text:
    The People of the State of Illinois, Defendant in Error, v. Daniel Weber, Plaintiff in Error.
    Gen. No. 14,814.
    1. False pretenses—when information sufficient. Held, that the amended information in this case was sufficient after verdict.
    2. Pleading—what need not he averred. Whatever is included in or is necessarily implied from an express allegation, need not be otherwise averred.
    3. Pleading—when information sufficient after verdict. If an information or indictment contain all the essential elements of a public offense, even though they are to some extent defectively stated, it will be held sufficient, and judgment will not be arrested.
    Prosecution for obtaining money by false pretenses. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the- Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 7, 1909.
    Edward H. Morris, for plaintiff in error.
    John J. Healy, for defendant in error; Oscar D. Olson, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

Daniel Weher, plaintiff in error, was charged by an information in the Municipal Court of Chicago with the offense of obtaining money by false pretenses in violation of section 96 of chapter 38 of the Bevised Statutes of Illinois. He pleaded not guilty, and on the trial the jury returned a verdict of guilty. The court thereupon imposed a fine of $100, and a term of nine months in the House of Correction.

The information avers “that Daniel Weber, late of the said City of Chicago, heretofore, to-wit, on the 28th day of December, A. D. 1907, at the City of Chicago aforesaid, did then and there with intent to cheat and defraud one Fred Schaefer designedly by color of a false token or writing, towit, a check drawn on the Chicago Savings Bank & Trust Co., obtain from said Fred Schaefer one hundred and forty-five dollars, lawful money of the United States, the property of Fred Schaefer, by falsely pretending that he had on deposit with the Chicago Savings Bank & Trust Co. a sum of money not less than one hundred and forty-five dollars, when in fact he had on deposit in said bank only the sum of eightv-eight dollars and eighty-three cents, contrary to the form of "the statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois.”

The information was verified by the affidavit of Fred Schaefer.

No motion was made in the trial court to quash the amended information. A motion in arrest of judgment was made by plaintiff in error, and the court overruled it. Error is assigned on the overruling of the motion.

It is urged that the motion should have been sustained because the information charges no offense, and is not sufficient to support a judgment. The point specifically made is that the information does not show or set up any connection between the alleged false token—the check—and the false representation.

Taking the whole information together and giving it a reasonable construction, we think the plain intent is to “charge that the check was drawn by Weber. It admits of no other theory or implication. Whatever is included in or is necessarily implied from an express allegation, need not be otherwise averred, is a familiar principle of pleading. Maynard v. The People, 135 Ill. 416; Baysinger v. The People, 115 id. 419. The fact that Weber drew the check is included in, and necessarily implied from, the express allegations of the information. .Possibly the information might not be good on a motion to quash. On that question we express no opinion. It is not before us. But on a motion in arrest of judgment, we think the information is sufficient, in this regard, to support a judgment.

It is contended that the information must, allege that Weber well knew that he did not have $145 in the bank, and that the pretenses were false, and it is insufficient for that reason. In our opinion the information in alleging that the defendant “with intent to cheat and defraud one Fred Schaefer, designedly * • * * and by falsely pretending that he had on deposit with the Chicago Savings Bank & Trust Company a sum of money not less than one hundred and forty-five dollars,” means and charges that the defendant Weber well knew he did not have that amount on deposit in the bank, and that he represented what he knew was false. The averments are sufficient, we think, on a motion in arrest of judgment. If an indictment contains all the essential elements of a public offense, even though they are to some extent defectively stated, it will be held sufficient, and judgment will not be arrested. 2 Ency. of P. & P., 798. We cannot understand how the defendant Weber could have falsely pretended that he had the money on deposit unless he knew that he did not have the amount on deposit, for, if he supposed that he had the amount of the check on deposit, he could not. have made the false pretenses averred. The averment of the intent to cheat and defraud, coupled with the averment of false pretenses, is therefore in substance an averment that the defendant knew the pretenses were false. In other words, the intent and the pretenses averred are of such a nature as to exclude the hypothesis of the defendant's ignorance of their falsity. O'Rourke v. Sproul, 241 Ill. 576.

