author: Mr. Justice Dibell

text:
    Aurora Trust & Savings Bank, Plaintiff in Error, v. M. J. Whildin, Defendant in Error.
    Gen. No. 6,404.
    1. Bills and notes, § 333

      —when accommodation maker may offset dividends from estate of bankrupt maker misapplied by payee trustee. Where the principal maker of a note became bankrupt and by agreement with' his creditors his estate was assigned to trustees, one of whom was the payee of the note, a bank, to make settlement of his debts therewith, in which agreement an accommodation maker o.f the note was dissuaded from joining by the payee after he had offered to pay the note, and, prior to his appointment as a trustee, the payee assented to the request by the accommodation maker that the payee put in the accommodation maker’s claim with the rest of the claims against the bankrupt, the accomodation maker promising to pay the payee any balance after his claim should be pro rated with the rest, and the payee did so put in the accommodation maker’s claim, but, upon settlement by the trustees, applied the pro rata share of the dividends to other unsecured debts held by the payee against the bankrupt, held that the accommodation maker would be entitled to have such pro rata dividend allowed him in defense to an action by the payee to recover on the note, and the payee should have applied to equity for any marshaling of securities to which he may have been entitled in equity.
    2. Pleading, § 109*—right to both notice of special matter of defense and to special plea. A defendant is not entitled to notice of a special matter of defense under the general issue and also to a special plea.
    3. Appeal and ebbob, § 425*^-how question whether defendant is entitled to notice of special matter of defense and special plea may be raised. To raise the question whether a defendant is entitled to notice of a special matter of defense filed with the general issue and also to a special plea, there must either be an application to the trial court to require him to elect under which he will proceed or a motion by plaintiff to strike one or the other from the files.
    4. Appeal and ebbob, § 1035*—when error is waived. A point of error not assigned is waived.
    Error to the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 16, 1917.

      Charles H. Darling, for plaintiff in error.
    Mighell, Gunsul & Allen, for defendant in error.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On January 8, 1916, the Aurora Trust & Savings Bank recovered a judgment by confession against M. J. Whildin for $1,432 in the City; Court of Aurora upon a judgment note for the principal sum of $1,300, with interest at 6 per cent, per annum, dated January 23, 1911, signed by Francis H. James and M. J. Whildin, in which “I, we or either of us” made the promise and on which note there were various indorsements of interest paid. Thereafter, on motion of defendant, the judgment was opened with leave to plead and he filed a plea of the general issue, with notice of special matter in defense. Thereafter, as it appeared that defendant only claimed a defense as to $450, it was ordered that the sheriff collect $982 from defendant on the execution already issued. The cause was tried by a jury, and before the end of the trial defendant filed by leave of court over the objection of plaintiff a plea of payment. Plaintiff filed a replication and issue was joined thereon. No instructions were requested by either party and none was given, except as to forms of verdict. The jury assessed plaintiff’s damages at $104.65. Plaintiff moved for a new trial and it was denied and plaintiff has sued out this writ of error to review the judgment on said verdict. If defendant was entitled to the credit which he claims, the verdict and judgment are correct. If he was not entitled to the credit which he claims, then the verdict and judgment are erroneous.

Whildin was accommodation maker on said note and Francis H. James was the maker. James was a grocer at Big Bock, and Whildin was then in the machinery and hardware business at the same place. In March, 1913, F. M. Price recovered a large judgment against James and closed his store. Thereafter a compromise was effected between James and his creditors and reduced to writing, by which James assigned to said bank and Olney Allen, of Aurora, all his real and personal property, credits and effects, including his interest in real estate left by his deceased father, and the trustees were to convert said property into money and pay the expenses (the trustees acting without compensation) and were to pay James $400 in cash for his exemptions, and $50 to the attorney for James, and were to divide the residue pro rata among the creditors who entered into the agreement. The claims of the creditors were to be put in under oath and the trustees were to pass upon their validity. It was therein provided that that contract should not prejudice or affect the rights or remedies of the creditors against any surety and should not prejudice or affect any security which any creditor had for his debt. The creditors agreed to accept this contract in satisfaction of their claims against James and to release him. Whildin was not a party to this contract. The trustees converted the property into money and paid to the creditors dividends amounting to 37.96 per cent.

After James failed and before this composition agreement was entered into, Whildin offered to Smith, the president of plaintiff, to pay this note. If he had done so and had signed this agreement, as substantially all the creditors did, he would have received these dividends. The bank dissuaded him from doing so. Later, but before the composition agreement was made, Whildin had another interview with Smith in which defendant said to Smith: “Now, you have my note here, and you live here in Aurora, you understand business better than I do. You put my claim right in with the claims you hold, to the trustees, when this matter-comes up, and after payment is made upon my note pro rata with the rest, whatever you are short to make up the amount of the note, I will pay you.” Smith assented to this. The bank held four notes against James, the note here in suit and one other executed by a surety, and' two others for which it had no security. The bank received from the trustees these dividends. It did not apply it pro rata on the note on which Whildin was security, but applied it to pay in full its two unsecured notes and then the rest on the two secured notes pro rata. As no instructions were asked, no ruling was asked from the court on any question of law involved, except by the motion for a new trial, upon which no points were filed. The jury allowed to Whildin the application of his pro rata share of the entire sum received by the bank , from the trustees.

Under the circumstances we have above stated, Whildin lost his opportunity to pay the note and present it as a claim and receive his pro rata share of the dividends on the entire note. He was lulled into security by Smith’s conversations with him. Under these circumstances we are of opinion that the bank was bound to apply on this note its pro rata share of the entire dividend received by the bank and that in this suit it must be treated as so applied. We conclude that when that dividend was paid to the bank, it is to be treated as to Whildin as being a payment upon the note immediately upon its receipt. The bank under these circumstances could not defeat this application by it being determined, as it was by its officers thereafter, that they would first pay therefrom two other debts. If plaintiff thought that it was entitled to some marshaling of securities in equity, under the principles laid down in State Bank of Rock Island v. Bryan, 186 Ill. App. 207, and 268 Ill. 151, it should have applied to equity for that relief. On the cross-examination of Whildin it was stated that he holds a note signed by the mother of James to secure him for his liability on this note. No pleading or motion or instruction raised any question of law in this case based on that fact. It was not shown.that that security is of any value. If plaintiff concluded that it had some equitable right growing out of the existence of that collateral note, which could not be enforced in this action at law, it should have applied to equity for that relief.

Plaintiff claims that the court should not have permitted the special plea to be filed or that defendant should be held to have waived the notice filed with the general issue. It is laid down in the authorities that a defendant is not entitled to notice of special matter of defense and also to a special plea. But in order to raise this question, there must either be an application to the court to require the defendant to elect under which he will proceed or a motion by plaintiff to strike either the one or the other from the files. Benjamin v. McConnell, 9 Ill. (4 Gilm.) 536; Gilmore v. Nowland, 26 Ill. 201; Harris v. Pearce, 5 Ill. App. 622. In Wyatt v. Dufrene, 106 Ill. App. 214, plaintiff had filed the general issue and notice of special matter and numerous special pleas. We held that by filing special pleas defendant abandoned the notice. The opinion does not show whether plaintiff raised the question by motion to compel an election or to strike the notice from the files. If the language there used can be held .to mean that the defendant waived his notice by filing special pleas without the question being first raised in the trial court, it should be modified. In the only case where that case has since been cited on that point, it was held that giving evidence in support of the plea was a waiver of the notice. In the present case, if the plea of payment meant payment by defendant, as insisted by plaintiff, then there was no evidence introduced under that plea, and it performed no office in the case. If it meant payment for defendant, then the notice and the plea refer to the same transaction and it is immaterial which is allowed to stand. Again, this point is not assigned -for error and is therefore waived. It is assigned that the court erred in permitting the special plea to be filed, but the special reasons why it is claimed that this was error are set out in the assignment, and the existence of the notice with the general issue is not one of those reasons, and there is no general assignment that the court erred in permitting the plea to be filed. We conclude it should not have been filed, but the plaintiff was not harmed thereby. The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. George P. Powers, Plaintiff in Error.
    Gen. No. 6,407.
    1. Criminal law, § 103

      —when special pleas are properly stricken from files. Special pleas not dilatory filed with general issue in a criminal case are unnecessary and are properly stricken from the files.
    2. Criminal law, § 496*—how question whether evidence is same as on former appeal may he determined. The Appellate Court to determine whether the evidence in a criminal case before it is the same in the present record as in the record when the same case was formerly before it may properly examine both the opinion and the former record remaining in the Appellate Court.
    3. Criminal law, § 496*—when decision on former appeal is not binding. In a criminal prosecution for the sale of intoxicating liquors in anti-saloon territory and for keeping a place which was a nuisance in violation of the Dramshop Act (J. & A. If 4637 et seq.), held that the record in the case contained new evidence not in the case when it was formerly before the court, so as not to render the decision on the former appeal binding.

