect the express powers delegated to them. To secure the right and opportunity of equal education does not require that the children should be hauled to school any more than it would require that the directors should clothe them or furnish meals. We are constrained to hold that the acts of the directors in hiring wagons and making contracts for the hauling of children to school were beyond their powers, illegal and void. There was no proof of a vote by the people as alleged in the answer, and the effect of such a vote is not before us. The decree of the Circuit Court is affirmed.

'Affirmed.


text:
    Rosalie B. Griswold et al. (Henrietta Vanderpoel, Appellant), v. William C. Heinroth et al., Appellees.
    Gen. No. 5089.
    1. Bills of review—when affidavits proper upon motion to dismiss; when not. If a hill of review is filed for the purpose of attacking a decree for errors apparent, affidavits in opposition to a motion to dismiss are inappropriate. If, however, the bill is only .interposed by reason of matters outside of the record, such affidavits are proper and may be considered by the court.
    2. Bills of review—when leave to file essential; when not. A bill of review which charges errors apparent upon the record may be filed without leave of court, but a bill of review predicated upon matters outside of the record can only be filed. upon leave previously granted by the court.
    3. Bills of review—when dismissal proper. A bill of review filed without leave of court which does not show errors in the decree attacked which pertain to the complainant’s interests, is properly dismissed; likewise is such a bill properly dismissed if so filed without leave of court if it appears that in so far as it relies upon matters outside the record the complainant therein and the complainant’s attorney were chargeable with gross negligence.
    Bill of review. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 11, 1910.
    Statement fey the Court. This is a bill of review brought on April 4,1908, by Eosalie B. Griswold, personally, and as executrix under the will of Sylvia E. Burnham, deceased, Henrietta Yanderpoel, George E. Dawson, as trustee, James H. Van Ylissingen and the Winthrop Harbor & Dock Company against William C. Heinroth and numerous other defendants, seeking to review a decree entered April 6, 1903, on a bill to foreclose a mortgage and trust deed in the Circuit Court of Lake county. The bill of review was removed from the files of the court by unknown parties and cannot be found, but a copy was supplied by leave of court. The complainants were unable to set forth in the bill of review, the bill in the original foreclosure proceedings, for the reason it also had been removed from the files by unknown parties, but in lieu of the bill what is alleged to be an abstract of it, from the records of the Lake County Title & Trust Company, is set forth in the bill. The defendants in an affidavit filed by. them on a motion to dismiss the bill of review produce what is sworn to be an exact copy of the original bill of foreclosure. .
    The facts material to the bill of review out of which this litigation arose are: On December 28, 1902, William J. Knight executed a note payable to Wm. M. Hoyt for the sum of $20,000, the payment of which was secured by a mortgage of the same date, recorded December 29, 1892, conveying to Hoyt as mortgagee, lot two, the east fraction of lot one, and the west half of lot one of fractional section two, being all of fractional section two; also all of fractional section eleven, all in township forty-six, range twelve, in Lake county, which will hereinafter be designated as the “Knight lands.” Subsequent to 1892, Knight conveyed his equity to the Winthrop Harbor & Dock Company, , which assumed the payment of the $20,000 note. Prior to the year 1900, the Winthrop Harbor & Dock Com- . pany which will hereinafter be designated as the “Dock Company” had acquired title to other real estate, contiguous to the Knight lands, which will be hereinafter designated as the “subdivided lands.”
    On March 13, 1900, the Dock Company executed sixteen principal promissory notes, payable to the order of itself five years after date, for amounts varying from $500 to $4,500 each. Each of these notes was secured by a trust deed of the same date on parcels of the subdivided lands, a separate trust deed securing each note; these trust deeds were recorded May 5, 1900. Sylvia E. Burnham was the indorsee and owner of six of these notes, and Rosalie B. Griswold was the indorsee and owner of the remaining ten, notes, all of which were unpaid at the time of foreclosure.
    On June 11, 1900, the Dock Company executed three principal notes, one for $7,500, one for $10,000 and one for $12,000 each payable to the order of itself, indorsed by the Dock Company and due five years after date. It is alleged in the bill of review that these notes, at the time of the beginning of the foreclosure suit, were the property of Henrietta Yanderpoel, and that she was the unknown owner of them at that time. The $7,500 note was secured by a trust deed to the Security Title & Trust Company, as trustee, on all of fractional section two of the Knight lands. The $10,-000 note was secured by a trust deed to the same trustee on the north half of fractional section eleven of the Knight lands. The $12,000 note was secured by a trust deed to the same trustee on the south half of fractional section two of the Knight lands. These trust deeds were all recorded July 18,1900.
    On October 1, 1900, the Dock Company executed a note for $15,000 payable to the order of itself ninety days after date and twelve notes for amounts varying from $600 to $900 each payable to the order of itself ninety days after date. On November 26, 1900, the Dock Company executed twenty-eight notes, twenty-seven being for $600 each and one for $700, all payable to the order of itself March 1, 1901. These notes were all indorsed by the Dock Company. At the time of the beginning of the foreclosure suit Rosalie B. G-riswold and Sylvia Burnham were the unknown owners of the twelve notes, each owning part of them, and Caroline Both was the unknown owner of the twenty-eight notes. On January 31, 1901, the Dock Company, to secure the $15,000 note dated October 1, 1900, on which $2,875.55 had' been paid, the twelve notes dated October 1, 1900, the twenty-eight notes dated November 26, 1900, the Knight note for $20,000 dated December 29, 1892, on which $5,000 had been paid, and some other notes which it is not necessary to describe here, executed a trust deed to William T. Underwood conveying to him as trustee certain subdivided lands. This trust deed was recorded February 12, 1901. The Underwood trust deed does not mention the $7,500 note, the $10,000 note or the $12,000 note, which together with the $15,000 note are in the bill of review alleged to be held by Henrietta Yanderpoel.
    The Knight note was assigned by Hoyt to William C. Heinroth as trustee, who assigned it to Leon Nubling, who assigned it to Louisa W. Foley as security for a debt of $5,000. The Dock Company appears to have sold lots both in the Knight lands and in the subdivided lands, and releases were made from time to time of lots that were covered by the Knight mortgage and lots included in the Underwood trust deed, but no question is raised concerning such releases or sales on this appeal.