It is urged that the information is fatally defective in that it does not charge that by means of the false pretense, or that Schaefer relying upon the false pretense, parted with his money.

This contention is fully answered by the supreme Court of Iowa in State v. McConkey, 49 Iowa 499, where it says: "It is claimed that the indictment is insufficient because it does not aver that Hurst believed or relied upon the representation alleged to have been made by the defendant. In charging the offense the indictment follows substantially the language of the statute deftnin~ the crime (see Code, par. 4,073). The indictment charges that by means of the false token and pretense the defendant obtained from Hurst the property described. This allegation embraces the idea that Hurst relied upon the representations made; for, if he had not done so, the defendant could not, by means of such representation, have induced him to part with his property. See State v. Penley, 27 Conn. 587."

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    People of the state of Illinois, Appellee, v. Thomas Burke, Appellant.
    Gen No. 14,983.
    1.TERDICTs-wlten not dist~urbed. A verdict not clearly and manifestly against the weight of the evidence will not be set aside on review.
    Wife abandonment. Appeal from the Municipal Court of Chicago; the Hon. Jouu H. N~wcoMER, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 7, 1909.
    Bulkley, Gray & More, for appellant; Charles King Sherman, of counsel.
    No appearance by appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The information in this case charges the defendant Burke with wife abandonment.

The only question presented is whether or not the evidence justifies or sustains the judgment: A jury wus waived and the cause was submitted to the court for trial.

Upon a review of the evidence we are of the opinion that the finding and judgment is sustained by a clear preponderance of the evidence. It is clear from the evidence that defendant Burke not only abandoned his wife and refused to live with her, but that he neglected and refused to maintain and provide for her.

The evidence is conflicting in some particulars, and the presiding judge, with the witnesses and their manner of testifying before him, was in.a better position than is this court, sitting as a court of review, to determine the credibility of the witnesses and to say which of them is to be believed where their evidence is conflicting. Calvert v. Carpenter et ah, 96 Ill. 63. We cannot say from the record that the finding of the trial judge who heard the evidence and saw the witnesses as they delivered their testimony on the trial, is contrary to the weight of the evidence. The judgment must be affirmed.

Affirmed.


author: Per Curiam.

text:
    Mutual Loan & Savings Association, Appellee, v. E. R. Borden, Appellant.
    1. Homestead loan associations—power to sue for installments due on stock. Held, under the contract in evidence in this case, that a homestead loan association had power to sue and recover installment payments upon stock subscribed for by the defendant member.
    2. Contbacts—when ultra vires provisions do not render entire contract void. If a homestead loan association has power to deal with respect to the subject-matter of the contract in question and generally to do the things provided for therein, the fact that some of the details of such contract are not in accordance with the provisions of the statute will not render the entire contract void if the provisions that are illegal or which such association has no power to enforce may he separated from other parts of the contract and rejected.
    Assumpsit. Appeal from the Circuit Court of Cass county; the Hon. Habby Higbee, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed December 15, 1909.
    R. R. Hewitt and A. A. Leeper, for appellants.
    Milton McClure, for appellee.
   Per Curiam.

This is an action in assumpsit by the Mutual Loan and Savings Association, appellee, against E. B. Borden, appellant. The declaration alleges that the plaintiff is a building, loan and homestead association incorporated under the laws of Illinois, and on February 5, 1907, it e’ntered into a written contract with the defendant, as follows:

“In consideration of his agreement to pledge the stock, and to pay the dues and interest as herein agreed, the undersigned, the Mutual Loan and Savings Association, of Beardstown, Illinois, acting by and through its president and secretary, J. D. Nicholson and T. K. Condit, respectively, hereby agrees to sell and convey by good and sufficient conveyance to E. B. Borden the following described real estate, for the consideration of twenty-seven hundred and fifty dollars ($2750) viz.:

“Lot five in Block sixty-seven in the School Commissioners addition to the town (now city) of Beards-town, in Cass county, Illinois.