      4. Intoxicating liquors, § 1$l

      ^when evidence shows that defendant was Keeper of place where liquors were sold. Evidence held to warrant a finding that defendant was the real keeper of the place and that liquors were sold there during the time covered by the information, in a prosecution under the Dramshop Act (J. & A. H 4637 et seq.) for the sale of liquor in anti-saloon territory.
    5. Intoxicating liquors, § 112*—what is effect of acquittal under some counts of information. The acquittal of a defendant in a criminal case under several counts of an information for sales of liquor in anti-saloon territory in former trials, held no bar to a conviction under another count for keeping a room where intoxicating liquor was sold.
    6. Criminal law, § 227*—when refusal to allow reopening of case for introduction of testimony is proper. In a prosecution for the sale of intoxicating liquor in anti-saloon territory, and for keeping a place which was a nuisance, the refusal of the court to reopen the case and permit defendant to explain why he gave his wife a deed to the premises to secure her, instead of a mortgage, after he had already testified fully in chief and on cross-examination and recall giving his explanations, was not erroneous.
    7. Intoxicating liquors, § 158*—when instruction in criminal prosecution is proper. An instruction in the language of the Dram-shop Act, in a prosecution for the illegal sale of intoxicating liquor in anti-saloon territory and for keeping a place which is a nuisance under such act, is not erroneous.
    Error to the County Court of Boone county; the Hon. William C. De Wolf, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 16, 1917.
    William L. Pierce and Alexander J. Strom, for plaintiff in error.
    F. A. Oakley, for defendant in error.

      See Illinois Notes Digest, Vole. 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 Dibell

delivered the opinion of the court.

An information containing eight counts was filed against George P. Powers in the County Court of Boone county and he was tried and convicted under the first and eighth counts, and we reversed that judgment and remanded the canse in People v. Powers, 200 Ill. App. 536, where the facts as they then appeared to the court were stated. After the cause was reinstated in the trial court, the State’s Attorney, by leave of court, filed an amended first count, and the cause*, was tried upon the amended first count and the eighth count, and defendant was acquitted under the amended first count and convicted under the eighth count. The latter was a nuisance count and there was a judgment of fine and imprisonment and abatement of the nuisance until the statutory bond should be given. Defendant seeks a review of that judgment.

Defendant pleaded the general issue and certain special pleas. The special pleas were stricken from the files. They were not dilatory pleas and they were therefore unnecessary under Hankins v. People, 106 Ill. 628; and People v. Brady, 272 Ill. 401.

Our former reversal was based on the ground that the evidence was insufficient to justify a verdict that Powers was the keeper of the place, 423 South State street in the City of Belvidere, specified in the eighth count. The main contention of defendant here now is that the evidence at this trial on that subject is substantially the same as on the former trial and therefore we must adhere to our former decision and reverse the judgment. To show us what the evidence was in the former trial, defendant has filed copies of the abstract in the former case. The People argue that as there was no proof made in the court below what the evidence was in the former trial and as the record of the court below in this case does not show what that former evidence was, this abstract is not subject to our inspection and we cannot judicially know what that evidence was. There are many cases in the Supreme and Appellate Courts where it is held that if the evidence in the record brought to a court of review upon the second appeal or writ of error is the same as at the first review of the ease, the parties are bound by the conclusion of the court on the facts on the first review. Most of these cases, however, do not disclose the means by which the reviewing court ascertained whether the evidence was substantially the same in both cases. Some of the cases show that the reviewing court resorted to its former opinion to ascertain the facts.- Such appears to have been the case in Taylor v. Frew, 113 Ill. 358; In re Estate of Maher, 210 Ill. 160, on page 165, and Hemenway v. Thompson, 227 Ill. 146. Other cases indicate that the reviewing court resorted to the record before it on the former review. Among these are Rising v. Carr, 70 Ill. 596; Smyth v. Neff, 123 Ill. 310; Chicago & A. R. Co. v. Kelly, 182 Ill. 267, and People v. Carr, 265 Ill. 220. In the latter case the question was whether the County Court in that case could take judicial notice of its records in certain other cases previously before it. It was held that although the former cases were between the same parties and involved the same subject-matter, yet they were not the same proceeding and hence the County Court, could not take notice of its own records in those cases. The court there said: “A court wUl take judicial notice of its own records and thus dispense with proof identifying such records, but it will not take judicial notice of the contents of any of its records except the one in the proceeding before it.” The implication is that if it had been the same proceeding the County Court should have taken judicial notice of its former record. The same question has been before the Appellate Courts. In World’s Columbian Exposition Co. v. Lehigh, 94 Ill. App. 433, the court held: “Both appeals being between the same parties and in the same suit, we can take judicial notice of the record in the former appeal,, and if the fáets on the former trial were the same as on the second trial, which resulted in the judgment from which the present appeal is taken, we are concluded by the adjudication of the court in the former appeal.” The court evidently examined its former record in Middeke v. Balder, 98 Ill. App. 525, and Illinois Cent. R. Co. v. Seitz, 111 Ill. App. 242. We therefore conclude that to determine whether the evidence is the same in the present.record as in the record when the same case was formerly before us, we may properly examine both our opinions and the former record remaining in this court. If so, we may examine the former abstract as a convenient method of getting at the contents of the former record.

In our view there is new and important evidence in this record. The City of Belvidere became anti-saloon territory on May 7, 1914. The information in this case was filed on October 28, 1915. One item of new evidence in the present record is proof that in July, 1914, Powers took out a federal license as a retail liquor dealer for the year beginning July 1, 1914, and expiring June 30, 1915, thus covering a large portion of the time to which the other proof relates. It did not name No. 423 South State street, or give any other street number, but gave the place of business as Belvidere, Illinois. Defendant gave his reason for procuring that license, which, of course, could not be directly contradicted, and argues here that that reason must be accepted as the true one. He stated that he had in his cellar at home some cider which he was afraid would get hard and he wanted to sell it, and he did not know but what he might go into the cider business further, and so to protect himself against the federal statute he procured this license as a retail liquor dealer, and hung it up in his cellar. On cross-examination he stated that he had half a dozen barrels of cider in his cellar, and then that he had five. The cross-examiner then assumed in a question that he had ten barrels of cider and he did not contradict that. He testified that he afterwards sold' part of it and that he did not sell it at retail nor in his cellar. He was entirely unable to tell to whom he sold it or how he sold it. «The jury might very well have concluded either that he had no such cider in his cellar or that it was in fact sold at 423 South State street. At the front door at that place was the sign, “Q-. P. Powers, Buffet,” and his name also appeared on the side door of that building on another street. If the federal government had accused Clark of selling intoxicating liquors at that place without a government license, this license held by Powers could very easily have been used to protect sales at 423 South State street. Moreover, he paid $25 for that license, and the jury might well doubt whether defendant would pay that sum to protect himself in the sale of some portion of five barrels of cider.

In the former record Powers was cross-examined as to a conversation with the mayor, but the mayor was not a witness. At the last trial the mayor was a witness and testified to two conversations with Powers, one about April 30, 1915, and the other in the following June. The tenor of the conversations was that Powers sought to have the mayor and police not interfere with his keeping the place at 423 South State street, and in those conversations Powers spoke of the. property and the business carried on there and the receipts he hoped to derive from it as being his own. There was also additional evidence of ten barrels containing bottled beer having’ been shipped to Belvidere from a brewing company in another town and having been delivered in the rear of this lot about three weeks before this information was filed. On cross-examination defendant was a much less valuable witness in his own behalf than on the former trial, and he made several admissions that he did not make then. Again, he testified as at the former trial that he deeded this property to his wife as security for $6,000, which she then paid him. On cross-examination at this trial he testified that his wife obtained that money from the Farmers’ Bank in Belvidere. A little later he took the stand and said' that he was mistaken and that she got the money from Chicago. The jury might well believe that after he had given that first testimony and left the stand, some one ascertained either that his wife had no such account at that bank or that she had drawn out no such sum. Certainly it tended to depreciate the value of his testimony.

