text:
    Lyon & Healy, Appellant, v. Andrew J. Walldren, Appellee.
    Gen. No. 22,351.
    1. Replevin, § 164

      —what question presented on appeal from judgment awarding writ of retorno habendo. On appeal from a judgment in an action of replevin tried without a jury, which judgment finds for defendant and awards a writ of retorno habendo for the return of the property replevied, the only question presented for review is whether plaintiff made out a prima facie case on which a finding in its favor, if made, could have been sustained.
    2. Sales, § 436*—who bound by contract of conditional sale. A contract whereby the vendor sells an article on condition that payment be made in instalments, the article to become the property of vendee when fully paid for, until which time title is to remain in the vendor, is binding as between the parties and those having knowledge of the transaction.
    3. Replevin, § 123*—when evidence insufficient to charge subsequent purchaser with knowledge of conditional sale. In an action of replevin to recover possession of a piano sold under an agreement of conditional sale, which piano had not been paid for, where it appeared that defendant bought the piano from one not the vendee of plaintiff, and who had the piano in his possession, evidence held insufficient to charge defendant with knowledge of the nature of the transaction between plaintiff and the vendee under the agreement of conditional sale.
    4. Sales, § 436*—what possession is prima facie evidence of. The possession of a chattel is prima facie evidence of its ownership by the possessor.
    5. Sales, § 436*—when subsequent purchaser takes free from claims of seller. One who buys a chattel from one in whose possession it is takes it free from rights and claims of which the purchaser has no knowledge.
    Appeal from the Municipal Court of Chicago; the Hon. John Stelic, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed October 30, 1916.
    Rehearing denied November 13, 1916.
    Charles S. Knudson, for appellant.

      Claude F. Smith and Otto Wadewitz, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment in an action of replevin for a so-called ‘ Sheraton piano” in favor of defendant and awarding a writ of retorno habendo for the return of the piano to defendant, from whom it was taken by plaintiff under the writ of replevin issued in the action.

The cause was submitted to the court for trial without a jury, who entered the judgment appealed from at the conclusion of plaintiff’s case. In this condition of the record the only question presented for our decision is: Did plaintiff make out a prima facie case on which a finding in its favor, if made, could have been sustained? Plaintiff proved that the piano taken on the replevin writ had been sold by it to a Mrs. Martha Butterfield, who paid on account of the purchase price five dollars, and for the balance gave a conditional sale note payable in instalments, which provided that when the payments stated were all made the piano should be the property of Mrs. Butterfield, and until then the title to the piano should remain in plaintiff. As between the parties and those having knowledge of the terms of the transaction the contract was binding. The evidence, however, shows that defendant bought the piano from a third party named Kerber, but failed to charge defendant with knowledge, either actual or constructive, of the contract existing between plaintiff and Butterfield, or that Mrs. Butterfield ever claimed to own, the piano. Nor are there any facts or circumstances appearing in the proofs which either in fact or in law would charge defendant with knowledge that plaintiff had sold the piano conditionally to Mrs. Butterfield or any one else. The possession of the piano by Kerber was prima facie evidence of his ownership. Defendant, having bought the piano from Kerber without any knowledge of the rights or claims of plaintiff, took it free from any such claims. Emerson Piano Co. v. Maund, 85 Ill. App. 453; W. W. Kimball Co. v. Cruikshank, 123 Ill. App. 580.

A transaction similar to the instant case both on fact and legal principles was held in Harkness v. Russell, 118 U. S. 663, to bind a third party who had knowledge of the terms of the conditional sale and of the rights of the seller thereunder. Many cases from the English and other courts are cited in the opinion in the Russell case, supra, which hold to the effect that the vendee in a conditional sale takes no title until the conditions of the sale are performed, and can consequently convey no title to a third party even though such third party have no knowledge of the condition attached to such vendee’s possession. These cases are not only clear obiter dicta, as the question of the rights of an innocent purchaser was not involved in or necessary to the decision of the Bussell case, supra, but such decisions are contrary to the trend of the rulings of our own courts and of the public policy which such rulings establish in this State.

The doctrine controlling conditional sales is clearly stated in Gilbert v. National Cash Register Co., 176 Ill. 288, where the court say: “In Illinois ‘if a person agrees to sell to another a chattel on condition that the price should be paid within a certain time, retaining the title in himself in the meantime, and delivers the chattel to the vendee so as to clothe him with an apparent ownership, a bona fide purchaser or execution creditor of the latter is entitled to protection as. against the claim of the original vendor, ’ ” citing cases, and continuing say: “Whatever may be the rule in other jurisdictions, it is well settled in this State that the owner of personal property will not be permitted to sell it, either absolutely or conditionally, and still continue in possession of it. The party in possession of personal property is presumed to he the owner of it, possession being one of the strongest evidences of title to personal property. ‘To suffer, without notice to the world, the real ownership to be in one person and the ostensible ownership in another, gives a false credit to the latter and in this way works an injury to third persons.’ ” Hacker v. B. Munroe & Son, 176 Ill. 384.

The judgment of the Municipal Court being right, is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Elias B. Woolf et al., Copartners, trading as E. B. Woolf & Company, Appellees, v. Alfred Hamburger, Appellant.
    Gen. No. 22,354.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Look-wood Honors, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and judgment here for $750.
    Opinion filed October 30, 1916.
    Rehearing denied November 13, 1916.
    Statement of the Case.
    Action by Elias B. Woolf, Sidney Kahnweiler and Emil Koritz, copartners, trading as E. B. Woolf & Company, plaintiffs, against Alfred Hamburger, defendant, in the Circuit Court of Cook county, to recover on a quantum meruit brokers’ commissions for the sale by plaintiffs of a printing plant of defendant. From a judgment for plaintiffs, defendant appeals.
    It was undisputed that there were negotiations between defendant and a broker employed by plaintiffs, and that the purchaser to whom defendant sold the property was introduced to defendant by such broker. Defendant claimed that plaintiffs’ negotiations were suspended and that he made the sale by his own efforts.
    Abstract of the Decision.
    1. Brokers, § 90

      —when evidence sufficient to sustain action for commissions. In an action to recover brokers’ commissions, which action was tried without a jury, a finding that defendant employed plaintiffs to make the sale and that the same was made to the purchaser procured by plaintiffs, on terms satisfactory to defendant, held sustained by the evidence.
    2. Brokers, § 36*—what constitutes performance of contract for commissions. A broker, in order to entitle himself to commissions, must show that he has produced a purchaser ready and willing to take the property on the terms specified, or that his efforts were the procuring cause of the sale which the principal has made to the purchaser with whom he has been brought into communication.
    3. Brokers, § 37*—when broker is efficient procuring cause of sale. Where an owner of property actually sells to a purchaser procured by brokers whom he has employed to secure such purchaser, and on terms agreed on between the owner and the purchaser, the brokers are the efficient procuring cause of the sale although there is evidence that during the preliminary negotiations the purchaser was unable to come to terms with the owner, and stated that he could not buy the property for himself but intended to sell it to a third party.
    4. Trial, § 299*—when refusal to hold propositions of law not error. In a case tried without a jury it is not error to refuse to hold propositions of law which are inapplicable to the facts established by the evidence.
    5. Brokers—what method of fixing amount of judgment for commissions erroneous. In an action to recover brokers’ commissions, which action is tried without a jury, and where the evidence is conflicting as to what is the usual and customary commission payable on such a sale, some witnesses fixing it at five per cent, on the value of the property sold, and others at two and a half per cent., it is error for the court arbitrarily to fix the sum recoverable at an amount less than that fixed by any of the witnesses, since the court cannot set up its undisclosed judgment as a basis for the assessment of damages, but must either accept one or the other of the rates testified to, or assess damages at an amount between such rates, and not above or below them.

      E. S. Hartman, for appellant.
    Simeon Straus and Ira E. Straus, for appellees.

      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 Holdom

delivered the opinion of the court.

6. Damages, § 243 —how determined. Damages must be assessed from the evidence in the record, and not dehors the record.

7. Appeal and error, § 576*—when cross errors assigned cannot be heard. On appeal from a judgment for plaintiffs in an action tried without a jury, cross errors assigned by plaintiffs as to the measure of damages cannot be heard where no objection or exception to the action of the court complained of was made or preserved at the trial.