“The said association hereby acknowledges the receipt of fifty dollars of said purchase price, the sum yet to be paid being twenty-seven hundred dollars.

“The said E. B. Borden hereby agrees to purchase said real estate for the price stated, said balance of the consideration to be paid in the manner following: The said purchaser hereby subscribes for twenty-seven shares of stock in said Mutual Loan and Savings Association, which he agrees to assign, and which he hereby pledges to said association to serve as security for the said unpaid balance of said purchase price. The said Borden agrees that he will monthly pay to said association, beginning with the month of January, A. D. 1907, the sum of twenty-seven dollars on account of said stock, thirteen and one-half dollars of which is to be a credit on said stock as dues, and thirteen and one-half dollars of said payment to be taken and received by said association as the monthly interest on said unpaid purchase price. And the said E. B. Borden hereby agrees to continue said payments on or before the 15th day of each calendar month from and including the month of January, A. D. 1907, until said twenty-seven shares. of stock so pledged by him to said association, shall become mature, under the rules and regulations of said association and of the par value of one hundred dollars per share, at which time, it is hereby agreed that said twenty-seven shares of stock shall be cancelled and the said association shall then immediately execute and deliver to said Borden, his heirs or assigns, a good and sufficient conveyance of said real estate, vesting the fee simple title thereof in said Borden, his heirs or assigns, free and clear of all encumbrances and liens, except said unpaid taxes for the year 1907 and subsequent years.

“It is agreed that the said Borden shall go into the immediate possession of said premises, under this contract, and that he shall be entitled to the rents and profits thereof, being required to pay said monthly installments of twenty-seven dollars as aforesaid, and that said Borden shall pay all taxes on said premises for the year A. D. 1907, and subsequent years, and' that he shall keep the buildings on said lot duly insured for the benefit and in the name of said association for such reasonable sum as shall be required by the association and that he shall at all times, and at his own expense, keep the buildings on said lot in a reasonably good state of repair.

“And it is further agreed that in case the said Borden, his heirs or assigns, shall fail for two consecutive months to pay said sum of twenty-seven dollars to said association, that then this contract shall be forfeited, and in such case said association shall have the right to immediate possession of said lot and premises without further notice or demand. And in case of such forfeiture all the money paid by said Borden, his heirs or assigns, on account of said twenty-seven shares of stock, shall belong to said association as rent for the use and occupation of said premises, and as its liquidated damages and the stock so pledged to the association as collateral security as aforesaid, shall also, in case of such forfeiture, belong to said association, and may be by it canceled.

“It is further agreed that a failure to pay the taxes on said real estate, or to keep the buildings and improvements thereon in a reasonably good state of repair, by the said Borden and at his own expense, shall likewise canse a forfeiture of this contract, the same as for the non-payment of dues and interest as above promised.”

The declaration further alleges that the defendant entered into possession of said premises under said contract, and has ever since been in possession of the same, and enjoyed the rents and profits thereof; that the plaintiff became the owner of said premises as purchaser at a judicial sale resulting from the foreclosure of its own mortgage thereon against other persons; that by the terms of said contract the defendant became liable to pay to the plaintiff the sum of $27 per month until the maturity of the stock mentioned therein, and being so liable, the defendant in consideration thereof promised the plaintiff to pay to it the said sum of money; and that the defendant did pay the plaintiff said sum of $27 per month until June 1, 1908, since which date the defendant has not paid any further installments but has wholly refused to pay the same.

To this declaration the defendant interposed a general demurrer, which was overruled by the court, and the defendant electing to abide his demurrer, a hearing was had resulting in a judgment against the defendant for $243 and costs of suit.

It is urged on behalf of defendant that the contract in question is ultra vires the plaintiff corporation, and therefore, void, and the main ground relied upon in support of such position is that it violates the statute in providing a forfeiture of defendant’s rights on failure to pay dues and interest for two successive months.