While the State was not trying to convict under as many counts and did not have as much evidence of sales as at the former trial, yet there was some new evidence on that subject, and there was evidence growing out of defendant’s cross-examination showing sales at that place of that which other witnesses identified as intoxicating or malt liquor. We do not doubt that the jury were warranted in finding that such liquors were sold at that place during the time covered by the information, and we conclude that under the additional testimony and the matters developed in the cross-examination of Powers, the jury were warranted in finding that he was the real keeper of that place, notwithstanding Clark, his former barkeeper, professed to be the. proprietor.

Defendant contends that as he was acquitted at the first and second trials of the sales specified in the first seven counts, he could not be convicted under the eighth count. That count charged that Powers unlawfully kept a room in a building at 423 South State street, Belvidere, which room was a place of public resort where intoxicating liquors were then and there sold in violation of the statute. We are of opinion that this conviction can be sustained, notwithstanding his acquittal under the first seven counts.

Defendant contends that the court erred in «refusing to permit him to explain why he gave his wife a deed of this property to secure her, instead of a mortgage. He had testified fully in chief giving his explanations and had been cross-examined upon them, and was recalled; and also the question only asked for the condition of Ms mind on the subject and to have him tell what reasons influenced him. We do not think the court erred in not reopening* that subject. The State’s Attorney had a right to argue that the real reason why he made this conveyance was to evade responsibility as a retail liquor dealer in view of his previous conviction for violation of the anti-saloon law, which was shown under the amended first count, but otherwise the transfer was of little importance in this case. It was only as security for- a loan, and therefore Powers continued to own the property, and if he was the real keeper the fact that he executed in Ms wife’s name a lease to Clark would not change the situation.

The first instruction given for the People was in the language of the statute and not erroneous. We are of opimon that the other instruction complained of is not subject to the criticism made upon it. The judgment is therefore affirmed.

Affirmed.


text:
    Harry H. Tobias, Plaintiff in Error, v. Alma C. Tobias, Defendant in Error.
    Gen. No. 6,411.
    1. Domicile, § 6

      —when new residence is acquired. The place of residence of a party is a matter of intention, and when a residence has once been obtained it is not lost by any temporary departure from that place, which remains the residence of the party until he or she has acquired another residence, which does not mean merely a temporary abode.
    2. Domicile, § 16a*—when evidence shows residence at particular place. Evidence held sufficient to show that defendant did not in law or fact acquire or intend to acquire a permanent residence elsewhere than a certain city, where she and plaintiff were residing when they separated, and that she was a resident there at the time she filed her bill for divorce in question.
    3. Appeal and eerob, § 1270

      —when presumed that evidence was received to support finding as to jurisdiction. The findings pi a court of general jurisdiction as to jurisdictional facts necessary to constitute service are conclusive against collateral attack unless .irreconcilable with facts otherwise disclosed by the record, and in aid of such finding it will be presumed on appeal that evidence was heard to support the finding where it is competent to receive evidence for that purpose.
    4. Divorce, § 77*—when finding in decree shows service of summons hy copy of hill and notice. The service of summons by copy of the bill and notice are conclusively shown by a finding in decree of divorce to that effect, notwithstanding the affidavit of service is defective, where the certificate of evidence contains no proof on the question of service.
    5. Equity, § 122*—how proof of service may he made. While' section 14 of the Chancery Act (J. & A. j[ 894), relating to service on nonresident Of a copy of the bill, permits such service to be proved by affidavit, it also provides that service may be proved “to the satisfaction of the court,” and consequently proof otherwise than by affidavit may be made.
    6. Divorce, § 22*—what is a sufficient allegation of residence of complainant. A description in a bill for divorce.of complainant as “Your oratrix, Alma C. Tobias, of Peoria, in the County of Peoria, State of Illinois,” is a sufficient allegation of residence' in Peoria county.
    7. Equity, § 479*—when decree not granted. Where a bill filed to set aside a decree of divorce contains no allegation of any lack of sufficient service in the divorce suit, complainant is not entitled to a decree upon a ground not alleged in the bill.
    8. Equity—when will set aside decree. Courts of equity will not set aside a decree Upon the ground that it was obtained by false evidence, but only for fraud, which gives a court colorable jurisdiction over the defense presented.
    9. Divorce, § 134*—when evidence shows intention of husband not to live with wife. Evidence held sufficient to warrant the finding that complainant, in a suit to set aside a decree of divorce procured by his wife against him, did not intend at the time he left his wife to live with her again, but intended to roam about the world at will, free from any responsibility to his wife and child.

      Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 16, 1917.
    Clyde Capron, for plaintiff in error.
    Weil & Bartley and Sheen & Galbraith, for defendant in error.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

On December 1, 1905, Mrs. Alma.C. Tobias filed in the Peoria Circuit Court a bill for divorce against her husband, Harry H. Tobias, and had service by copy of bill and copy of. summons out of the State. Defendant was defaulted, and on or about March 20, 1906, she had a decree for divorce, from which no appeal or writ of error was ever prosecuted. On September 2, 1908, Tobias began this suit by filing a bill in said Circuit Court against Mrs. Tobias, in which he sought to vacate said decree of divorce. It was not a bill of review, for it did not set out any part of the record, but it alleged lack of jurisdiction in the court for reasons hereinafter stated, and that the decree was obtained by false testimony. The cause was referred to a master, who took evidence and made a report adverse to Mrs. Tobias. Her objections thereto were sustained and there was a decree dismissing the bill. The cause was removed to this court by writ of error. Mrs. Tobias filed certain pleas to said writ of error, to which we sustained a demurrer, and held that we were thereupon required to reverse the decree regardless of the merits. The case is reported as Tobias v. Tobias, 193 Ill. App. 95. The cause was reinstated in the court below and referred to another master to report the proofs with bis conclusions, and he took proofs and made a report favorable to Mrs. Tobias. Exceptions thereto were overruled and there was a decree dismissing the bill for want of equity. Tobias prosecutes this writ of error to reverse that decree.. In this court he presents three reasons why hé was entitled to the relief he sought, namely: (1) That Mrs. Tobias did not reside in Peoria County when she filed her bill for divorce and that therefore the Peoria Circuit Court had no jurisdiction; (2) that there was on file in that case no sufficient proof of service and therefore that court had no jurisdiction; and (3) that the decree was obtained by false evidence.