    The foreclosure bill was filed by Louisa W. Foley to foreclose the Knight mortgage and the Underwood trust deed. While the .original foreclosure suit was pending Louisa W. Foley died and Elizabeth H. Heinroth and David T. Foley, her executors, were substituted as complainants. Among the parties made defendants to the foreclosure bill are Rosalie B. Gris-wold, Sylvia E. Burnham, Henrietta Yanderpoel, James H. Yan Ylissingen (who was the president of the Dock Company and appears to have executed all the various instruments executed by that company), the Winthrop Harbor & Dock Company, the Security Title & Trust Company, the unknown owner or holder or owners or holders of one principal note for $7,500 payable five years after date, dated June 11, 1900, made by the Winthrop Harbor & Dock Company payable to itself and indorsed by it, the unknown owner, etc., of the $10,000 note, the unknown owner, etc., of the $12,000 note, the unknown owner, etc., of the twelve notes dated October 1, 1900, the unknown owner, etc., of the twenty-eight notes dated November 26,1901, the unknown owner, etc., of the $15,000 note dated Octoher 1, 1900, and the unknown owner, etc., of the several notes mentioned. Each and all the notes were particularly described with the instrument securing it in that part of the original bill naming the parties defendant in the prayer for process. The original bill contains the following allegation concerning the notes secured by the Underwood trust deed: “and your oratrix avers on information and belief that all the notes secured by said trust deed have matured, and except the said note of William J. Knight have been paid.” The only allegation in the bill concerning the $7,500, the $10,000 and the $12,000 notes is what may be inferred from the following allegation, with the naming of the defendants in the prayer for process: “Tour oratrix further alleges on information and belief that subsequently to the execution, acknowledgment and recording of said mortgage deed and trust deed certain rights and interests in and to the lands or a part of them described in said mortgage deed and said trust deed were created and transferred as follows : * # * On or about June 11, 1900, said Winthrop Harbor & Dock Company executed three deeds each purporting to convey certain premises unto Security Title & Trust Company in trust to secure the payment of certain notes.” After describing the parties the bill proceeds “but your oratrix alleges that the interest of said parties, if any they have, or of any of them, is subsequent and subject to the liens of your oratrix and the defendants entitled to the proceeds of the notes described in said mortgage deed and said trust deed under and by virtue of said mortgage deed and said trust deed.” The bill waives the oath to the answer except that the defendants may be required to state under oath, (1) “The names and addresses of each and every the legal holders or owners of or parties interested in the notes described in said trust deed to William T. Underwood, trustee, set out above;” (2) seriatim and in detail the amount and dates of each and every payment on each of said notes, * * *; (3) “the amounts of principal and interest on each and every of said notes due and unpaid and not due and unpaid.”
    The bill of review alleges that an answer was filed by Henrietta Vanderpoel jointly with other defendants but does not set forth her answer, and that a default of the defendant Vanderpoel was improperly taken after her answer was filed. The absence of the an°swer from the bill of review is accounted for by an . affidavit embodied in the bill, made by John L. Bolen, an attorney, who swears he represented her in the original suit; that he was directed to file an answer for her and that he, as a member of the firm of Bolen & Stewart, did file an answer for her jointly with defendants, the Dock Company, Van Vlissingen and others, but that it had been removed from the files. A replication was filed to a joint and several answer of several defendants naming among such defendants, the Dock Company, Van Vlissingen and Henrietta Vanderpoel. It is however admitted by counsel for Henrietta Vanderpoel in their printed argument that she did not join in the joint answer, but that her name was inadvertently omitted from the answer. She, together with the Security Title & Trust Company, the unknown owners of the $7,500, the $10,000, the $12,000 and the $15,000 notes, was defaulted and the cause was referred to the master, who reported the evidence with his conclusions. The report of the master shows that Bolen & Stewart appeared before the master for the Dock Company and others, but the name of Vanderpoel is not mentioned among the defendants they appeared for. A decree was entered on the report of the master ordering a foreclosure and the payment to the executors of Louisa W. Foley of $5,170.57 and the balance of the proceeds up to $19,912.80 paid to William C. Heinroth as trustee for Nubling, and the surplus if any paid to Caroline Both up to the sum of $18,951.16; and finding that Sylvia E. Burnham had a prior lien for the amount of six notes dated March 13, 1900, on certain portions of real estate described in the Underwood deed by virtue of six prior conveyances to the Security Title & Trust Company and that Eosalie B. Q-riswold had a lien prior to complainant by virtue of ten conveyances to the Security Title & Trust Company severally securing ten notes of date March 13, 1900.
    The bill of review is not verified and was filed with-0 out leave of court. The defendants made a motion to dismiss the bill on the ground that a bill of review cannot be maintained by a party to a decree against whom it was entered pro confesso and that the fact disclosed by the bill of review upon which she bases her right to review is that she was at the time of the entering of the decree sought to be reviewed, and now is, the owner of the four notes for $7,500, $10,000, $12,000 and $15,000, a fact not disclosed in the original suit, and therefore not disclosed by the record in the suit sought to be reviewed, and that therefore the bill was erroneously filed in violation of the well-established practice in cases of this character.
    The defendants filed an affidavit of John L. Bolen stating that, since making the affidavit which is attached to the bill of review, he has seen the original answer filed by him in the original foreclosure suit of Foley v. the.Winthrop Harbor & Dock Company and attaches to the affidavit a copy of that answer, from which it appears that he neglected to answer for Henrietta Vanderpoel; also an affidavit of one of counsel for the defendants, with a copy of the original bill of foreclosure, of which the original was lost, and of which complainants in the bill of review only claim to have set forth an abstract obtained from a private abstract company without any showing as to its authenticity.
    The complainants in the bill of review moved to strike the affidavits filed by the defendants from the files. This motion the court overruled. The court then dismissed the hill of review as to complainants Vanderpoel, Van Vlissingen, the Winthrop Harbor & Dock Company and George E. Dawson and overruled the motion to dismiss as to Bosalie B. Griswold personally and as executrix of Sylvia E. Burnham, Henrietta Vanderpoel appeals from that order.
    Hat & Brown, for appellant, Henrietta Vanderpoel.
    Leslie A. Needham and George W. Field, for appellees ; George W. Manierre, of counsel.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellant assigns for error that the court erred in considering the affidavits filed by the appellees, on the hearing of the motion made by appellees to strike the bill of review from the files, and in refusing to strike the affidavits filed by appellees from the files.