Section 13 of the act entitled “Homestead Loan Associations” expressly authorizes such associations to purchase real estate upon which they may have or hold any mortgage, lien or other encumbrance, and to sell such real estate so acquired at pleasure to any person or persons whomsoever. Rev. Stat. 1908, 549. Section 9 of the same act provides, that in case of non-payment of installments of interest and fines by borrowing stockholders .for the space of six months, payment of principal and interest and fines, without deducting the premium paid or the interest thereon, may be enforced by proceedings against their securities according to law, upon the order of the board of directors. It is insisted by plaintiff that this is not a proceeding to declare a forfeiture under the contract and that it is not bound to resort to its remedy by forfeiture, but may elect to hold defendant liable upon the principal obligation to pay the monthly installments, and cites Mason v. Caldwell, 10 Ill. 196; Raymond v. Caton, 24 Ill. 123, and Kempshall v. Vedder, 79 Ill. App. 368, in support of such insistence, and it is further insisted that this is not a proceeding against the securities of the defendant, as a borrowing stockholder, if he may be properly so termed.

By this contract appellant agreed to pay appellee a certain sum each month and when these payments were fully completed according to the contract, the stock issued to appellant became matured, and would be of sufficient amount to pay for the property bought by the appellant, and instead of paying the value of this stock to appellant, the stock was to be cancelled and the money retained by the appellee for its property.

There is no pretense made that appellee was not empowered to sell this property on the plan here adopted. The only contention of appellant was that certain conditions and provisions named in this contract, which provided for a forfeiture of stock and payments made by appellee upon two months default in such payment, is illegal; that appellee had no power to make such provision and by reason of this provision the contract is ultra vires, and absolutely void and cannot be enforced against appellant. It cannot be and it is not contended that appellee had not the power to sell its stock as it did to appellant. Neither is it nor can it be contended that appellee had not the power to contract for the sale of its real estate. Therefore, the subject-matter of the contract and the power in appellee to make the contract, to issue stock and sell its real estate must be conceded, and the fact that some of the details for the execution of the contract may not be in accordance with the provisions of the statute will not render the entire contract void, if the provisions that are illegal, or which appellee has no power to enforce, may be separated from other parts of the contract and rejected.

In C., B & Q. R. R. Co. v. City of Aurora, 99 Ill 205, where it was sought to defeat the recovery on bonds issued by the city for the reason that the ordinance directing their issuance and a provision contained in the bond provided that the tax for the payment of the bonds should only be levied on property situated in the west division of the city, and that this provision was illegal and, therefore, the entire bond void, the court in its opinion says:

“But has a court the right, in the construction of these bonds, to disregard the conditions because taxes cannot be collected legally from property situated in the west division of the city? There are cases which hold that the conditions of a bond may be in part void and in part valid, if they are severable, one from another. If the valid and void conditions are incapable of severance, then the bond would be wholly bad. Such is Erlinger v. The People, 36 Ill. 458, cited by plaintiff. The same principle is announced in State v. Findley, 10 Ohio, 54, cited by plaintiff, where it was held, that a bond given by a county treasurer, the condition of which is that he shall faithfully and impartially discharge all the duties of the office,' is a good statutory bond for so much as is prescribed by the statute and comprehended in the conditions, even though it be void for the residue. These cases do not, however, reach the question involved here. We do not doubt that at common law or under the statute, where a bond contains two conditions, one authorized by law and good, and the other unauthorized and bad, the latter may be disregarded and rejected, the others held good and the bond sustained”.

This same doctrine is followed in the case of Corcoran v. Lehigh and Franklin Coal Co., 138 Ill. 39. In its opinion the court quotes from Parsons on Contracts, as follows:

“ ‘A distinction must be taken between the cases in which the consideration is illegal in part, and those in which the promise founded on the consideration is illegal in part. If any part of a consideration is illegal the whole consideration is void, because public policy will not permit a party to enforce a promise which he has obtained by an illegal act or an illegal promise, although he may have connected with its act or promise another which is legal. But if one gives a good and valid consideration and thereupon another promises to do two things, one legal and the other illegal, he shall he held to do that which is legal, unless the two are so mingled and bound together that they cannot be separted, in which case the whole promise is void. ’ ”

These authorities determine the question raised in this case on the question of the entire contract being void, and that portion relating to the forfeiture may be entirely disregarded. The statute under section 9, supra, contains the provisions under which a forfeiture might be declared.