Section 5 of the Divorce Act (J. & A. 4220) requires that the proceedings shall be had in the county where the complainant resides. ■ Prior to November, 1903, Tobias and his wife had lived in the City" of Peoria. In that month they departed therefrom. Mrs. Tobias went to the home of her parents in Mason county, Illinois. Tobias claims that she thereby lost her residence in Peoria county. The place of residence is a matter of intention, and when a residence has once been obtained it is not lost by any temporary departure from that place, and it remains the residence of the party until he or she has acquired another residence, which does not mean merely a temporary abode. This is held in many cases, and among them Smith v. People, 44 Ill. 16; Hayes v. Hayes, 74 Ill. 312; Cooper v. Beers, 143 Ill. 25; Imhoff v. Lipe, 162 Ill. 282; Hill v. Hill, 166 Ill. 54; Palmer v. Riddle, 197 Ill. 45; Widmayer v. Davis, 231 Ill. 42; Welsh v. Shumway, 232 Ill. 54; Holt v. Hendee, 248 Ill. 288: In Hayes v. Hayes, supra, where the question was whether one Dr. Hayes was a resident .of Bock Island, notwithstanding he had gone to Iowa and lived in various places for long periods of time and had voted there at a presidential election, the court said: “To effect a change of domicile there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must he a new domicile acquired by actual residence within another jurisdiction, coupled with the intention of making the last acquired residence a permanent home.” In Holt v. Hendee, supra, the court said: “In order to bring about a change of residence it is necessary that there be not only an intention to change the residence, but the change must actually be made by abandoning the old and permanently locating in the new place of residence.” Practically the same thing was decided in several other of the cases above cited. At the time when the parties left their home in the City of Peoria it was agreed that Tobias should go to Oklahoma and enter into possession of a farm there owned by his father, and Mrs. Tobias should go to the home of her parents near Forest City, Mason county, and that in the spring she should go to her husband in Oklahoma. She testified that she was very much attached to her home in Peoria and was very unwilling to leave it, and that she had no intention of making her permanent home in .Mason county. For reasons hereinafter stated she did not go to Oklahoma. She was a music teacher, was frequently in Peoria thereafter, and went into the business of selling pianos for a company located in Peoria. If her testimony is true, she never intended to take up her residence in Mason county. Before the divorce suit was begun she consulted Peoria lawyers on the subject and told them these facts and told them that she intended doing business in Peoria as soon as she could, and they advised her that under the circumstances narrated she had not acquired a residence in Mason county and had not lost her residence in Peoria county, and thereupon they prepared and filed a bill in Peoria county. Tobias called several persons who lived near them in the City of Peoria and who knew of the removal, and they testified that from the conversations with Mr. and Mrs. Tobias they understood that she was removing to Mason county only temporarily and expected to go to Oklahoma in the following spring. Two neighbors testified that Mrs. Tobias told them that while she was telling her husband that she would go to Oklahoma in the spring, in fact her people would not permit her to go and she did not expect to go. ■ This testimony Mrs. Tobias denied. Before they left Peoria they sold a little of their furniture and part of it was shipped to her at Forest City, and part of it was- shipped to her husband’s parents in Washington, Tazewell county. Certain witnesses for Tobias testified that at times when they saw Mrs. Tobias in. Peoria and she was going back to Mason county, she said she was going home. Mrs. Tobias testified that she had always called the residence of her parents in Mason county “home,” and that while living with her"husband, whenever she went down to Forest City to visit her parents she had told people she was going home. We are of opinion that under the evidence and the law as held in this State Mrs. Tobias did not acquire and did not intend to acquire a. permanent residence in Mason county, and that she never lost her residence in Peoria county, and that the bill was properly filed there.

The proof filed in the divorce case of service of copy of bill and notice of suit was by affidavit and was defective in two respects. Defendant contends that therefore the court did not acquire jurisdiction to render the decree of divorce. While the statute, section 14 of the Chancery Act (J. & A. 894), permits such service to be proved by affidavit, yet it elsewhere provides that such service may be proved “to the satisfaction of the court.” This therefore permitted other proof than an affidavit. The decree of divorce fully found service by a copy of the bill and a copy of the summons and by a reading of each t,o Tobias. The findings of a court of general jurisdiction, as to jurisdictional facts necessary to constitute service, are conclusive against collateral attack unless irreconcilable with facts otherwise disclosed by the record, and in aid of such finding it will be presumed that evidence was heard to support the finding where, as here, it is competent to receive evidence for that purpose. Figge v. Rowlen, 185 Ill. 234. There is a certificate of evidence on file in the divorce case and it does not contain such proof, but it only purports to be a certificate of the evidence offered by Mrs. Tobias to maintain the issues on her part, and it does not purport to contain any proof heard upon the question of service. It is therefore conclusively found that service was had by copy of bill and notice. It has been argued that the bill did not allege that Mrs. Tobias resided in Peoria county, and that the decree did not so' find. The bill described complainant therein as “Your oratrix, Alma C. Tobias, of Peoria, in the County of Peoria, State of Illinois.” This was a sufficient allegation of residence in Peoria county. Parker v. Parker, 61 Ill. 369; Way v. Way, 64 Ill. 406; Sommers v. Sommers, 16 Ill. App. 77. The decree found that all the material facts alleged in the bill of complaint are true, and this is a sufficient finding that the allegation of residence is established. Hill v. Hill, supra. Moreover, it is entirely clear from the testimony of Tobias that he was so served with a copy of the bill and of the summons. He claims he was served at two different times with copies of two different bills, one of which he asserts was longer than the bill in this divorce case. He testifies that after he received the copy of the bill he consulted a lawyer where he then was and stated to him the facts from his standpoint and was advised that if he had stated the facts correctly his wife could not get a divorce, and he thereupon decided that he would pay no further attention to the case. But again, the bill in this case contains no allegation of any lack of sufficient service in the divorce case. Since the decree was not attacked by this bill on that ground at all, Tobias could not have a decree in the present case on that ground not alleged in his bill. .

The bill alleged that the evidence upon which the divorce was obtained was false. Courts of equity will not set aside a decree upon the ground that it was obtained by false evidence, but only for fraud which gives a' court colorable jurisdiction over the defensé presented. Evans v. Woodsworth, 213 Ill. 404, and cases there cited; Graves v. Graves (Iowa), 10 L. R. A. (N. S.) 216; and Bleakley v. Barclay (Kan.), page 230 of the same volume, and a note in said volume extending from page 230 to page 243. As it appears here that the divorce suit was brought in the proper county and that there was due and proper service, we are of the opinion that the court below had no power in this proceeding to vacate the decree of divorce on. the ground that the evidence by which it was obtained was false. We, however, deem it proper to consider the evidence on that subject. The charge in the bill for divorce was desertion. The main facts favorable to Mrs. Tobias are as follows: Before she was married she was a music teacher and had saved $500. One week after the marriage her husband and she settled in Peoria and lived there 2 years, and at the time they left Peoria had a daughter 4 months old. While they lived in Peoria, Tobias did not work steadily at anything, except once for 4 months. He genérally had several different jobs every week. He earned but little. He did not support his family. They were supported, partly by her parents and partly by his, and sometimes by one of her brothers. Tobias sometimes went away and was absent for weeks and left his wife without sufficient fuel and provisions in the house. In August, 1903, his father had bought a farm in Oklahoma and his mother had bought another farm adjoining it, and the father offered to put his son, Harry, on Ms farm, and let him have the use of it for the payment of taxes, and the mother offered to give Harry her farm. Thereupon Tobias, who Was of a roving nature, proposed that he and his wife remove at once to Oklahoma. Her brother went to Oklahoma and came back and reported that it was not a fit place for a woman to live; that there were hardly any women thereabouts except Indians and half breeds; that the water was impregnated with alkali and very harmful, and the soil very unproductive. The parents of Mrs. Tobias thereupon sent word to her that • she ought not to go there at .that time with this little child, and it was arranged in November that Tobias should go to Oklahoma and get located and that Mrs. Tobias would go to him in the spring. She then went to her parents and he never thereafter furnished her anything for her support. He went to St. Louis, worked. there a week or two, and then went to Louisiana and worked there for a while, and then to Little Bock, and worked there a while. Each time he claimed he was getting large wages, but he only stayed in each place a short time. From one of these places he wrote his wife that he thought some of taking a trip through the south. At some, time during his peregrinations he was in Dallas, Texas. He reached Oklahoma on July 4, 1904. His excuse for not going directly from Peoria to Oklahoma as planned was that after he reached Louisiana he was informed that the farm was in the possession of a tenant whose lease expired July 1, 1904. George Tobias, an uncle of Harry, testified that he met Harry in Oklahoma after he reached there, and he thought in 1904, and Harry told him that he did not intend to live with his wife any more, and that he was not going to live with her, and that he contemplated getting a divorce. " Tobias claims that he wrote for his wife to come, but upon examining his letters to his wife, offered in evidence, he was unable to point out any such request. He then insisted that he had written other letters not produced, but he finally- testified that what he meant was that he had written to his mother in Tazewell county, Illinois, asking her to ask his wife to come on. There was no proof that his mother ever made any such request of Mrs. Tobias. In July, 1905, he brought suit against his wife in Oklahoma for divorce. He testified that he dismissed the bill the next day after he began the suit, but other evidence shows that the suit was pending long enough so that his wife received notice thereof and employed lawyers in Peoria and in Oklahoma and filed an answer and a cross-bill and he then dismissed his bill and she dismissed her cross-bill. At one time while he was in Louisiana or Arkansas, he wrote his wife that he could make a great deal of money by raising palmettoes and that he thought of going into that business. When he was contemplating a divorce he wrote requesting $15 from his wife towards the expenses thereof. When she did not respond he wrote demanding $45, and afterwards wrote that it would cost her $75, apparently meaning • that he-intended to get that amount from her. He once wrote demanding $20 from her. He never sent her any money, except that long after this divorce was obtained by Mrs. Tobias he sent her $50, which she immediately returned to him. His evidence of what he actually received from the farm in Oklahoma while he was upon it shows that it would have been entirely insufficient to support his wife and child. While they lived in Peoria and at a time when his wife was unable to go about because of her approaching maternity, he spent many evenings away from home and claimed that he was writing insurance. His wife disbelieved this and soon after her child was born she followed him one night and found him in the home of a certain woman whose name we omit. After he was in Oklahoma the proof indicates that this woman corresponded with him and was very anxious to know if he had gotten his divorce, and the father of Harry was investigating to learn her antecedents and character and whether she would be likely to get along with Harry as his wife, and it is evident that the father expected that Harry would get a divorce from his wife and marry this woman. It is made to appear by the evidence that the parents of Harry Tobias washed Mrs. Tobias to get a divorce from their son and sympathized with her in her position. Harry wrote a letter to the solicitors of Mrs. Tobias in which he indicated he would fight any application for a divorce by her based on the grounds of cruelty or any other untruth, but that she could obtain a divorce on the grounds of desertion. We think the chancellor might well conclude from this evidence that when Tobias left Peoria he did not intend to live with his wife again, but intended to roam about the world at will, free from any responsibility to his wife and child. It is true that Tobias gave testimony differing in some respects from what is above set out, but he does not deny the fact that he did not go to Oklahoma as intended, that he never sent any money to his wife for the support of herself and child, that he never made any arrangements for her to come to Oklahoma or sent her any money for that purpose. Has letters to her were not calculated to inspire any confidence in his real intention to provide a home for her. He testified to interviews with her long after she obtained her divorce, sought by her, in which she expressed a purpose to return to him after the death of her parents. She admitted the interviews, denied that she sought them, and denied that she ever made any statement indicating any purpose or willingness to return to him. These interviews, however, have no bearing on the issues in this case.