If the bill of review is a bill to review the decree in the foreclosure suit for error in law apparent upon the face of the decree, then we are of the opinion it was not proper for the defendants to the bill, appellees in this court, to file affidavits for the reason such a bill may be filed without leave of the court and issues thereon should be made as in other chancery proceedings. On the other hand if the bill was based on matters outside the record, it was not error for appellees to file affidavits and for the court to consider them. Application for leave to file a bill of review upon matters of fact should be made by a petition supported by affidavits (Schaefer v. Wunderle, 154 Ill. 577) setting forth the new matter with particularity, showing that it has come to the knowledge of the petitioner since the time when it could have°been used in the original suit and that the petitioner and his attorney had not been negligent. It has been held that counter affidavits are admissible “not for the purpose of investigat-■ ing or absolutely deciding the truth of the statements in the petition; but to present in more exact shape some of the circumstances growing ont of the original proceedings which may assist the court in the prelimi-, nary discussion.” 3 Ency. of Pl. and Pr. 588. In this case the bill did not set out the original bill, but only what was alleged to be an abstract of it; neither did it set up the answer of those with whom it was alleged appellant answered jointly. It was proper and necessary that a copy of the bill and the answer, if there were such, should be set forth in the bill, and it was necessary that the court should be fully informed as to the original pleadings.