Appellee was not bound to declare a forfeiture, hut could proceed to enforce its contract as made with appellant and collect the payments provided therein to be made.

The trial court did not err in rendering its judgment in this case, and the judgment, therefore, is affirmed.

Affirmed.


author: Mr. Presiding Justice Baume

text:
    Village of Plymouth, Appellant, v. J. E. McWherter, Appellee.
    1. Ordinances—presumption as to validity. An ordinance adopted by a municipal corporation within the delegated and limited powers conferred upon it by the legislature is presumed to be reasonable and valid, and the burden is upon one attacking such ordinance clearly to establish its unreasonableness and invalidity.
    2. Ordinances—as to standing of stallions, etc., not void. Held, that an ordinance prohibiting the standing of stallions without certain consents of property owners was not unreasonable and void.
    3. Costs—when judgment erroneous. It is error to render a judgment for costs against a municipal corporation suing to enforce an ordinance.
    Appeal from the Circuit Court of Hancock county; the Hon. J. A. Cray, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed December 15, 1909.
    Flack & Lawyer, for appellant.
    W. H. Hartzell and S. L. McCrory, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The question involved in this appeal is the validity of section one of an ordinance of the Village of Plymouth entitled, “An ordinance regulating the letting of stallions, asses and bulls to the opposite sex and the handling and keeping of the same”, which section, omitting the formal part, is, as follows:

“That no person or persons shall stand any stallion, ass or bull within the corporate limits of the Village of Plymouth, Illinois, without the consent in writing of all the property owners and persons living within one block each way from the barn or stable where it is proposed to stand such stallion, ass or bull, and any person or persons violating the provisions of this section shall be fined not less than ten dollars, nor more than one hundred dollars for each offense.”

Upon the trial of the case in the Circuit Court, without a jury, upon an agreed statement of facts, there was a finding for the defendant and judgment against the plaintiff, Village of Plymouth, for costs.

The due passage and publication of the ordinance is admitted, and it further appears from the agreed statement of facts that on and prior to April 8,1908, the defendant was conducting and maintaining a breeding bam facing one of the main streets of the village, within one block of the public square of said village, and in a residence portion thereof, in which barn defendant kept four stallions for breeding purposes and stood them in said bam within the corporate limits of said village for more than ten days prior to the commencement of this suit; that during said time at least five mares were bred to said stallions on at least five different days; that said bam is situated in a residence block, and that one widow living on the lot adjacent to said barn had refused to give her consent verbally or in writing to the keeping of said barn at said place; that several other residences are located within one block of said barn and the consent of the owners in writing had not been obtained.

It is an inflexible rule that an ordinance adopted by a municipal corporation within the delegated and limited powers conferred upon it by the legislature is presumed to be reasonable and valid, and the burden is upon one attacking such ordinance to clearly establish its unreasonableness and invalidity. People v. Grand Trunk Ry. Co., 232 Ill. 292; Gage v. Village of Wilmette, 230 Ill. 428. Paragraph 75 of section 1 article 5, chapter 24, of the Revised Statutes, empowers the legislative authority of cities and villages, “To declare what shall be a nuisance and to abate the same, and to impose fines upon parties who may create, continue or suffer nuisances to exist.”

If the thing prohibited by ordinance is thereby treated and penalized as a nuisance, a formal declaration that it is a nuisance is not necessary. Miller v. Town of Sycamore, 168 Ind. 230.