Counsel for Mrs. Tobias present other reasons why the court below properly dismissed this bill, but our conclusions above stated are decisive of the case, and we deem it unnecessary to consider or discuss those other positions. The decree ,is affirmed.

Affirmed.

Niehaus, J., took no part.


text:
    James C. Hartley, Appellant, v. B. H. Blauvelt, Appellee.
    Gen. No. 6,419.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Trial, § 195

      —when verdict should not he directed. If there is evidencé from which if it stood alone the jury could without acting unreasonably in the eye of the law find that all the material averments of the declaration or some count thereof have been proven, the cause' should he submitted to the jury, instead of directing a verdict.
    Appeal from the Circuit Court of Stark county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 16, 1917.
    Statement of the Case.
    Action of replevin by James C. Hartley, plaintiff, against B. H. Blauvelt, defendant, for four mules. From a judgment for defendant, on a directed verdict, plaintiff appeals.
    James H. Rennick, for appellant.
    F. B. Brian, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

2. Trial, § 200*—when direction of verdict in action of replevin is improper. Plaintiffs evidence that he and a certain party had agreed that upon such party paying plaintiff a certain amount and settling certain bills against plaintiff the latter would turn over to such party four mules, that thereafter such party said he had forgotten one item and that he would only pay plaintiff a certain lesser amount, in which change plaintiff refused to acquiesce; that such party .paid, nothing to plaintiff, but took the mules from the agister upon paying the latter’s fees, and removed them to defendant’s farm and later sold two of them, and that plaintiff brought an action of replevin after demand, held to make out a case for plaintiff, if true, and the direction of a verdict for defendant upon the latter’s evidence of a different agreement was erroneous, even though the court thought the defendant had the preponderance of the evidence.


text:
    William C. Siegert, Executor, Appellee, v. Public Service Company of Northern Illinois et al., Appellants.
    Gen. No. 6,423.
    1. Torts—when rule as to proving promises by all alleged promisees does not apply. In an action of assumpsit against several, joint promises are charged against the defendants, and such promises by all must be proved, but the rule has no application to actions in tort.
    2. Pleading, § 366

      —when motion to strilce original and additional counts upon filing of amended count is properly denied. Where an amended count in negligence was filed after an original and an additional count, to each of which plea was filed and not withdrawn, a motion at the close of plaintiff’s evidence to strike the original and the additional counts from the files was properly denied, where the amended count charged the same negligence against the defendants still in the' case as in the previous counts.
    3. Negligence, § 134*—what does not constitute variance between pleading and proof in action against two defendants. Under a count charging both defendants, a city and a public utility company,) in an action to recover damages for personal injuries, with negligently maintaining a certain pipe upon a bridge, and one of them with placing it there, proof of all charges of negligence would not be necessary, but if plaintiff proved that both defendants negligently permitted the pipe to remain on the bridge it would be sufficient even if he failed to prove that one defendant placed it there.
    4. Municipal corporations—when evidence in action against city for personal injuries is prima facie sufficient to show filing of statutory notices with city cleric and city attorney. Evidence held prima facie sufficient to show that there were a city clerk and a city attorney and that copies of notice under the statute were filed in their offices, in an action against a city to recover damages for personal injuries, where the city was under the commission form of municipal government and the testimony was to the effect that service was upon the city clerk and the city attorney of defendant, whose signatures upon the copy of the notice offered were identified, and which signatures purported to be by the city clerk and the city attorney respectively.
    5. Municipal corporations, § 1084

      —when admission of evidence of gentleness of horse does not constitute variance in action for negligence. Admission of proof that plaintiff’s horse was gentle, although he did not so allege in his declaration, was not erroneous, on the ground of variance, in an action against a city and a public utility company to recover damages for personal injuries from plaintiff’s horse becoming frightened at street and interurban cars, running away, and striking an expansion joint of a gas pipe located upon a bridge.
    6. Appeal and error, § 1459*—when defendant cannot complain of- rulings on evidence. In an action for personal injuries, where there was testimony that plaintiff had a certain disease of mouth after the accident in question and that it could be attributable to his injury and there was contrary testimony on defendant’s part that such disease could not be so caused, and the court excluded the evidence that plaintiff had such a disease, defendant had nothing of which to complain in that respect.
    7. Negligence, § 242*—when instruction on proximate cause is properly refused, An instruction to the effect that the jury should find the defendant not guilty if there was any efficient, independent cause which contributed directly to the accident other than the maintenance of a certain gas pipe on a bridge charged to the defendants as the negligent cause of the accident, held properly refused, as the contributory negligence of another party does not relieve a defendant from the consequences of his negligence.
    8. Instructions, § 126*—when abstract instruction properly refused. An instruction on an abstract proposition of law which is not applied to the case is properly refused.

      9. Instructions, § 114

      —when instruction properly refused as inapplicable to the issues and as calling for speculation by jury. Instruction inviting jury to speculate as to what might have happened if a certain gas pipe, with the negligent maintenance of which on a bridge defendants were charged, had not been on the bridge, held properly refused, there being no such issue and positive proof of a guardrail which would have prevented plaintiff driving into the bridge if the pipe had not been there.
    10. Municipal corporations, § 1098*—when evidence shows negligence in allowing projecting gas pipe to be maintained on bridge. Evidence held to warrant the finding that it was negligence for defendants, a city and a public utility company, to maintain or permit the maintenance of a certain gas pipe having an expansion joint standing out 2 inches from the pipe on a long bridge much used for public travel, and on which ran a street railway track and there was also a sidewalk and a driveway, on one side of which driveway lay the pipe and on the other side ran the track.
    11. Municipal corporations, § 967*—when city bound to know danger of frightened horses running into projection on bridge. A city is bound to know that horses might be frightened by street cars approaching them on a bridge and turn away to the other side of the bridge, on which the city was maintaining a gas pipe, in such manner as might cause injury.
    12. Damages, § 110*—when not excessive. A verdict for $3,000 damages held not excessive where injuries were severe.
    Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 16, 1917.
    Girard A. Ellingson and Taylor Strawn, for appellants.
    Butters & Clark, for appellee.