8. Appeal and error, § 1810*—when failure to except to judgment does not prevent entry of proper judgment. Where in an action tried without a jury the court adopts a wrong measure of damages and consequently enters a judgment for plaintiffs in an amount less than the amount of such judgment if a proper measure of damages had been adopted, the Appellate Court is not prevented from entering the proper judgment by the fact that plaintiffs’ cross errors cannot be heard, owing to the want of objection or exception in the trial court.


text:
    Orson A. Hunt, Appellee, v. Sarah Marie Hunt, Appellant.
    Gen. No. 22,368.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1303

      —when evidence presumed sufficient to sustain decree. In the absence of a certificate of evidence, it will be presumed that the court heard evidence sufficient to sustain the findings of a decree and to warrant the granting of the relief prayed.
    2. Appeal and error, § 1744*—when decree cannot he attacked. Where the record shows no facts impeaching the verity of facts found in a decree, the decree is impervious to attack either on appeal or collaterally.
    3. Marriage, § 29*—when void and may he annulled. In this State if a marriage is celebrated within the time within which one of the parties is forbidden to marry, such marriage is void and may be annulled.
    Appeal from the ,Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Bill in chancery by Orson A. Hunt, complainant, against Sarah Marie Hunt, defendant, in the Superior Court of Cook county, to annul a marriage. From a decree granting the relief prayed, defendant appeals.
    Charles E. Erbstein and Charles P. B. Macaulay, for appellant.
    Cornelius S. See, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Henry F. Weydert, Appellee, v. City of Chicago et al., Appellants. Michael Moon, Appellee, v. City of Chicago et al., Appellants.
    Gen. Nos. 22,401, 22,402.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed October 30, 1916.
    Statement of the Case.
    Petition for mandamus by Henry F. Weydert, petitioner, against the City of Chicago, William Hale Thompson, mayor, Thomas O’Connor, fire marshal, and Percy B. Coffin, Charles E. Frazier and Joseph P. Geary, civil service commissioners, respondents, and a similar petition by Michael Moon, petitioner, against the same respondents, both in the Circuit Court of Cook county, both praying to be reinstated in the office of captain in the fire department of the respondent city. From judgments awarding the writ in each case as prayed, respondents appeal.
    The two causes were consolidated for hearing on one set of briefs on motion of respondents. The cases are similar with the exception of the dates of the occurences alleged, which affect neither the rights of parties or the rulings of either court.
    Each petitioner after rising to the rank of captain in the fire department was retired on a pension for disability, and, subsequently recovering, each was restored to his rank, and subsequently discharged by the fire marshal.
    Samuel A. Ettelson, for appellants; Roy S. Gaskill, of counsel.

      Abstract of the Decision.
    1. Mandamus, § 139

      —what prayers for relief cannot he combined in petition. A petition for mandamus praying for dual relief, such as the restoration of a member of the fire department of a city and for an award of salary, is obnoxious to a general demurrer, since prayers for such relief cannot be combined in such a petition.
    2. Civil service, § 30*—what does not give discharged employee additional claim to reinstatement. In a petition for mandamus by a former captain in the fire department of a city, where it appears that after being retired for disability petitioner was restored tó his rank and afterwards discharged, the fact that petitioner was a pensioner while suffering the disability contracted in the service gives him no additional claim to reinstatement either in office or on the pension roll after discharge.
    3. Civil service, § 10*—what employees may he discharged without trial. Captains of the fire department of a city who are not civil service employees may be discharged at any time without charges or a trial before the Civil Service Board.
    4. Civil service, § 27*—when petition for mandamus for reinstatement insufficient. A petition for mandamus seeking reinstatement in office which fails to plead the ordinance creating the office is obnoxious to demurrer, since unless it is first established that the office sought, exists either by statute or ordinance, the party seeking it has no standing in a court of law.
    Bauer-& Donoghue, for appellees.

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

   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Presiding Justice Barnes

text:
    Gustave Mueller, Defendant in Error, v. A. L. Wargny, Plaintiff in Error.
    Gen. No. 21,691.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlib, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Action by Gustave Mueller, plaintiff, against A. L. Wargny, defendant, in the Municipal Court of Chicago, to recover a balance of money loaned. To reverse a judgment for plaintiff for $375, defendant prosecutes this writ of error.
    Defendant and his brother Paul, who were engaged in selling automobiles, arranged a transaction whereby they secured^ from the makers an automobile, for which cash had to be paid, which automobile they resold for part cash, part notes secured by mortgage of the automobile, and the balance by the delivery of an old car at an agreed valuation. To secure the cash to pay for the car, defendant or his brother procured plaintiff to advance $1,270. In previous transactions Paul had obtained money from plaintiff, giving him in exchange the purchaser’s mortgage notes, and a share in the profits. In this case plaintiff advanced the money at Paul’s request, but defendant and Paul differed as to which made the contract with plaintiff, who testified that he was to get back notes and mortgage to the amount of the loan, and a share -in the profits, and knew nothing about the car taken in exchange until after the transaction was closed. He received $25 cash and notes to the amount of $870, leaving a balance of $375, which he understood was to be paid in notes, which was not done, nor did defendant sell the car taken in exchange.

      Abstract of the Decision.
    Partnership, § 21

      —when evidence sufficient to show loan and not partnership transaction. In an action to recover an alleged balance due for money loaned, where defendant claimed that plaintiff advanced the money in a partnership transaction by which an automobile was to be bought for cash and resold for part cash, part notes and the balance by the delivery of an old car, and where the evidence was conflicting, evidence held to sustain a finding that the transaction was a loan, by which plaintiff was to get back the amount of his advance in the shape of notes or cash, and a share in the profits.
    Frank L. Childs and Beryl Howard Childs, for plaintiff in error.
    Baker & Holder, for defendant in error; CL Raymond Collins, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Robert S. Iles and Robert D. Martin, Appellees, v. Julius Heidenreich et al., on appeal of Ida M. Heidenreich, Appellant.
    Gen. No. 21,708.
    1. Judgment, § 419

      —when dismissal of action is not bar to subsequent suit. On a creditor’s bill alleging that defendant had transferred a master’s certificate .of sale at a foreclosure sale, the proceeds of which, after redemption, were alleged to be in the hands of the sheriff, a plea that the validity of the transfer attacked had been adjudicated by garnishment proceedings commenced by complainants at law to reach such funds is insufficient, and is properly overruled where it appears from the plea that the garnishment proceedings were dismissed for want of prosecution, since such a dismissal is not a trial or adjudication of the matters at issue.
    2. Municipal Court of Chicago, § 7*—what is nature of act relative to commencement of first-class action. The Municipal Court Act, par. 4, sec. 28 (J. & A. ¶ 3340), providing that no first-class action shall be commenced in such court unless the defendant, if there be but one, “resides or is found” within the city, relates only to acquiring jurisdiction of the person, and not to that of the subject-matter of the action.
    3. Municipal Court of Chicago, § 8*—how jurisdiction of nonresident is acquired. The Municipal Court Act, par. 4, sec. 28 (J. & A. ¶ 3340), providing that no first-class action shall be commenced in such court unless defendant, if there be but one, “resides or is found” within the city, confers jurisdiction of a nonresident, if “found” within the city, within the meaning of the act.
    4. Appearance, § 16*—when service of process is unnecessary. Service of process on a defendant is unnecessary where the party appears either in person or by attorney, and jurisdiction of the person is conferred and defects of process and service waived by an appearance without objection, or by pleading to the merits after an adverse ruling on a motion to quash the summons.
    5. Municipal Court of Chicago, § 8*—how defendant may te “found" within City of Chicago. A defendant may be “found” within the City of Chicago,, within the meaning of the Municipal Court Act, par. 4, sec. 28 (J. & A. ¶ 3340), relating to first-class cases, by appearing and waiving process.
    6. Fraud, § 85*—what is effect of withdrawal of demurrer to till. A defendant who demurs to a bill charging fraud is not, by withdrawing the demurrer, estopped from later raising the question of fraud, since the demurrer does not admit fraud where the facts alleged do not necessarily amount to fraud.
    7. Fraudulent conveyances, § 7*—when transfer may be impeached as without consideration. In order to impeach a transfer without consideration, it must appear (1) that it was a voluntary gift; (2) that when made there was an existing indebtedness of the donor; and (3) that the donor did not retain sufficient property to pay his indebtedness.
    8. Fraudulent conveyances, § 223*—what must be shown to establish fraudulent voluntary gift. In order to constitute presumptive or legal fraud in the case of a voluntary gift, it is necessary both to aver and prove the insolvency of the donor at the time of the gift, and the return of an execution nulla tona establishes prima facie insolvency only at the time of its return.

      9. Creditors’ suit, § 48

      —when judgment creditor’s hill to set aside voluntary gift is insufficient. On a creditor’s bill to set aside a voluntary gift by defendant, alleged to be in fraud of complainants, judgment creditors of defendant, the failure of the bill to allege the insolvency of defendant at the time of making the gift is not supplied by an allegation of concealment of other money or its avails, since such allegation is to be construed most strongly against the pleader, and since if such concealment constitutes fraud, it' must have been done at the time of the gift, which was not alleged.
    10. Creditors’ suit, § 57*—when judgment creditor’s hill to set aside voluntary gift should not he dismissed. The fact that a creditor’s bill seeking to set aside a voluntary gift alleged to be in fraud of creditors is insufficient owing to failure to allege the insolvency of the donor at the time of the gift is not ground for dismissing the bill, where the bill alleges a concealment of his property by defendant, since complainants have still a right to proceed under the bill for a discovery of the property alleged to be concealed.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed November 14, 1916.
    Farlin H. Ball and G. A. Buresh, for appellant.
    Robert S. Iles and Robert D. Martin, pro se.

      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 said section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Appellees filed a creditor’s hill, afterwards amended, based on a judgment for $1,500 rendered against Julius Heidenreicli in the Municipal Court of Chicago. In addition to the usual allegations as to the issuance of an execution and a return nulla bona and the concealment and transfer of property that ought to be applied to the payment of the judgment, it alleged that while the action in which the judgment was rendered was pending said Heidenreich received and assigned to his daughter Ida (appellant), without consideration and to defraud complainants and other creditors, a master’s certificate of sale in a foreclosure proceeding, which was redeemed, and that Michael Zimmer, the sheriff of Cook county, still held $3,000 of the redemption money out of which the bill sought satisfaction of such judgment.