In Langel v. City of Bushnell, 197 Ill. 20, it was said: “Nuisances may be thus classified: First, those which in their nature are nuisances per se or are so denounced by the common law or by statute; second, those which in their nature are not nuisances but may become so by reason of their locality, surroundings, or the manner in which they may be conducted, managed, etc.; third, those which in their nature may be nuisances but as to which there may be honest differences of opinion in impartial minds.”

The breeding of male animals to those of the opposite sex, when conducted in an enclosure out of public view and hearing does not constitute a nuisance per se, but is in its nature a nuisance, or may become so by reason of the locality or surroundings in which the same is conducted. Whether the ordinance here involved be held to be the conclusive declaration of a nuisance by the village authorities based upon the exercise by such authorities of their judgment and discretion, or whether the declaration of the thing prohibited, as a nuisance, is to be determined as a question of fact, we do not think the ordinance is unreasonable and void.

As bearing upon the question of the reasonableness of the ordinance, we fully concur in what was said by Mr. Justice Boggs in Hoops v. Village of Ipava, 55 Ill. App. 94, as follows: “The business of keeping a stallion for service, because of the inevitable indecent noises and other offensive accompaniments attendant upon the business, if permitted in the principal or thickly settled parts of a village, is in its nature offensive to the public sense of decency, detrimental to public morals and a source of annoyance and discomfort to others.”

Appellee urges that the ordinance is invalid for the reason that it delegates its enforcement to the property owners and persons living within one block each way from the barn or stable where it is proposed to stand such stallion, ass or bull. The contention of appellee in this regard is fully answered in numerous cases, where ordinances containing similar provisions requiring the consent of property owners and residents before certain business in the nature of a nuisance and otherwise prohibited within the corporate limits, could be carried on, were involved and held to be valid. City of Chicago v. Stratton, 162 Ill. 494; Swift v. The People, 162 Ill. 534; Harrison v. The People, 195 Ill. 466; Martens v. The People, 186 Ill. 314; Theurer v. The People, 211 Ill. 296; The People v. Griesbach, 211 Ill. 35.

Unquestionably, it was within the power of the president and board of trustees of the Village of Plymouth to absolutely prohibit by ordinance the location of a breeding stable within the corporate limits of the village, and it cannot be said that because the consent of all of the property owners and persons residing within certain territory contiguous to where such stable is proposed to be kept, is required to permit the location of the same in a particular locality within the corporate limits, the ordinance is unreasonable and therefore void. The further contention by appellee that the ordinance is unreasonable because it requires the consent of all the property owners and persons residing within a certain territory instead of the consent of only a majority of such property owners and persons, is equally untenable.- This contention is based upon the theory that some of the property owners and persons residing within the designated territory might be infants incapable of giving their written consent to the location of a breeding stable and the condition imposed by the ordinance would, therefore, operate as an absolute prohibition. Without conceding that the ordinance would necessarily have such effect, it may be said that a like situation might arise under an ordinance which required the consent of only a majority of the property owners, as it did in the case of The People v. Griesbach, supra, where it was not pretended that the ordinance was thereby rendered unreasonable.

The court was in error in refusing to hold as the law of the case the fourth and fifth proposition submitted by appellant, and in holding as the law of the case the first and second propositions submitted by appellee.

Appellant is not liable for costs in a proceeding to enforce its ordinances notwithstanding they may be held invalid, and the judgment in this case against appellant for costs was erroneous. City of Monmouth v. Popel, 183 Ill. 634.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The People, ex rel., Defendant in Error, v. Albert D. Stevens et al., Plaintiffs in Error.

      Mandamus—whefo review of application for, not -considered. Where the question involved has, since the application, become abstract only, the Appellate Court will not determine the question of the propriety of the issuance or non-issuance of the writ.
    Mandamus. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed December 15, 1909.
    Frank L. Hatch, George B. Gillespie and A. M. Fitzgerald, for plaintiff in error; Hamlin, Gillespie & Fitzgerald, of counsel.
    Albert Salzenstein, for defendant in error.
   Per Curiam.