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

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

On July 8, 1914, William C. Siegert, 69 years old, was driving south across the Illinois Biver bridge in the City of Ottawa, riding in a delivery wagon drawn by a single horse, when his horse became frightened, first by a street car, and soon afterwards by an interr urban car, npon said bridge, and it turned towards the east side thereof, and the east front wheel struck an expansion joint of a gas pipe located upon said bridge and the wagon was overturned and plaintiff was injured. He brought suit against the Public Service Company of Northern Illinois,, the Chicago, Ottawa & Peoria Railway Company, the Northern Hlinois Light & Traction Company, and the City of Ottawa, to recover damages for his injuries. He filed a declaration containing a single count and after-wards an additional count, and during the first trial he dismissed the railway company and the traction company, and by leave of court filed another count, which was therein styled an amended count. The general issue was filed to these counts and he had a verdict and a judgment. The defendants appealed to this court and we reversed the judgment, and remanded the cause for another trial. An abstract of our decision is contained in Siegert v. Public Service Co. of Northern Illinois, 200 Ill. App. 476. Thereafter the cause was again tried and plaintiff again had a verdict and a judgment, from which the defendants again appeal.

At the close of plaintiff’s evidence in chief, defendants moved to strike from the files' the original declaration filed August 19,1914, and the additional count filed February 6, 1915. Two reasons were assigned for said motion, viz.: (1) That said original declaration and additional count charged combined and joint negligence on the part of the four defendants therein named, and there was no evidence tending to prove such joint negligence; and (2) that by filing the amended count on February 15, 1915, plaintiff abandoned the original declaration and additional count. The court denied said motion. In an action of assumpsit against several, joint promises are charged against the defendants, and such promises by. all the defendants must be proved, but that rule has no application to actions of tort. The pleadings complained of allege that the traction company improperly and negligently ran its street car upon this bridge and thereby frightened plaintiff’s horse; that the railway company improperly and negligently drove its interurban car upon said bridge and thereby frightened said horse; that the public service company negligently placed and negligently maintained upon said bridge gas pipe of improper construction and dangerous to those traveling upon the bridge; and that the city negligently permitted such pipe to be placed upon said bridge and to remain there. There was no charge of joint negligence. The count filed during the first trial on February 15, 1915, was called on its face an amended count. Reliance is had on Maegerlein v. City of Chicago, 237 Ill. 159. There an amended count had been filed which was called an amended third count and it was held that it was an amendment of the original third count. Here, there were two earlier counts filed at different times and there was nothing to show whether the amended count was intended to be an amendment of the original count or an amendment of the additional count. The defendants had filed pleas to the original count and to the additional count. They did not withdraw those pleas. We doubt whether they can be heard to complain of the action of the court in refusing to strike a count from the files until they have first, by leave of court, withdrawn their plea thereto, but there was no error so far as the present defendants are concerned, for the same charges of negligence are made against them in the amended count as in the previous counts, and the facts charged therein against the dismissed defendants would necessarily be shown under the amended count as part of the occurrences surrounding the accident.

It is argued that there is a variance between the amended count and the proofs, because the amended count charged that the Public Service Company placed said gas pipe upon said bridge, whereas the proof shows that it was placed there by its predecessor in the operation of the gas plant. There is some evidence to show that the Public Service Company placed this pipe upon the bridge. The Public Service Company had been in control of that gas plant for about 3 years, and a witness stated that this pipe was placed upon the bridge 6 months or a year before the accident, which would be while the Public Service Company had control. The Public Service Company proved that the pipe was placed there 4 years before the accident and while another company had control, and no doubt that is correct, but it cannot be said that there is no evidence to maintain that part of plaintiff’s allegation. However, the amended count, after certain allegations against defendant, the. Public Service Company, proceeds as follows: “And the said defendant and the said City of Ottawa, carelessly, negligently, and wrongfully, for a long space of time prior to the date aforesaid, permitted the said pipe or conduit constructed and laid as aforesaid, to be and remain upon said bridge at the place aforesaid.'” Both defendants were therefore charged with negligently maintaining the pipe upon the bridge. It was not necessary that plaintiff should prove all his charges of negligence against the defendants, and if the proof showed that said defendants negligently permitted said- pipe to remain upon the bridge, that was sufficient, even if plaintiff did not prove by a preponderance of the evidence that defendant, the Public Service Company, placed it there.

At the close of plaintiff’s case the city moved to instruct the jury to find it not guilty because no proof had been introduced that the statutory notice had been served upon said defendant, and no proof that there is an office of city attorney or city clerk in said city. The City of Ottawa is under “the commission form of municipal government.” Section 23 of the Act (J. & A. 1582) providing therefor gives the cit> council all the powers and duties previously possessed by various officers, including the city clerk and the city attorney. Section 24 (J. & A. 1583) provides that the city council by a majority vote may in its discretion elect a city clerk, a city attorney, and other officers. It seems to be argued that it must do this by ordinance, but the statute does not so require. Plaintiff offered in evidence a notice to the city, and there is no claim that it is not in proper form and that it was not served in due time, if served at all. A. E. Butters, one of plaintiff’s attorneys, testified for plaintiff that he served upon William W. Curtis, then city clerk of the City of Ottawa, and filed in the office of the city clerk, one copy of said notice on July 31, 1914, and on the same day served another copy thereof on Rector C. Hitt, then city attorney of the City of Ottawa, and filed the same in the office of the city attorney, and that the signatures appearing upon the copy he offered were the signatures of said city clerk and said city attorney. Upon the back of the notice he so offered was a receipt for such copy signed: “Rector C. Hitt, city attorney,” and another receipt signed “William W. Curtis, city clerk.” We are of opinion that this proof was prima facie sufficient to show that there was a city clerk and a city attorney, and that such copies were duly filed in their respective offices; and there was no proof to the contrary.

We are of opinion there was no error in permitting plaintiff to prove that his horse was gentle, though he did not so allege in the declaration. Plaintiff introduced proof that plaintiff had a certain disease of the mouth after this accident, and there was medical evidence that it could be attributed to this injury. Other medical testimony introduced by defendants made it doubtful whether it could have been so caused. The court excluded the testimony that plaintiff had such a disease, and we are of opinion that defendants have nothing of which to complain in that respect.

It is argued that the court erred in giving instruction No. 2 at plaintiff’s request. The objection is based on the claim that the amended count does not charge that the Public Service Company kept and maintained this pipe upon the bridge. We have already shown that that claim is unfounded. The court refused instruction No. 20, offered by defendants, which was to the effect that if there was any efficient, independent cause which contributed directly to the accident, other than the maintenance of the gas pipe, they should find the defendants not guilty. The contributory negligence of another party does not relieve a defendant from the consequences of its negligence. The effect of any contributory negligence by the plaintiff was covered by instructions Nos. 10, 14, 16, given. Instruction No. 21, offered by. defendants, wás properly refused because it was merely an abstract proposition of law, not applied at all to the case, and the jury very likely would not have understood how it should be applied. Instruction No. 24, refused, was contained in No. 10, given. Instruction 25 was properly refused because it invited the jury to speculate as to what might have happened if the gas pipe had not been upon the bridge. There was no such issue in the case, and there was positive proof that there was a guardrail which would have prevented plaintiff from driving into the bridge if this pipe had not been there. Instruction No. 31, offered by defendants, was properly refused because it was covered by Nos. 8, 10, 14, 16, given.