It is also insisted by appellant that the bill was to review a decree for error apparent on the record. It is necessary in a bill of review to state the former bill and the proceedings thereon. This bill only pretends to set out an abstract of the original bill obtained from a third party and is not sworn to. In the abstract there is a statement concerning the making of the Underwood trust deed securing the $15,000 note made by the Dock Company payable to its own order on which $2,875.55 had been paid when the trust deed was » made, and that- subsequent to the making of said mortgage and said trust deed certain rights and interests in and to the lands or part of them described in said mortgage and said trust deed were created or .transferred or attempted to be transferred as follows; then follows a description of subsequent conveyances, trust deeds, etc., and also the statement “on or about June 11, 1900, said Winthrop Harbor & Dock Company executed three deeds each purporting to convey certain premises unto Security Title & Trust Company to secure the payment of certain notes, but that if said deeds, levy and sale, or any of them, were made and executed, the interests and rights created thereby are all, each and every subsequent, subject and subordinate to the liens created by said mortgage and said trust deed sought to be foreclosed herein.” The bill of review in the abstract of the original bill omits entirely the following allegation that is in. the sworn copy of the original bill filed by the appellees: “And your oratrix avers on information and belief that all the notes secured by said trust deed have matured, and except the said note of William J. Knight have been paid.” Appellant in her bill alleges she was the owner of the $15,000 note described in the Underwood trust deed when the foreclosure suit was begun. The owner of that note was made a party to the foreclosure suit by the description of “the unknown owner or holder,” etc. The bill of foreclosure alleges that note was paid off. Appellant was a party defendant to the original bill and personally served with summons, and personally and as the unknown owner or holder, etc., of the $15,000 note was defaulted and thereby admitted the allegation of the bill that the note was paid off. Mason v. Patterson, 74 Ill. 191; Board of Supervisors v. Smith, 95 Ill. 328. There is no allegation in the bill of foreclosure concerning the $7,500, the $10,000 and the $12,000 notes except the broad allegation that “subsequent to the execution, acknowledgment and recording of said mortgage deed and said trust deed certain rights and interests in and to the lands or a part of them described in said mortgage deed and said trust deed were created and transferred or attempted to be transferred as follows. * * * On or about June 11,1900, said Winthrop Harbor & Dock Company executed three deeds each purporting to convey certain premises unto Security Title & Trust Company in trust to secure the payment of certain notes, but your oratrix charges that if said deed, levy and sale or any of them were made and executed the interest and rights created thereby are all, each and every, subsequent, subject and subordinate to the liens created by said mortgage deed and said trust deed sought to be foreclosed herein.” The foreclosure bill makes the owners of the notes for $7,500, $10,000 and $12,000 parties by the names of “the unknown owner or holder,” etc., and each of them were defaulted.

By the bill of review appellant seeks to assert the fact not' disclosed by the. record of the original suit that she was the owner of each of these notes and they were secured by deeds executed June 11, 1900. The original bill does not allege that these notes or any of them were secured by a trust deed, except in the description of the party owning the note, who is described as. “the unknown owner or holder or owners or holders of one (1) principal note for $7,500 payable five years after its date with interest at six (6) per cent per annum and ten (10) interest notes for two hundred and twenty-five (225) dollars each and payable respectively on the eleventh day of December and June in each year; all of said eleven notes dated June 11, 1900, made by the Winthrop Harbor & Dock Company payable to the order of itself and by it endorsed and delivered and bearing interest after due at seven (7) per cent per annum, and payable at Chicago, Illinois, and secured by deed of trust dated June 11, 1900, and recorded July 18, 1900, in the Recorder’s office of Lake county, Illinois, as document number 78,755, conveying all of fractional section two (2) in township forty-six (46) north, range twelve (12) east of the 3d principal meridian.” The other two notes are described with the same particularity in describing their owners, the $10,000 note being secured by trust deed on the north half of fractional eleven, and the $12,000 note being secured on the south half of fractional two. These three notes are secured by trust deeds to the same lands that are described in the mortgage deed dated December 28, 1892, recorded December 29, 1892, so that it is apparent that the lien of the trust deed is subsequent and subject to the lien of the original Knight mortgage.

The three notes of $7,500, $10,000 and $12,000 held by appellant were secured on the same lands as were included in the original Knight mortgage but by trust deeds eight years subsequent to the Knight mortgage. The $15,000 note owned by appellant was secured by a ■trust deed on all the Knight lands and the subdivided lands, but it being alleged to have been paid, which allegation the default admits, the bill of review so far as appellant is concerned is a bill based on her new allegations that she was the owner of the notes and that the $15,000 note has not been paid. If the other notes are not paid they were secured by trust deeds covering the same property as the prior Knight mortgage. There is no apparent error of law in the record that concerns appellant. The bill is based upon matters outside the record and upon the gross negligence of appellant and her attorney. The bill having been filed without leave of court was properly dismissed as to her. None of the other parties have seen fit to question the right of appellant to bring the cause here while it is still pending in the court below as to one complainant, and we do not consider it necessary to discuss our jurisdiction when it is not assailed.

Affirmed.