After withdrawing their demurrers to said amended bill, the Heidenreichs obtained leave to plead double and filed pleas thereto which were overruled and by which they elected to stand. The decree on said bill taken as confessed against them set aside said certificate as fraudulent and void against complainants, the appellees. From that decree Ida Heidenreich prosecutes this appeal.

The pleas went to the jurisdiction of the Municipal Court of Chicago to render the judgment on which the creditor’s bill was based, and one of appellant’s pleas averred that a garnishment proceeding brought against Zimmer in the Municipal Court before the filing of the bill herein, to reach the fund in his hands, was res adjudicata of the question of the validity of the transfer and assignment of said certificate of sale.

The averments of the latter plea were clearly insufficient. After stating the facts pertaining to the institution of such garnishment proceeding by complainants and alleging that their traverse to the garnishee’s answer raised an issue as to the character and effect of such transfer and the ownership of such moneys in the garnishee’s hands, the plea averred that “said cause was called for trial and said plaintiffs were unable to prove their allegations and said garnishment suit was dismissed on motion of garnishee at plaintiffs’ costs and the garnishee discfiarged, ” and averred as a conclusion therefrom that the matters and things respecting said transfer and assignment were thus adversely decided against complainants and became res adjudicata. It is enough to say on this point that the quoted averment as to the disposition of the garnishment proceeding does not show a trial or adjudication of the case on its merits but what appears to be simply a dismissal thereof for want of prosecution. A mere dismissal of a suit is,manifestly not an adjudication of the matters at issue, and the plea in that respect was properly overruled.

The plea as to want of jurisdiction of the Municipal Court to render the judgment on which the creditor’s bill was based, is predicated on paragraph 4, section 28 of the Municipal Court Act (J. & A. ¶ 3340) and upon the averments that said Julius Heidenreich was sole defendant to the suit in which such judgment was rendered and was not a resident of Chicago, and was served with summons outside of its territorial limits, namely, in the Village of Morgan Park, where he then and ever since has resided, and that the official return of service as made in Chicago was due to the officer’s mistaken belief that said village had been annexed to the City of Chicago.

Paragraph 4, section 28 of said Act relates to the commencement and prosecution of suits of the “first class,” to which the one so brought against Julius Heidenreich belonged. The paragraph so far as pertinent reads:

“Fourth: No suit shall be commenced in the Municipal Court unless the defendant, if there be but one defendant, resides or is found within the City of Chicago. ’ ’

The point made is that under the alleged circumstances said Julius Heidenreich was not “found” within the City of Chicago when the suit was “commenced. ’ ’

Allegations of the bill not denied are that in said suit said Heidenreich filed his appearance and written pleading, and appeared and went to trial on the issues. The sufficiency of the plea, therefore, depends upon its failure to meet such allegations. For, notwithstanding Heidenreich’s nonresidence and an apparently void service of summons on him, the question is whether such state of facts undenied by the plea did not confer the jurisdiction attacked.

It is contended by appellant that while the Municipal Court had jurisdiction to hear and adjudicate upon a contract case involving more than $1,000, like the one brought therein against Julius Heidenreich, yet in view of the quoted language of the Municipal Court Act it did not have jurisdiction of that particular case unless at the very time it was commenced said Heidenreich resided or was “found” in the limits of Chicago; in brief, that residence or being “found” when the suit is commenced relates not merely to the jurisdiction of the person but to the subject-matter of the particular action. We do not so interpret the statute, and the eases cited by appellant are not pertinent. We think the language of the act so quoted relates only to acquiring jurisdiction of the person, which is conferred even on a nonresident if “found” within the limits of Chicago, beyond which of course the process of that court cannot go. (Wilcox v. Conklin, 255 Ill. 604.) And even though we confine the term “found” to the method of acquiring jurisdiction by service of process, still service by process is unnecessary when the party appears, whether in person or by attorney (Abbott v. Semple, 25 Ill. 107; Dunning v. Dunning, 37 Ill. 306) and entry of appearance without objection, or pleading to the merits after an adverse ruling upon a motion to quash the summons, waives defects of process and service, and confers jurisdiction of the person. (Franklin Life Ins., Co. v. Hickson, 197 Ill. 117; Martin v. Martin, 170 Ill. 18; Mix v. People, 106 Ill. 425; Siegel v. A. H. Andreivs & Co., 181 Ill. 350.) In other words when residence is not an indispensable element of the court’s jurisdiction and jurisdiction of the person may be acquired by due service of process, the method by which the person is brought before the court does not pertain to the subject-matter of the court’s jurisdiction, if the usual method of process and service may both be waived.

Appellant finds support for her theory in the mandatory language “no suit shall be commenced” unless the defendant resides or “is found” etc. We do not understand appellant to argue that being “found” must be contemporaneous with “commencement” of the suit. If so, it could not relate to service of process and would require a definition of the word “found” not only unusual in statutes of this character, but impractical, if not meaningless. If the court may acquire jurisdiction of one when found in its territorial jurisdiction by service of process, which must of necessity follow the commencement of the suit, then he may be found by appearing and waiving process. Otherwise the result would be the anomaly that a first-class case of the Municipal Court would be the only case in that court or any other we know of wherein a nonresident defendant could not confer jurisdiction of his person by consent. Hence, we do not think that the circumstances present a case where there was a want of jurisdiction of the subject-matter of the action, but rather where there, was jurisdiction of the subject-matter and where a defective service of process was waived and jurisdiction of the person conferred by appearance and pleading to the action. Hence the pleas were properly overruled.

But appellant urges that the allegations of the Mill do not support the decree as to fraud in such transfer,' and that it should for that reason have been dismissed.' For appellees’ contention that appellant is estopped from raising the question because she withdrew her demurrer to the bill, we know of no authority. Even a demurrer does not admit fraud when the facts alleged do not necessarily amount to fraud (Sterling Gas. Co. v. Higby, 134 Ill. 557); and it is familiar law that “mere conclusions of the pleader without averments as to facts will not support an allegation of fraud.” (Harrigan v. County of Peoria, 262 Ill. 36, 45.)

The particular finding claimed to be unwarranted is that the assignment of the master’s certificate was made with the intent and purpose to defeat and prevent recovery by complainants in their action at law and is fraudulent and void as to them.

The principal allegations of the bill relied on to support this conclusion in addition to those pertaining to the obtaining of judgment, the issuance of execution and the return nulla tona, are to the effect that the assignment from Julius Heidenreich to his daughter was without consideration, that she was dependent upon her father for support and wholly without means to pay a valuable consideration therefor; that at the date of the judgment and when the bill was filed said Heidenreich was the beneficial owner of money amounting to $86,000 and that at the latter date he still had the same in moneys, securities or other property and kept them concealed for the purpose of preventing satisfaction of such judgment, and that if he has made any transfer or disposition thereof it was color-able and made with such purpose and would so appear if he was required to answer interrogatories in the bill, etc.

There are no other allegations respecting fraud that are not mere conclusions. The bill does not allege insolvency of the judgment debtor at any time, or that he has not retained sufficient property to pay his indebtedness. In fact the allegations that he still has $86,000, or the avails thereof, though concealed, would be construed most strongly against the pleader on that subject. Hence, the finding complained of rests mainly on two only of the three elements necessary to impeach such an assignment, viz.: that it constituted a voluntary gift and that when made there was an existing indebtedness of the donor. But the bill lacks any allegation supplying the third element, that the donor did not retain sufficient property to pay Ms indebtedness. (State Bank of Clinton v. Barnett, 250 Ill. 312, 317.) In the case cited it was held that to constitute presumptive or legal fraud in case of a voluntary gift it is necessary both to aver and prove insolvency at the time of the gift; that the return of the execution nulla bona establishes prima facie insolvency only at the time of its return. There as here no such averment was made, and the decree was reversed with directions to dismiss the bill.

Nor is the failure to allege insolvency at the time the gift was made supplied by the allegation of concealment of such moneys or the avails thereof. For if such conceaMient of itself constitutes fraud, still to render such assignment fraudulent, there must by analogy have been such concealment at the time of the assignment to render the latter fraudulent. In the absence of any averments of facts existing at the time of the gift that would impeach such assignment, the bill does not support the decree setting it aside as fraudulent.