The bridge in question is very long; the driveway is 24 feet wide; the pipe in question is laid on the east side of that driveway; and under ordinary circumstances a party driving a vehicle south over the bridge would have no occasion to be on the east side, but should drive on the west side. There is, however, on the west side a street railway track over which the traction company runs city street cars and the interurban company runs larger and heavier cars to and from Streator. East of the main way of the bridge and outside of the main steel structure is a sidewalk, which is somewhat higher than the floor of the bridge and extends a few inches into the driveway. This gas pipe was laid on the east side of the driveway on the platform so extended from the sidewalk, but it was wider than that extension and projected over said extended platform into the driveway a few inches. The gas pipe was 7 inches in diameter and it had at the place in question, and at various other places on the bridge, expansion joints which extended out from the pipe at right angles 2 inches, and there were bolts extending north and south through and beyond said expansion joints with a nut on one end. The top of the expansion joints stood 15% inches from the floor of the bridge. The bridge was very much used for public travel. As plaintiff drove south on the day in question he met a street car going north and his horse was somewhat frightened by its approach and veered to the east. After the" street car went by, plaintiff drove arouqd one vehicle that was in front of him driving very slowly, and hurried .up in an effort to get across the brige before an interurban car which he saw approaching should come upon the bridge. That car, however, got upon the bridge before he had reached the south end, and his horse became sufficiently unmanageable so that it forced plaintiff’s front wheel against this pipe and the wheel slid along upon the pipe until it reached this expansion joint. It was then impossible for the wheel to slide off from this joint, both because it was at right angles to the pipe and because of the nut upon the end of the bolt in the expansion joint. The right front wheel passed over the expansion joint, and that sudden elevation of the wheel in passing over the joint tipped over the wagon, threw out the plaintiff, broke one thill, and the horse ran away. Defendants rely on the right of cities to have carriage blocks, hitching posts, curbing and trees in the street, and upon the obvious fact that people driving vehicles can run against those impediments and be injured, and upon decisions that cities under certain circumstances are not liable for damages incurred thereby. That principle is not fairly applicable to this case of a long bridge, traversed by street and interurban cars and traveled by very many vehicles in a day. The presence of the street car tracks and street cars on the west half of the bridge compelled plaintiff to drive upon the east part. Defendant’s counsel figures that if plaintiff had driven his horse, as near as he could to the street car without having his hub touch the car he would have been entirely away from this pipe. But it is obvious that a horse of very ordinary spirit would be inclined to sheer away from a car approaching him under such circumstances, and 'the city was bound to know that horses might be frightened by such street cars and turn still further to the east side of the bridge. In City of Joliet v. Shufelt, 42 Ill. App. 208, this court (by Cartwright, J.) said: “The running away of horses attached to vehicles is so clearly a common and ordinary accident that the nature of this runaway as belonging to an ordinary class of accidents cannot be questioned. There was nothing extraordinary in its nature, but it was one of the usual occurrences to be expected in the use of horses upon the streets, and appellant could not be injured by its being treated as such. Such an accident was treated by the Supreme Court as ordinary and of a class to be guarded against in City of Lacon v. Page, 48 Ill. 499.” In the same case, City of Joliet v. Shufeldt, 144 Ill. 403, that court gaid: “The breaking of bridles and harness, and of vehicles, are of constant occurrence. That horses, although otherwise tractable and gentle, are liable to, and do, run away when thus freed from restraint, is a common and ordinary experience against which every reasonable and prudent man takes precaution. There was nothing extraordinary in this horse running away, and it might reasonably have been anticipated. No one would think it necessary to prove that it was an accident likely to occur; it is a matter of common knowledge and experience.” Elsewhere it is there held that the running or fright of a horse and negligence of a city producing an injury leave the city liable. Village of Carterville v. Cook, 129 Ill. 152; Flanagan v. Wells Bros. Co., 237 Ill. 82; Ford v. Hine Bros. Co., 237 Ill. 463. It is obvious that the jury might very properly find that it was negligence for the Public Service Company to maintain and for the city to permit the maintenance of this expansion joint upon that bridge, under all the circumstances stated. Defendants contend that the horse was running away and that this relieves them of responsibility. Not only is that position shown to be untenable, by the authorities above quoted from, but also there was positive evidence that the horse was not running until the wheel struck the expansion joint, and there was as much evidence of that as there was that the horse was running away before that time, and the jury could properly find from the evidence that the horse was not running away before the wheel struck the joint. Plaintiff struck the ground a number of feet south of the joint, and defendants contend that his fall from the wagon was therefore due to something which happened after the wagon passed over the expansion joint, and as the thill broke they contend they are not responsible for that and that that caused plaintiff to fall from the wagon. We do not doubt from the evidence that the passing of the wheel over the expansion joint caused the entire accident. As the vehide was moving rapidly it would naturally carry plaintiff’s body along with it some distance; but these were all questions of fact which have been determined against defendants by two juries, whose verdicts have been approved by. two trial judges, and we are not authorized to further interfere on questions of fact in the present state of the record.

It is argued that the damages ($3,000) are excessive. Without describing plaintiff’s injuries, we think it sufficient to say that they were severe and that the damages are not excessive.

Since this opinion was prepared the death of William C. Siegert has been suggested, and William C. Siegert, executor, has been substituted as appellee. The judgment is affirmed.

Affirmed.


text:
    William R. Howard, Appellee, v. Hartman Furniture & Carpet Company, Appellant.
    Gen. No. 6,435.
    (Not to be reported in full.)
    Appeal from the County Court of Peoria county; the Hon. "Chester F. Barnett, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 16, 1917.
    Statement of the Case.
    Action by William R. Howard, plaintiff, against Hartman Furniture & Carpet Company, defendant, to recover the value of goods taken by defendant under a chattel mortgage given to secure- a note for the unpaid balance of the purchase money for the goods. From a judgment for plaintiff for $79.09, defendant appeals.

      Abstract of the Decision.
    1. Chattel mortgages—when evidence shows indebtedness of mortgagee to mortgagor. Plaintiff’s evidence held sufficient to show his indebtedness to defendant in excess of defendant’s alleged indebtedness to plaintiff, in an action to recover the value of certain goods bought by plaintiff of defendant on partial payments, which goods defendant took on default in payments under a mortgage and sold.
    2. Chattel mortgages, § 274

      —when forgery of mortgage does not preclude foreclosure of prior mortgage. A claim by the mortgagor of chattels that a second mortgage on the property was a forgery and hence a sale by the mortgagee constituted a conversion, is not available where in any event the first mortgage was valid and would have authorized the sale.
    3. Chattel mortgages—when second mortgage does not supersede first mortgage by wife as agent for husband. A second note and chattel mortgage did not supersede a first mortgage executed by plaintiff’s wife as his agent, unless such second note and mortgage were executed by her, as to the goods covered by the first note and mortgage.
    4. Chattel mortgages—when instruction ignoring first mortgage in action by mortgagee to.recover value of goods is erroneous. An instruction ignoring a first mortgage, in an action to recover the value of goods, a part of which was covered by such mortgage and all of which by a second mortgage, and which had been taken by the mortgagee on default of plaintiff and sold, held erroneous.
    Plaintiff’s wife acting for him purchased the goods of defendant, giving her note and mortgage for the balance due after a small payment. Later another large purchase was made and. a new note and mortgage for all balance due on both purchases with a new mortgage to secure same upon all the goods was given. Upon defaults in monthly payments, defendant took possession and sold the goods.
    Kirk & Shurtleff, for appellant.
    W. M. Barnes and John B. King, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    James L. Righthouse, Appellant, v. Peoria Railway Company, Appellee.
    Gen. No. 6,447.
    1. Workmen’s Compensation Act, § 5

      —when action on case does not lie against third party. Where an employee, his employer and a negligent third party are all subject to the Workmen’s Compensation Act of 1913, there can he no recovery in an action on the case against such third party for injuries to the employee from such negligence.
    2. Workmen’s Compensation Act, § 4*—what constitute carriage by land or water and loading and unloading in connection therewith. Hauling coal or ice about a city for delivery by an employee to his employer’s customers is, within section 3 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. If 5475(3)], as “carriage by land or water and loading and unloading in connection therewith.”
    3. Workmen’s Compensation Act, § 2*—when acceptance of does not affect liability of negligent third person. An employee a^id his employer cannot, after an injury to the employee, place themselves under the Workmen’s Compensation Act of 1913 so as to affect either the rights or the liabilities of a third party who caused the injury.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehatjs, Judge, presiding. Heard in this court at the April term, 1917.
    Affirmed.
    Opinion filed October 16, 1917.
    Dailey & Miller and Robert N. McCormick, for appellant.
    Page, Hunter & Page, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Righthouse sued the Peoria Railway Company in an action on the case and filed a declaration containing an original count and additional counts, in which he charged that while he was driving an ice wagon across a street car track of defendant in the exercise of due care, defendant’s employees negligently drove a street car against the ice wagon and plaintiff was thrown out and injured. The negligence was differently described in various counts. The trial court overruled a demurrer by plaintiff to an amended second additional plea and to a fifth additional plea. Plaintiff elected to abide by said demurrer and a judgment in bar was entered against him, from which he appeals. For brevity counsel have called these the first and second pleas, and, as they are the only pleas in the record before us, we use the same designation.

The first plea alleged that defendant was under and bound by the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. [[ 5475(1) et seq.] and the amendments thereto; that plaintiff, when injured, was in the employment of Off Bros. Coal Company, a partnership, and was performing his duties as such employee when he was injured; that said employers were then in the retail coal and ice business and employed plaintiff in said business to each day load a wagon to be drawn by two horses with coal or ice, and with said wagon so drawn to deliver said coal or ice to the customers of said employers at places in and about Peoria, and to unload said coal or ice from said wagon at the place of delivery, and that plaintiff was also the driver and in charge of said team and wagon when so delivering said coal or ice; that the injuries sustained by plaintiff arose out of and in the course of said employment; that said employers had not prior to the time of said injuries to the plaintiff filed with the Industrial Board any notice of their election not to provide and pay compensation according to the provisions of said statute, and said employers were therefore at the time of said injuries bound by the terms and provisions of said statute; that defendant had not, prior to said injuries, filed any such notice, and it was therefore bound by the act; that said plaintiff had not prior to said injuries filed any notice with the Industrial Board of his election to reject the provisions of said statute, and he was therefore at the time of said injuries bound by all the provisions of said statute, and has since sustaining said injuries received from said employers compensation for said injuries according to said statute. The substance of these averments is that the plaintiff and his employers and the defendant were all under the act and that plaintiff was injured while engaged in the 'employment of hauling coal or ice about the city for delivery to customers of his employers. The main question is whether this was “carriage by land or water and loading and unloading in connection therewith,” within the meaning of section 3 of the statute [Callaghan’s 1916 St. Supp. 5475(3)]. In Armour & Co. v. Industrial Board of Illinois, 273 Ill. 590, an employee of Armour & Company was driving a team with a load of freight, which was being hauled from the plant of Armour & Company at the Union Stockyards, Chicago, for delivery down town and with orders to bring back a load of freight from a certain warehouse. A recovery by the administrator of the deceased employee before the Industrial Board under the Workmen’s Compensation Act was sustained. In Parker-Washington Co. v. Industrial Board of Illinois, 274 Ill. 498, the Parker Company, engaged in general contracting work, had a contract with the Bessmer Teaming Company to haul 2,000 cubic yards of crushed stone from one place to another in Chicago and to deliver it "at the latter place for paving purposes. While' an employee was driving a 2-horse team hauling a load of crushed stone, he fell under the wheels of the wagon and was killed, and a claim was afterwards filed under this statute; and under certain provisions of the act it was necessary that the business in which deceased and his employer were engaged must have been extrahazardous and must have been “carriage by land or water and loading and unloading in connection therewith.” It was held that this enterprise of delivering crushed stone was not a mere incident to the general business of the employer, but that it was the business or enterprise of carrying by land, and that the employer was liable under the Compensation Act. In Suburban Ice Co. v. Industrial Board of Illinois, 274 Ill. 630, the Suburban Ice Company was engaged in the manufacturing and sale of ice and in the sale of coal, coke and wood. The company, delivered ice and coal at retail and ice at wholesale by means of horse-drawn trucks and used teams which it kept in a horse barn. G-ylfe was a teamster employed by the company to deliver ice and coal and was feeding a team in the bam when one of the horses kicked him ,in the head with such violence that he died 3 weeks thereafter. The court held the evidence sufficient to support a finding that the accident occurred in the course of Gylfe’s employment and that this employment was a part of the company’s business of• occupation of manufacturing and selling ice; that the duties of deceased were so connected with the occupation of the company as to make the provisions of this statute applicable. So far the cases cited have been against the employer. In Keeran v. Peoria B. & C. Traction Co., 277 Ill. 413, the suit, like the one before us, was against a third party. This was an action on the case brought by the administratrix of the estate of James A. Keeran, deceased, against the traction company to recover damages for the death of her decedent caused by the negligence of the traction company. The traction company filed special pleas in which it was alleged in the first plea that the deceased was in the employ of a certain partnership, in the second plea that he was in the employ of a certain other partnership, and in the third plea that he was in the employ of both partnerships; that the traction company was under the Workmen’s Compensation Act; that said respective employers were under the act, and that the occupation in which he was engaged for said employers was extrahazardous, and that in fact all three parties, employee, employer and the traction company, were under the act. It is clearly implied there, if not directly held, that these pleas would have been a complete defense to that action on the case if they had not been defective in failing to show what his duties were or how he was engaged at the time he was hurt, and in failing to show that he was actually engaged in his employment or in an ex-trahazardous occupation for his employers when he was injured. It was there said: “The two sections, when construed together, must be regarded as meaning that no common law or statutory right to recover damages for any accidental injury arising out of and in the course of his employment shall be available to any employee, either against his employer or against any third person whose negligence may have occasioned the injury, where such person had also elected to be bound by the act, the employer in such case being subrogated to the right of the employee or his personal representative to recover, and the amount of the recovery being limited to the aggregate amount of compensation payable under the act.” This case seems to be express authority for holding that where, as here, the employee, employer and the negligent third party are all under the act, there can be no recovery in an action on the case for the injuries resulting from such negligence. Since the cause was submitted, appellant has called our attention to Hochspeier v. Industrial Board of Illinois, 278 Ill. 523. We find nothing in that case to conflict with the authority above cited or to show that defendant here is liable in an action on the case. It is there held that an undertaker, who lets a car to another undertaker to carry passengers at a funeral is not engaged in ‘ ‘ carriage by land,” nor in “an extrahazardous occupation.” It is manifest under: the foregoing decisions that there is a clear distinction between that case and the present. Plaintiff relies principally upon what is said in Uphoff v. Industrial Board of Illinois, 271 Ill. 312 [13 N. C. C. A. 80]. The question before the court for decision in that .-,ase related to a person engaged in building a shed on a farm. It was there implied by way of illustration that “carriage by land” would not include hauling of grain by team and wagon from a farm to an elevator. This language is explained in Parker-Washington Co. v. Industrial Board of Illinois, supra, as meaning that the mere hauling of a single such load would be a mere incident to the business of farming and therefore not covered by the act.

The second plea sought to establish a case where the railway company was under the act, but neither the plaintiff nor his employers were under the act at the time he was injured, but it alleged that after the injury the plaintiff claimed of his employers compensation under the statute, and his employers paid him compensation in accordance with the terms and provisions of the statute, and plaintiff received and retained such compensation, and thereby before he began the suit elected to be bound by the statute. We are of opinion that plaintiff and his employers could not after the injury place themselves under the act as to this injury, so as to affect either the rights or the liabilities of the railway company. We are of opinion that Simpson Construction Co. v. Industrial Board of Illinois, 275 Ill. 366, is not in point. There the proceeding was begun before the Industrial Board by Mustaccio against his employers for compensation under the act and the question whether they were in fact under the act was not raised or discussed, and we do not understand that case to mean that because Mustaccio claimed compensation under the act and his employer paid it for a time that placed them under the act. But, even if that was meant, we are of opinion that it would not affect either rights or liabilities of a third person, who caused the injury. We are therefore of opinion that the demurrer should have been sustained to the second plea.

But we hold the first plea good and, as it presents a complete defense to the action, the judgment is affirmed.

Affirmed.

Niehaus, J., took no part.


text:
    Josephine B. Dodge, Appellee, v. Reuben Bruce, Appellant.
    Gen. No. 6,461.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Instructions, § 63

      —when instruction erroneous as assuming facts. An instruction assuming that there was a contract between plaintiff and defendant for the sale by plaintiff of defendant’s property and that plaintiff brought about the sale in controversy, which was a sharply disputed question in the case, held erroneous, in an action to recover a commission on the sale.

      Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1917.
    Reversed and remanded.
    Opinion filed October 16, 1917.
    Statement of the Case.
    Action by Josephine B. Dodge, plaintiff, against Reuben Bruce, defendant, to recover under a contract for a commission on the exchange of certain property. From a judgment for plaintiff for $550, defendant appeals.
    Dailey & Miller, Charles C. Le Forgee, George W. Black and Thomas W. Samuels, for appellant.
    Burton & Hamilton, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

2. Instructions, § 12*—necessity of definiteness. An instruction which was very indefinite, uncertain and might mislead the jury should not be given.

3. Instructions, § 88*—when instruction on determination of preponderance of evidence is erroneous. An instruction upon the determination of the preponderance of the evidence, undertaking to enumerate the elements to be considered and omitting the element of the number of the witnesses, and also the element as to the candor and fairness or lack- thereof of the witnesses, held erroneous, notwithstanding the witnesses were equal in number, as the number differed on some points.