But we are of the opinion that the bill should not be dismissed and that complainants would still have a right to proceed under the bill for a discovery of property alleged to be concealed. Accordingly the decree will be reversed and the cause remanded for such action as is consistent herewith.

jReversed and remanded.


text:
    Robert S. Iles et al., Plaintiffs, v. Julius Heidenreich et al., Defendants. Michael Zimmer, Sheriff, Appellee, v. Robert S. Iles et al., on appeal of Ida M. Heidenreich, Appellant.
    Gen. No. 21,709.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed with instructions to modify decree.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Bill in chancery by Robert S. lies et al., complainants, against Julius Heidenreich et' al., defendants, and cross-bill by Michael Zimmer, sheriff of Cook county, complainant, against Robert S. lies et al., defendants. From, a decree granting the prayer of the cross-bill, defendant Ida M. Heidenreich appeals.
    The bill was a creditor’s bill seeking to reach funds deposited in the hands of the cross complainant in his official capacity as sheriff of Cook county to redeem real estate from a master’s certificate of sale in foreclosure proceeding’s. The cross-bill was of inter-pleader, containing the usual allegations, and that defendant Ida M. Heidenreich claimed the redemption money by reason of an assignment of the certificate, and that defendants Robert S. Iles et al., claimed such money by reason of the alleged lien of their judgment on the certificate. See also, case No. 21,708, 201 Ill. App., p. 619, and case No. 22,554, post, p. 4.
    lies and Martin answered the .cross-bill admitting its allegations and stating their claim, and the Heidenreichs demurred. Later Zimmer filed an amended and supplemental cross-bill, as to which the pleadings to the cross-bill were permitted to stand, and the demurrer and additional demurrers were overruled. Defendant Julius Heidenreich stood by his demurrers and defendant Ida Heidenreich answered.
    A separate decree from that entered on the bill was entered ordering the deposit of such money with the clerk of the court, discharging the cross complainant from all liability to the Heidenreichs, and enjoining defendant Ida Heidenreich, according to the prayer of the amended and supplemental cross-bill, from prosecuting an action in tort against Zimmer for refusing to pay such moneys to her on demand therefor.
    Farlin H. Ball and G-. A. Buresh, for appellant.
    Robert S. Iles and Robert D. Martin, pro se.

    Thompson, Moore & Clark, for appellee; Edwin White Moore, of counsel.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Interpleader—when bringing of action of conversion against complainant not a defense. Where a bill of interpleader alleges that a specific fund is in the hands of complainant, to which fund adverse claims are made by two parties, it is no defense to the bill that it sets up the fact that one of the claimants brought an action of tort for conversion against complainant, thereby, as claimant claims, making her claim that of damages for conversion, and not to the specific fund, where in her answer such claimant claims the specific fund, taking issue with complainant on his right to withhold it, and to the remedy of interpleader, and where it does not appear, by the pleadings or evidence, that there was a conversion.

2. Trover and conversion, § 39 —when evidence insufficient to show conversion of money. Conversion of a sum of money is not shown by proof of demand and refusal where it appears that at the time of the demand and refusal the person charged with conversion was a defendant in garnishment proceedings to reach the fund demanded, and later, and up to the time an action was commenced to recover for the alleged conversion, was under order of court to hold and retain the fund in the garnishment proceedings until further order of court.

3. Interpleader, § 8*—when rights of defendants deemed to have been derived from common source. On a bill of interpleader, where it appears that the fund in the hands of complainant is money deposited with him in his official capacity as sheriff to redeem real estate from a master’s certificate of sale in foreclosure proceedings, it cannot be successfully maintained that the claims of defendants are not dependent on or derived from a common source, where it appears that one class of defendants claim as judgment creditors on the ground of a fraudulent assignment of the master’s certificate, and that the other defendant claims under the assignment, the claims of both emanating from the certificate, the one being a claim of an equitable right and the other of a legal right.

4. Interpleader, § 6*—when bill of is maintainable. A bill of interpleader is maintainable where both parties claim the same credit or chose in action, and it matters not though the claim of one is actionable at law, and the other in equity.

5. Interpleader, § 6*—when bill of is maintainable. On a bill of interpleader, where it appeared that the fund in the hands of complainant was money deposited with him in his official capacity as sheriff t d redeem real estate from a master’s certificate in foreclosure proceedings, where one class of defendants claimed as judgment creditors on the ground of a fraudulent assignment of the master’s certificate, and the other under the assignment, held that the facts presented a proper case for interpleader, and that an order that complainant pay over the fund to the clerk and that he be discharged from liability was proper.

6. Interpleader, § 18 —what decree should not contain. Although the only relief properly sought by a bill of interpleader is that which effectually discharges petitioner from further liability or annoyance in regard to the fund or property as to which adverse claims are made, and although such rélief may include injunctive relief against the prosecution of proceedings to establish title or ownership to the fund or property, yet it is not the purpose- of such a bill to litigate claims other than rights to the property, for which reason it is error to include injunctive relief in the decree restraining defendant from prosecuting an action in tort for damages for withholding the fund, such action presenting a distinct question, the purpose of which was not to recover the fund.

7. Interpleader, § 18*-—what decree should contain. A decree granting the prayer of a bill of interpleader and ordering the fund to be paid to the clerk should include an order to the cross defendants to interplead.


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    Robert S. Iles and Robert D. Martin, Defendants in Error, v. Julius Heidenreich et al. Julius Heidenreich, Plaintiff in Error. Michael Zimmer, Sheriff, Defendant in Error, v. Robert S. Iles et al. Julius Heidenreich, Plaintiff in Error.
    Gen. No. 22,554.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Creditor’s bill by Robert S. lies and Robert D. Martin, complainants, against Julius Heidenreich, Ida M. Heidenreich and Michael Zimmer, sheriff of Cook county, defendants, in the Superior Court of Cook county, to reach a master’s certificate of sale in foreclosure proceedings, alleged to have been transferred by defendant Julius Heidenreich, a judgment debtor of complainants, to defendant Ida Heidenreich, in fraud of plaintiffs; cross-bill by defendant Zimmer, as sheriff of Cook county, in the nature of interpleader, against complainants lies and Martin, and defendants Heidenreich, to determine the title to a fund in his hands as sheriff, being money paid to him in redemption of the certificate in question. This case was consolidated with cases No. 21,708, 201 Ill. App. 619, and 21,709, ante, p. 1, which were appeals by Ida Heidenreich from a decree on an amended creditor’s bill and a separate decree on a cross and supplemental bill of interpleader, respectively. To reverse a decree on the bill setting aside the transfer of the certificate, and a separate decree on the cross-bill, granting the inter-pleader and ordering the fund paid to the clerk, and that cross complainant be discharged from further liability, defendant Julius Heidenreich prosecutes a single writ of error.
    Farlan H. Ball and Gr. A. Buresh, for plaintiff in error.
    No appearance for defendant in error.
    Abstract of the Decision.
    1. Cbeditobs’ suit, § 48

      —when MTl insufficient. On a creditor’s bill to reach a master’s certificate of sale in foreclosure proceedings, alleged to have been conveyed by a judgment debtor of plaintiffs, in fraud of plaintiffs, a decree granting the prayer of the bill and setting aside the transfer of the certificate, held erroneous for want of sufficient allegations to sustain the decree, on the authority of Iles v. Heidenreich, No. 21,708, 201 Ill. App. 619.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Interpleader, § 18 —when decree on cross-hill of is erroneous. On a creditor’s bill to reach a master’s certificate of sale in foreclosure proceedings, alleged to have been conveyed by a judgment debtor of plaintiffs, in fraud of plaintiffs, where the sheriff to whom money had been paid in redemption of the land from the certificate filed a cross-bill of interpleader to determine the title to the fund, a separate decree on the cross-bill granting the prayer of the cross-bill and ordering the fund paid to the clerk of court and cross complainant discharged from further liability, held erroneous for want of an order to cross defendants to interplead, on the authority of Zimmer v. Iles, No. 21,709, ante, p. 1.

3. Appeal and ebbob, § 384*—when separate decrees on hill and cross-hill of interpleader treated as made in same cause. Although where separate decrees are rendered on a bill and cross-bill, it is anomalous to combine the objections to both decrees in one writ of error, yet where the point was not raised in the trial court the decrees will be treated on review as made in the same cause.


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    Mid-City Trust & Savings Bank, Defendant in Error, v. National Surety Company, Plaintiff in Error.
    Gen. No. 21,721.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlie, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Action by the Mid-City. Trust & Savings Bank, a corporation, plaintiff, against the National Surety Company, a corporation, defendant, in the Municipal Court of Chicago, to recover on a bond whereby defendant agreed to indemnify plaintiff for any loss sustained “by reason of any act of * * * forgery” by any employee covered by the bond. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    The loss sought to be recovered was occasioned by four checks forged by an employee covered by the bond, all of which were stipulated to have been made during employment, although two were not presented and paid until later.
    Charles H. Burras, for plaintiff in error.
    No appearance for defendant in error.
    Abstract of the Decision.
    1. Stipulations, § 19

      —what is effect of. In an action on a bond whereby defendant, a surety company, agreed to indemnify plaintiff for any loss sustained “by reason of any act of * * * forgery” on the part of any employee covered by the bond, where two or four forged checks causing the loss sought to be recovered for were not presented and paid until after the employment ended, the dates of the checks are immaterial where it is stipulated that all were made during employment.
    2. Forgery, § 2*—what constitutes. In an action on a bond where defendant, a surety company, agreed to indemnify plaintiff for any loss sustained “by reason of any act of * * * forgery” on the part of any employee covered by the bond, checks made during employment but not presented and paid until after the employment ceases are forgeries within the meaning of the bond, if the checks are false writings, apparently capable of defrauding, and manifestly made with intent to defraud, and the act of uttering is unnecessary.
    3. Indemnity, § 24*—when forged checks are admissible in evidence. In an action on a bond whereby defendant, a surety company, agreed to indemnify plaintiff for any loss sustained “by reason of any act of * * * forgery” on the part of any employee covered by the bond, where the loss sought to be recovered for was caused by forged checks, two of which were not presented and paid until after the termination of the employment, such checks are rendered competent by a stipulation that they were made during employment, coupled with undeniable evidence of forgery.
    4. Indemnity, § 24*—when evidence sufficient to sustain judgment for plaintiff. In an action on a bond whereby defendant, a surety company, agreed to indemnify plaintiff for any loss sustained “by reason of any act of * . * * forgery” on the part of any employee covered by the bond, where the loss was caused by forged cheeky, evidence held sufficient to sustain a judgment for plaintiff.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


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    Johanna Rau Longhi, Appellee, v. Emilio Longhi, Appellant.
    Gen. No. 21,735.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Bill for separate maintenance by Johanna Ban Longhi, complainant, against Emilio Longhi, defendant, in the Circuit Court of Cook county. To reverse an order adjudging defendant in contempt for failing to pay temporary alimony as ordered, defendant appeals.
    It appeared that on appeal by defendant from a final decree granting the relief prayed, the Appellate Court affirmed the decree, but granted a stay of the order ,of affirmance during such time as a petition for certiorari to review the judgment of the Appellate Court might be pending in the Supreme Court. The default in question was after the affirmance by the Appellate Court.
    Jambs B. Ward, for appellant.
    John C. Mechem, for appellee; Mechem, Bangs & Harper, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Divobce, § 84 *—what is purpose of statute authorising temporary alimony. The manifest purpose of the Divorce Act, sec. 15 (J. & A. U 4230), relating to temporary alimony, and providing, inter alia, that such alimony may be granted and enforced during the pendency of an appeal or writ of error, is to enable a dependent wife to have support until she may have the benefit of a final decree in her favor, if granted.

2. Appeal and ebbob, § 710*—what is effect on alimony of stay pending certiorari to Appellate Court. Where on appeal from a final decree for separate maintenance and alimony the Appellate Court affirms the decree but stays the mandate during such time as a petition for certiorari to review such affirmance shall be pending in the Supreme Court, the appeal is, until the mandate of the Appellate Court issues, still pending, within the meaning of the Divorce Act, sec. 15 (J. & A. 1 4230), relating to temporary alimony, ajad providing, inter alia, that such alimony may be granted and enforced during the pendency of an appeal or writ of error by the husband.

3. Divobce, § 121*—when refusal to pay alimony wilful. A refusal to pay alimony is none the less wilful because defendant questions the legal effect of the order for its payment.


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    Harman Company, Appellant, v. E. H. Kastor and Aaron Bodenweiser, Appellees.
    Gen. No. 21,744.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Chables A. ¡Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Action by the Harman Company, a corporation, plaintiff, against E. H. Kastor and Aaron Bodenweiser, defendants, in the Municipal Court of Chicago, to recover on a contract, the declaration alleging that defendants guarantied the performance of a certain contract respecting the payment of notes by a corporation indebted to plaintiff. From a judgment for plaintiff, defendants appeal.
    Voss & Page, for appellant; Samuel H. Gtlbert, of counsel.
    Harris F. Williams, for appellees.
    Abstract of the Decision.
    1. Contracts, § 377

      —when extrinsic evidence inadmissible. Although, where a contract is merely ambiguous, extrinsic evidence is competent to ascertain its intent, yet where it omits an element essential to liability on the part of those sought to be charged, the omitted provisions cannot be supplied by extrinsic evidence, since the court cannot presume that parties intended to insert therein a provision other and different from that indicated by its plain language, and then give to it a construction which would be legitimate if the contract contained the supposed omitted provision.
    2. Guaranty, § 12*—how contract construed. The undertaking of a guarantor is to be construed strictly, and he is bound to the extent and in the manner and under the circumstances pointed out in his obligation, which liability cannot be extended by implication.
    3. Guaranty, § 3*—when parties signing a contract not bound as guarantors. Where corporations, one of which is indebted to the other, make a contract providing for notes to be given by the debtor to the creditor for the amount of the notes and contains certain provisions as to the payment thereof, the fact that the witness clause recites the names of two individuals described as “guarantors," and the fact that each of the persons named executes the contract, the word “guarantor" being affixed to each signature, does not operate to bind such third persons as guarantors of the performance of the contract where there is no operative clause as to them, and where they are not parties to the body of the instrument, since in order to guaranty the payment of notes effectively, a guarantor must indorse them, or execute an express contract of guaranty.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

4. Guaranty, § 3 —when party signing a contract not bound as guarantor. Where a third party merely annexes his name to a contract in the body of which he is not mentioned, and which is a complete contract between other parties signing it and mentioned in it, such third person does not thereby become a party to the efficient and operative parts of the contract, his signature in such case being only an expression of assent to the act of the parties in making the contract.


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    The People of the State of Illinois ex rel. Maude Ramler, Appellee, v. Oscar Stromberg, Appellant.
    Gen. No. 22,355.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Bastardy proceeding by the People of the State of Illinois, on the relation of Maude Bamler, against Oscar Stromberg, defendant, in the Municipal Court of Chicago. From a judgment finding that defendant was the father of the child of prosecutrix, defendant appeals.-
    William Foster Burns, for appellant; George F. Ort, of counsel.
    Maclay Hoyne, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Evidence, § 476 -—what fact not conclusive as to where weight of evidence lies. Where the evidence is conflicting, the fact that the witnesses on one side outnumber those on the other side is not conclusive of the question where the weight of evidence lies, since the weight of evidence does not depend solely on the number of witnesses.

2. Bastards, § 22*—when evidence shows illicit relations of defendant with prosecutrix. In a bastardy proceeding where defendant denied the paternity of prosecutrix’s child, the following facts appeared: Prosecutrix was an ignorant woman, unacquainted with English, and contradicted herself in her testimony, though it had the ring of truth, and detailed circumstantially her relations with defendant. There was no evidence showing a motive on her part to falsify or that she was a lewd woman or consorted with other men. Defendant relied on an alibi to prove which he called a number of witnesses greater than that testifying for prosecutrix, such witnesses being personal friends and relatives of defendant. Held, that the evidence was sufficient to show that prosecutrix and defendant had illicit relations for some months prior to conception and within a period not unusual for gestation.

3. Bastards, § 22*—when evidence not controlling as to time when child was begotten. In a bastardy proceeding where defendant denies the paternity of prosecutrix’s child, where the testimony shows that the child was born May 8th, the fact that prosecutrix menstruated several times after June of the previous year is not necessarily controlling as to the time when the child was begotten.

4. Bastards, § 22*—when finding that defendant was father of child not against weight of evidence. In a bastardy proceeding where defendant denied the paternity of prosecutrix’s child and relied on an alibi to prove which he called personal friends and relatives, a finding that defendant was the father, held not manifestly against the weight of the evidence, the weight of defendant’s evidence depending on the superior facility of the trial court for determining the credibility of the witnesses by seeing and hearing them, and observing their manner of testifying.


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    George M. Burr et al., Committee and Trustees, Appellees, v. George K. Wentworth et al., on appeal of the Fort Dearborn National Bank, Appellant.
    Gen. No. 22,669.
    (Not to he reported in full.)
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Oscab E. Heabd, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Bill in chancery by George M. Burr, John L. Stoddard and J. W. Watzek, as a committee and trustees, etc., complainants, against George W. Wentworth et al., defendants, in the Circuit Court of Cook county. From an interlocutory order appointing a receiver, defendant Fort Dearborn National Bank appeals.
    The bill combined the features of a creditor’s bill and one in aid of execution. The order was based on the verified bill and an affidavit showing why the application was made without notice. The bill alleged an unlawful conspiracy between defendant Wentworth and others to defraud creditors. The material averments relating to defendant Fort Dearborn National Bank are that it was a party to a colorable and fraudulent sale to one George K. Wentworth, Jr., son of defendant Wentworth, of property rightfully subject to the payment of complainants’ judgment, consisting in the sale to said Wentworth, Jr., under power of attorney contained in a collateral note by defendant Wentworth to defendant Fort Dearborn National Bank, of certain shares of stock and other property, real or personal, not specifically known, of which discovery is sought, and that defendant Fort Dearborn National Bank claimed some right or interest in the property 1 ‘under some pretended claim, obligation or debt of George K. Wentworth, Jr.,” in pursuance of the conspiracy.
    Adams, Crews, Bobb & Wescott, for appellant; El- _ her H. Adams and E. C. Tourje, of counsel.
    Pam & Hurd, for appellees; Max Pam, of counsel.
    Abstract of the Decision.
    1. Receivers, § 19

      —how title to property affected by appointment. The appointment of a receiver does not affect the title of any person in the property of which the 'receiver takes possession, nor will it devest any valid lien thereon acquired in good faith, hut the possession of the receiver will be subject thereto.
    2. Receivers, § 28*—what owner of property wrongfully taken by receiver may do. Where a receiver takes possession of property belonging to one other than the principal defendant, or to which such other person has a superior claim, such person is not without remedy, but may apply to the court appointing the receiver for its restoration.
    3. Receivers, § 8*—when claimant to property not prejudiced by appointment of receiver without notice. Where it affirmatively appears from a creditor’s bill that a receiver appointed under the bill does not have possession or title to any known property alleged to belong to the principal defendant and cannot acquire possession in which an appellant is alleged to claim some indefinite interest until a discovery, prayed for in the bill, is had, such appellant is • not prejudiced by an interlocutory order appointing the receiver although it had no notice of the application therefor, since if such appellant was entitled to notice, it will have a right to be heard in the proceedings for the discovery.

      4. Appeal and error, § 1203*—when effect of interlocutory order appointing receiver cannot be raised on appeal. Where a creditor’s bill alleges an illegal conspiracy between the principal defendant and others, parties to the bill, whereby colorable sales of property alleged to belong to the principal defendant were made with intent to defraud creditors, a defendant other than the principal defendant cannot, on appeal from an interlocutory order appointing a receiver, raise the point that the order is too sweeping in its effect on the rights of the principal defendant, where it appears from the bill that there can be no disturbance of possessory rights until discovery, which is prayed for, is had, since such an appeal raises only questions of possessory rights.

      See Illinois Notes Digest, Vote. XI to XV, and Cumulative Quarterly, samo topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice McDonald

text:
    Theresa E. Havill, Defendant in Error, v. Charles A. Newton, Executor, Plaintiff in Error.
    Gen. No. 21,697.
    Executobs and administrators—how executor liadle for conversion. The representative of a decedent who takes property not belonging to the estate and appropriates it as an asset thereof commits a tort for which he is liable personally, and not as executor.
    Error to the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed November 14, 1916.
    Rehearing denied November 28, 1916.
    McCulloch & McCulloch, Albert E. Icely and Walter E. Moss, for plaintiff in error; Richard S. Folsom and Emery S. Walker, of counsel.
    Timothy J. Fell, for defendant in error.
   Mr. Justice McDonald

delivered the opinion of the court.

This writ of error brings up for review a judgment entered in favor of defendant in error (plaintiff below) , who is the widow of George B. Havill, deceased, against plaintiff in error (defendant below), as executor of the estate of the said George B. Havill, for the alleged conversion of certain notes.

Said notes were made payable to the makers, and by them indorsed in blank. After their execution by the makers thereof, they were delivered to the said George B. Havill, and by Mm placed in Ms safe deposit box. Subsequently, the said George B. Havill died, following which the executor under his last will and testament (defendant herein) took possession of all papers found in his safe deposit box, including the notes hereinabove referred to; whereupon plaintiff made demand for them as her sole and separate property. Defendant refused to surrender them to the plaintiff, claiming that they belonged to the estate of the deceased, and hence this litigation.

It is contended that defendant was improperly sued as executor, and that the action should have been brought against him in his individual capacity.

The jury, by their verdict,—which is not here questioned—found that the deceased had the possession of the said notes, not as the owner thereof, but as the custodian for the plaintiff, who was the rightful owner thereof. Consequently the notes herein sued for never became a nart.of the estate of the deceased notwithstanding their appropriation as assets of the estate, by the defendant. Whenever an administrator or executor takes property not belonging to the estate of which he has charge and appropriates it as an asset thereof, he commits a tort, for which he becomes personally liable, whether sued in tort or in contract. This view is supported both by reason and the weight of authority. In 18 Cyc. 884, it is stated:

“If a personal representative takes property not belonging to the estate, he has no right to it in his representative capacity. His refusal to restore it to the rightful owner renders him individually liable, and he cannot be sued in his representative capacity for his individual tort. A personal representative is liable in his individual capacity even though the property has passed from the possession of the decedent into Ms possession, and according to a number of decisions he may under these circumstances be sued also in his representative capacity.”

In Rose v. Cash, 58 Ind. 278, where this very question arose, the court held, p. 281:

“The sixth instruction tells the jury, in effect, that, if the appellee had possession of the note and claimed it as administrator, the appellant could not maintain the suit against him in his individual capacity. This is erroneous. The appellant could not be supposed to know in what capacity the appellee claimed the note. If she was the owner of the note and was entitled to its possession, and he had the possession and unlawfully detained it from her, she could bring her action against him in his individual capacity, and he could defend it in any capacity in which he held it by right. * * * Whoever has the possession of the property to be replevied, and unlawfully detains it, is the proper person to be sued, whether he claims it as owner, agent, administrator, trustee, custodian, or in any other capacity.
“ Replevin is an action of tort. Ah administrator cannot commit a tort, as an administrator; if he commits a tort, he commits it as an individual, and is liable as an individual.”

To the same effect are: Herd v. Herd, 71 Iowa 497; Rodman v. Rodman, 54 Ind. 444, and the authorities cited in 18 Cyc. supra.

In adopting this view, we are not unmindful of the fact that there are authorities not in entire accord therewith, some of which maintain that an action of this kind may be brought against an administrator or executor in either capacity, while others restrict such right to their representative or trust capacity. Having carefully considered the conflicting authorities on this question, we are of the opinion that the rule enunciated in Rose v. Cash, supra, is the correct one, and that the defendant is liable only in his individual capacity.

If it should be said that this subjects an administrator or executor to an unusual hardship, the answer is obvious. The court having jurisdiction and control over the administration of the estate he represents would, in a proper case and upon a proper showing that the executor acted in good faith, allow him credit for whatever he had been required to pay in an honest effort to protect the interests of the estate committed to his charge.

In this view of the case it becomes unnecessary to consider the several other points raised by the defendant.

The judgment will be reversed and the cause remanded.

Reversed and remanded.'


text:
    Michael Zimmer, Sheriff, for use of Sterling B. Cramer and C. A. Mullen, Defendant in Error, v. John P. Cummings, Trustee, and Joseph T. Delfosse. Joseph T. Delfosse, Plaintiff in Error.
    Gen. No. 21,712.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Pry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Action by Michael Zimmer, sheriff of Cook county, for the use of Sterling B. Cramer and C. A. Mullen, plaintiff, against John P. Cummings, trustee, and Joseph T. Delfosse, defendants, in the Municipal Court of Chicago, to recover on a replevin bond on which defendant Joseph T. Delfosse was surety. To reverse a judgment for plaintiff, defendant Joseph. T. Delfosse prosecutes this writ of error.

      The action in which the bond sued on was given was against Anton J. Cermak, bailiff of the Municipal Court of Chicago, to recover possession of an automobile which said Cermak held by virtue of an execution and levy against defendant John P. Cummings, as the individual property of said Cummings and to satisfy a judgment against him. It was admitted that the replevin action was not determined upon the merits. A document was offered in evidence by defendant Joseph T. Delfosse, and excluded by the court, as follows:
    “Chicago, May 14,1913.
    “Received of Joseph T. Delfosse one Premier automobile, model 45, serial No. 2004, six cylinder, in trust, to be returned on or before ninety days after date.
    (signed) John P. Cummings.”
    Testimony of defendant Delfosse to a similar effect was stricken on plaintiff’s motion.
    George L. Schein and Walt A. Hansen, for plaintiff in error; George L. Schein and. Leo H. Hoffman, of counsel.
    Bryan, McCormick & Wilbur and Defrees, Buckingham & Eaton, for defendant in error; H. H. McCormick and Don Kenneth Jones, of counsel.
    Abstract of the Decision.
    Replevin, § 204

      —when surety on bond may show right of possession in plaintiff in replevin. In an action against a surety on a replevin bond, where the merits of the replevin action have not been determined in the action in which the bond was given, it is error to exclude evidence that the plaintiff in the replevin action held title to the property replevied, an automobile, as trustee for defendant, since the right to prove such fact in such case is expressly given to defendant by the Replevin Act, sec. 26 (J. & A. If 9211), and it is therefore essential that defendant be allowed to prove, by competent evidence, that plaintiff in the replevin action was entitled to the possession of the replevied property as trustee or bailee for defendant.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Chicago, Indianapolis & Louisville Railway Company, Defendant in Error, v. Monarch Lumber Company, Plaintiff in Error.
    Gen. No. 21,787.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the JKon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Action by the Chicago, Indianapolis & Louisville Railway Company, a corporation, plaintiff, against the Monarch Lumber Company, a corporation, defendant, in the Municipal Court of Chicago, to recover transportation charges and demurrage on a shipment consigned to defendant. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Plaintiff’s statement of claim alleged that the charges sued for accrued on a shipment from Cascade,. Missouri to Michigan City, Indiana, consigned to defendant, and by it ordered reconsigned to another firm at Michigan City. It was further alleged that on the refusal of the second consignee to accept the shipment, defendant ordered the shipment to.Chicago.
    Brundage, Landon & Holt, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendant in error; George A. Kelly, of counsel.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 28

      —•when objections to sufficiency of statement of claim cannot be raised on appeal. In an action in the Municipal Court of Chicago, objections to the sufficiency of plaintiff’s statement of claim not taken in the trial court cannot be raised for the first time on review, since if defendant thinks the statement insufficient, he may move for a more specific statement, and, failing to do so, impliedly admits the sufficiency of the statement.
    2. Municipal Court of Chicago, § 13*—when statement of claim sufficient by inference. In an action in the Municipal Court of Chicago by a railroad company to recover for demurrage and transportation charges accruing on a shipment consigned to defendant, where defendant objects to the sufficiency of the statement of claim on the ground that it does not expressly allege that plaintiff was the delivering carrier, statement of claim held sufficient under the Municipal Court Act, sec. 40 (J. & A. K 3352), where the fact that plaintiff was such delivering carrier is inferable from allegations that defendant ordered the shipment reconsigned to another consignee at Michigan City, Indiana, and on the refusal of such second consignee to accept, ordered the shipment to Chicago, such statute not requiring that a statement of claim set forth a cause of action with the particularity required by common-law pleading, but merely a statement of the account or nature of the demand sued on.
    3. Appeal and error, § 1470*—when admission of copy of letter not prejudicial error. It is not prejudicial error to admit in evidence the copy of a letter where the fact which the letter tended to prove is amply proved by other evidence in the record.
    4. Evidence, § 457*—when reading of testimony in another action not erroneous. It is not reversible error to permit counsel to read questions and answers from a bill of exceptions purporting to contain the testimony of the witness in another case involving the same subject-matter, and to ask witness whether he gave such testimony, where the counsel was laying a foundation for impeaching the witness, and where, although counsel was later granted permission to read such former testimony in evidence, he did not avail himself of the privilege.
    5. Carriers, § 211*—when instruction as to liability of consignee

      for demurrage and freight charges not erroneous. In an action by a railroad company to recover demurrage and transportation charges on a shipment consigned to defendant, it is not error to instruct the jury that where a consignee accepts a shipment consigned to him he then becomes liable to the carrier for the lawful transportation charges which have accrued, and that to bind defendant it is not necessary that the shipment be physically delivered to defendant, his acceptance being provable by evidence that defendant ordered the shipment delivered to another.

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

   Mr. Justice McDonald

delivered the opinion of the court.

6. Cashiers, § 211*—when evidence shows acceptance by consignee of shipment. In an action to recover transportation charges and demurrage on a shipment consigned to defendant, evidence that defendant directed plaintiff, a railroad company, to deliver the shipment to another company, and to collect its charges from such third party, and that later, on the refusal of such third party to accept the shipment, defendant directed plaintiff to forward it to defendant, held sufficient to show an acceptance of the shipment by defendant.


author: Mr. Justice McDonald Me. Justice McDonald

text:
    Hubert A. Stevens et al. Hubert A. Stevens, Appellant, v. Andrew Pearson et al. Michael W. Cagney, Appellee.
    Gen. No. 21,839.
    1. Mortgages, § 101

      —when property is no longer subject to provisions of mortgage. Although by virtue of the lien created by a mortgage or deed of trust the mortgagee or cestui que trust has the right to a foreclosure and sale of the security and an application of the proceeds to the payment of the secured debt, yet when this has been done the mortgage or trust deed has expended its force and the property is no longer subject to its provisions, without regard to whether the mortgagee or cestui que trust is the purchaser at the sale or not, since by becoming the purchaser a new relation created by the statute exists, independent of any privity of contract between purchaser and mortgagor.
    2. Mortgages, § 738*—who is entitled to rents and profits during redemption period. On foreclosure of a mortgage or deed of trust, where the mortgagors are not the owners of the equity of redemption, the owner of such equity is entitled to the rents and profits during the period of redemption, although there is a deficiency decree against the mortgagors, unless the foreclosure decree makes such owner liable for the incumbrance or the deficiency.
    3. Mortgages, § 514

      —when provision for appointment of receiver is valid. A provision in a mortgage or trust deed that pending foreclosure proceedings and during the period of redemption a receiver shall be appointed to take possession or charge of the premises and collect the income thereof is valid and enforceable regardless of the insolvency of the mortgagors.
    4. Mortgages, § 514*—when receiver may be appointed to take charge of mortgaged premises. On a bill to foreclose a trust deed containing a provision that pending a foreclosure and during the period of redemption a receiver shall be appointed to take possession or charge of the premises and collect the income, where there is a deficiency decree against the mortgagors, who are not the owners of the equity of redemption, it is within the discretion of the court to appoint such a receiver.
    On Rehearing.
    1. Pledges, § 2*—what does not constitute pledge of income from mortgaged property for payment of debt. A provision in a mortgage or trust deed that pending foreclosure and during the period of redemption a receiver shall be appointed to take possession or charge of the premises, collect the income and pay the same, less receivership expenses, to the purchaser at the foreclosure sale, cannot be construed as a pledge of the rents and profits of such property as security for the secured indebtedness.
    2. Mortgages, § 738*—when provision for payment of rents and profits during redemption is inoperative. A provision in a mortgage or trust deed that in case of foreclosure the rents and profits of the property during the period of redemption shall be paid to the person entitled to a deed under the certificate of sale, or in reduction of the redemption money, if the property is redeemed, is inoperative, because the purchaser derives his title solely under the statute.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed November 14, 1916.
    Rehearing denied and additional opinion filed November 28, 1916.
    George G. Otto, for appellant.
    Michael W. Cagney, pro se.

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

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

   Mr. Justice McDonald

delivered the opinion of the court.

The order herein sought to be reversed directed that the receiver of the rents and profits collected during the redemption period, from the premises involved in this foreclosure suit, pay to the appellee, as owner of the equity of redemption, the balance of the moneys in the receiver’s hands.

Appellant’s bill to foreclose alleged, inter alia, that Andrew Pearson and Cynthia A. Pearson, his wife, were indebted in the sum of $2,000, which indebtedness was evidenced by their promissory note secured by trust deed conveying certain real estate situate in the City of Chicago, County of Cook, and State of Illinois, which note was due and unpaid; that said property was scant security for the amount due and owing under said note and trust deed; and prayed that an account be taken and the amount due appellant be fixed and established and on failure of defendants to pay the sum found due and owing appellant, that the premises in question be sold, and a receiver appointed to take possession thereof and collect the rents, issues and profits thereof.

A receiver was appointed in accordance with the prayer of the bill, and subsequently a decree was entered, confirming the master’s report of sale and distribution, and finding that there was a balance of $552.43 due and owing to appellant over and above the proceeds of said sale, and decreed that appellant have execution against the said Andrew Pearson and Cynthia A. Pearson for said deficiency. Afterwards, order was entered by the court, approving the amended report of the receiver, and directing that the said receiver pay over within thirty days the balance of moneys in his hands to appellee, the owner of the equity of redemption in said premises.

It is contended by appellant, that the trial court erred in directing said receiver to turn over the balance of $99.13 to appellee, as owner of the equity of redemption; that said balance should have been ordered paid to the appellant, in payment of the deficiency decree rendered in his favor. In support thereof, appellant refers us to the trust deed itself, which contains the following provision:

“The grantors waive all right to the possession of, and income from said premises pending such foreclosure proceedings and until the period of redemption from any sale thereunder expires, and agree that a receiver shall be appointed to take possession or charge of said premises, and collect such income, and the same, less receivership expenses, pay to the person entitled to a deed under the certificate of sale or in reduction of the redemption money if said premises be redeemed.”

This very provision was contained in the trust deed foreclosed in Schaeppi v. Bartholomae, 217 Ill. 105, wherein the court held, p. 112:

“By virtue of the lien created the mortgagee or cestui que trust had the right to have the security foreclosed and the property sold and the proceeds applied in payment of the secured debt. But when this has been done and the lien enforced by a sale of the property and the proceeds applied, the mortgage or trust deed has expended its force and the property is no longer subject to its provisions, (citing cases) Nor does it in any way affect the result that the holder of the secured indebtedness becomes the purchaser at the sale, whether he be the mortgagee or cestui que trust, or not. By becoming the purchaser a new relation created by the statute exists, in no wise dependent upon any privity of contract between the purchaser and mortgagor.”

Appellee was not made personally liable for the incumbrance or the deficiency by the decree. Under such circumstances, he was entitled to the rents and profits of the premises during the period of redemption. (Standish v. Musgrove, 223 Ill. 500.) We are therefore of the opinion that the court properly directed that the funds in the receiver’s hands be paid over to appellee as the owner of the equity of redemption.

Appellee complains, by way of cross error, that he should be awarded also the expenditures of the receiver, amounting in all to $23.87. This contention is based upon the claim that the receiver was not appointed according to the practice of equity. In support thereof, we are referred to Glennon v. Wilcox, 159 Ill. App. 42. That case, however, is not in point, inasmuch as the foreclosure proceedings there w;ere based upon a mechanic’s lien, while in the case at bar, it will be seen from the foregoing provision in the trust deed, that the grantors agreed that a receiver should be appointed to take possession or charge of said premises and collect the income thereof. Such a provision has been held valid, and can be enforced without regard to the insolvency of the mortgagors. (Bagley v. Illinois Trust & Savings Bank, 199 Ill. 76, and cases there cited; Oakford v. Robinson, 48 Ill. App. 270.) Therefore, in view of the provision in the trust deed for the appointment of a receiver, and because of the fact that there was a deficiency of $552.43 after the sale of the premises, we are of the opinion that the court acted within its discretion in appointing the receiver.

Finding no reversible error, the decree will be affirmed.

Affirmed.

Additional Opinion Filed on Petition fob Reheabing.

Me. Justice McDonald

delivered the opinion of the court.

Counsel in his petition for rehearing strenuously contends that if the holding of this court in its opinion filed herein is correct, then it is impossible to pledge effectively by trust deed or mortgage the rents and profits derived from mortgaged property during the period of redemption, for the payment of the debt so secured. Counsel seemingly fails to distinguish the difference between the effect of the clause in the trust deed in question (quoted in our opinion) and a. provision expressly pledging the rents and profits as security for the mortgage debt. Under no reasonable construction of the provision of the trust deed now under consideration, which provision was incorporated in the decree of the court, can it be said that said clause, either expressly or impliedly, pledges the rents and profits of the premises in question for the payment of the debt secured thereby. Such construction would do violence to the very language of the trust deed itself, for it expressly provides that the rents and profits collected during the period of redemption, less receivership expenses, shall be paid to the person entitled to a deed under the certificate of sale or in reduction of the redemption money if said premises be redeemed,-which provision has repeatedly been held inoperative, because the purchaser under the certificate of sale derives his title solely under the statute. Davis v. Dale, 150 Ill. 239; Schaeppi v. Bartholomae, 217 Ill. 105; Standish v. Musgrove, 223 Ill. 500.

Counsel also apparently fails to perceive the effect of the holding of the court in the decisions cited in our opinion, and contends that the clause in question constitutes a pledge of the rents and profits for the payment of the debt, and that the decisions cited in our opinion support such view.

It is true that the trust deed in the Schaeppi case, supra, referred to in the opinion, contained a clause identical with the one in the deed before ns, with respect to the application of the rents and profits collected during the period of redemption. And while such clause did not pledge the rents and profits for the payment of the mortgage debt, nevertheless the record in that case discloses the fact that the original makers of the notes and mortgage were also the owners of the equity of redemption and therefore personally liable for the debt, and hence the rents and profits were properly applied to satisfy the deficiency decree against them.

Counsel further, contends that the Stcmdish case, ■supra, also cited in the opinion, is not in point because there the holder of the mortgage was not a party ,to the controversy over the rents but such controversy was between the holder of the certificate of sale and the owner of the equity of redemption. That fact did not affect the principle upon which the case was decided. The rents and profits not having been expressly pledged by the trust deed, and the owner of the equity of redemption not being personally liable for the mortgage debt, the court held that under such circumstances the rents and profits accruing during the period of redemption should be paid to such owner of the equity of redemption, notwithstanding, there was a deficiency decree. And this is the identical situation here. Under such circumstances, it is immaterial whether the party claiming the rents and profits be the purchaser at the sale or the person in whose favor the deficiency decree is rendered, for under such circumstances the former is not entitled to them at all, and the latter only when they are expressly pledged for the payment of the debt.

Finally counsel contends that the case of Owsley v. Neeves, 179 Ill. App. 61, militates against the view hereinabove expressed. On the contrary, in that case the trust deed expressly conveyed the rents, issues and profits of the premises, and provided further:

“And * * * upon the filing of any bill * * * the court in which such bill is filed may at once, and without notice to the said party of the'first part, or any party claiming under said party, appoint a receiver for the benefit of the legal holders of the indebtedness secured hereby, with power to collect rents, issues and profits of the said premises during the pend-ency of such foreclosure suit and until the time to redeem the same from any sale that may be made under any decree foreclosing this trust deed shall expire.” (italics ours)

The trust deed in that case also contained the provision that the indebtedness, including attorney’s fees and other charges, should be paid out of the proceeds of the sale of said premises, “or from rents, as other costs, if not paid by said party of the first part.” The trust deed in the case at bar contains no such language. It is important to note that the court there further held that where the rents and profits are not expressly mortgaged to secure the debt, they, during the period of redemption, belong to the owner of the equity of redemption provided he is not personally liable for the mortgage debt and there is no deficiency judgment against him. And such is precisely the holding of this court in the case at bar. Therefore, the rents and profits of the said premises not having been expressly pledged in payment of the mortgage debt, and appellee not being personally liable for the mortgage indebtedness, and there being no deficiency decree against him, he is entitled to the rents and profits of the premises during the period of redemption, less receivership expenses.

We see no reason to recede from' our former position, and a rehearing will be denied.

Rehearing denied.


text:
    Sophie Spiehs, Administratrix of the Estate of Adam Spiehs, Deceased, Appellee, v. Samuel Insull, Receiver of Chicago & Oak Park Elevated Railroad Company, Appellant.
    Gen. No. 21,848.
    1. Municipal Court of Chicago, § 25

      —what was purpose of statute fixing time for filing record. The Practice Act, sec. 81 (J. & A. 1[ 8618), fixing the time within which a party desiring to prosecute an appeal or writ of error from a judgment may file a stenographic report of the trial containing all the evidence and all the rulings of the court upon all or any of the questions submitted to and ruled upon by the judge, for authentication by him, applies to any record of the court proceedings, whether in the form of a stenographic report, a bill of exceptions or a certificate of evidence, the intention of the Legislature in enacting such section being to simplify and not to complicate procedure.
    2. Municipal Court of Chicago, § 27*—when hill of exceptions may he stricken'from record. Where it appears that the bill of exceptions was not filed within the time required by law it will be stricken from the record.
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed November 14, 1916.
    Addison L. Gardner and Carroll H. Jones, for appellant.
    Francis J. Woolley, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.

Appellee (plaintiff below), moves this court to strike from the record the bill of exceptions filed in this cause and to affirm the judgment from which this appeal was taken, for the alleged reason that said bill of exceptions was not presented nor filed in the court below within the time prescribed by law.

It appears from an inspection of the record, that the judgment in question was entered on April 3, 1915, at the March term of the Superior Court. An appeal was then prayed and allowed, and an order entered by the court giving appellant (defendant below) sixty days within which to file his bill of exceptions. Subsequently, by stipulation of the parties, orders were entered from time to time, extending the period within which to file said bill of exceptions, the final extension expiring September 15, 1915.

It is urged by plaintiff that under the provisions of section 81 of our Practice Act, ch. 110, Rev. St. of Illinois (J. & A. ¶ 8618), it was incumbent upon the defendant to present to the trial court and have filed therein his bill of exceptions, within the time fixed by the trial court during the term in whichj,he judgment was rendered, i. e., sixty days from the date of the entry of judgment, as provided by the order of court entered at that time.

That part of section 81, supra, which bears directly upon the question here under consideration, provides as follows

“If, during the progress of any trial in any civil or criminal cause, either party shall submit to the court any matter for a ruling thereon and the court shall rule adversely to the party submitting the same, such ruling shall be deemed a matter for review in any court to which the same cause may be thereafter taken upon appeal or by writ of error without formal exception thereto, and after judgment, at any time during the term of the court at which judgment was entered or within such time thereafter as shall, during such term, be fixed by the court, any party desiring to prosecute a writ of error to or appeal from any such judgment, may submit to the court a stenographic report of the trial containing the evidence and the rulings of the court upon all or any of the questions submitted to and ruled upon by the judge thereof, and he shall examine the same, and, if correct, officially certify to the correctness of such report, and the same shall thereupon be filed in said court and become a part of the record in said cause, and all matters and things contained in such stenographic report shall become as effectually a part of said record as if duly certified in a formal bill or bills of exceptions, or if, during the progress of any trial in any civil or criminal cause, either party shall allege an exception to the opinion of the court, and reduce the same to writing, it shall be the duty of the judge to allow said exception and sign the same, and the said exception shall thereupon become a part of the record of such cause. A bill of exceptions, certificate of evidence, or report of trial allowed in any cause shall be deemed sufficiently authenticated if signed by the judge of the court in which the cause was tried or by the presiding judge thereof, if more'than one judge sat at the trial of the cause, without any seal of the court or judge annexed thereto. * * * ”

All of the first part of said section preceding the reference to bills of exceptions was incorporated therein by said amendment of 1911.

In Meek v. Chicago Rys. Co., 183 Ill. App. 256, it was held that the provision of said section relative to the presentation of a stenographic report to the trial court during the term in which the judgment is rendered, or at such time as shall be fixed by the court during such term, was restricted to a stenographic report, and had no application to a bill of exceptions. Underlying this conclusion was the theory by the court that said section 81 by its provisions offered two separate and distinct methods of preserving for review the adverse rulings of the trial court; one, by way of a stenographic report, the other by bill of exceptions. Since the rendition of that decision, however, the Supreme Court of this State has had occasion to construe the same section of the Practice Act, in the case of Miller v. Anderson, 269 Ill. 608. The question there presented was, whether or not it was necessary, in a bill of exceptions, to show a formal- exception taken to the adverse ruling of the trial court, in order to preserve such ruling for review. The court, in construing the whole section, held that this provision of section 81 applied not only to a stenographic report but to a bill of exceptions and certificate of evidence as well. In reaching this conclusion the court reasoned that the manifest intention of the Legislature in enacting this provision was to simplify practice and procedure, and hence, to hold that two methods were intended to be employed in preserving questions for review,—one peculiar to a stenographic report of the trial, and another, entirely different, to a bill of exceptions—would complicate rather than simplify court procedure. By analogous reasoning, we are led to the conclusion that by said section 81, as amended, the Legislature, in designating the time within which a stenographic report of the trial must be presented'for authentication, intended that such limitation should apply to any record of the court proceedings, whether in the form of a stenographic report, a bill of exceptions or a certificate of evidence.

The bill of exceptions will therefore be stricken from the record; and no error appearing in the common-law record filed herein, the judgment will be affirmed.

Affirmed.