On March 29, 1909, William Zapf and Bichard Sullivan filed their petition in the Circuit Court of Sangamon county, praying that a writ of mandamus issue directing the board of election commissioners of the city of Springfield to place certain names upon the official ballot to be used at an election to be held in said city on April 6, 1909. On April 5, 1909, the court overruled a general demurrer to said petition and ordered that a writ of mandamus issue in accordance with the prayer of the petition. From such order this appeal is • prosecuted by the board of election commissioners.

By reason of . the occurrence of the election the rights sought to be enforced by the petitioners have become abstract only, and a determination of the same at this time can be of no substantial or practical benefit to them. Gormley v. Day, 114 Ill. 185.

The judgment of the Circuit Court is accordingly affirmed.

Affirmed,.


text:
    Henry Nortrup, Appellee, v. Jacob Cohen, Appellant.

      Evidence—effect where witness is likewise counsel. The court is justified in giving less credence to the testimony of a witness who has likewise actively participated in the trial of the cause.
    Assumpsit. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed December 15, 1909.
    A. Jabcobson and C. E. McNemar, for appellant; Bellatti & Barnes, of counsel.
    Egbert Tilton and J. O. Priest, for appellee.
   Per Curiam.

Henry Nortrup brought suit against Jacob Cohen in the Circuit Court of Morgan county to recover the amount of commissions alleged to have been earned by Nortrup in procuring a purchaser for premises owned by Cohen in Jacksonville, Illinois. A jury was waived and upon trial before the court, there was a judgment in favor of Nortrup in the sum of $500 from which Cohen has prosecuted an appeal.

It appears from the evidence that Cohen was the owner of property in Jacksonville, Illinois, of which he wished to dispose and that Nortrup, a real estate agent living in the same city, was instrumental in getting Robert H. Bailey, of St. Louis, Missouri, to go to Jacksonville on the 8th day of November, 1907, at which time it was agreed in writing by and between Cohen and Bailey that Cohen should convey to Bailey the Jacksonville property subject to mortgage for $8000, and that, in consideration thereof, Bailey was to convey to Cohen a tract of land in Callaway county, Missouri, on which Cohen was to give Bailey a deed of trust for $8000. By the terms of said written agreement the deeds were to be warranty deeds and each party was to furnish the other an abstract showing merchantable title, and transfer was to be made on or before December 1, 1907.

About the 25th or 26th of November, 1907, an abstract of the Missouri land was tendered to Cohen, and on Monday, December 2nd a deed from Bailey to the Missouri land was tendered to Cohen. Cohen declined to accept the deed tendered by Bailey and refused to consummate the trade between Bailey and himself and soon afterward Cohen traded the Jacksonville property to another party. Appellee thereupon brought suit for commissions with the result already stated.

Practically the only question in the case is one of fact and that is whether or not Nortrup was the agent of Cohen in procuring the making of the contract between Bailey and Cohen. Appellee testified that he had a conversation with Cohen a short time before the contract involved was made and that in such conversation Cohen said to him that if he, appellee, succeeded in making disposition of the Jacksonville property in trade at $20,000 he would pay appellee $500 commission. In this he is corroborated by J. W. Jackson, who testified that he was present and heard the conversation between Nortrup and Cohen; that no one was present except appellant, appellee and himself, and that in such conversation Cohen agreed to give Nortrup $500 commission if he would' make a trade for him disposing of the Jacksonville property. It is true that Cohen denies that he ever employed Nortrup to act for him in the sale of his property and claimed upon the trial that the latter was acting as the agent of Bailey, but we think there was sufficient evidence to warrant the trial court in its holding. Three persons only heard the conversation which concerned appellee’s alleged employment and while Cohen denied such employment, the trial court committed no error in adopting the view supported by the testimony of the two other witnesses upon that subject.

Some testimony was offered to the effect that Nortrup said, during the negotiations, that he was acting for or on behalf of Bailey, but this evidence was denied by Nortrup and outside of such alleged statements of Nortrup there was no evidence whatever that even tended to show that Nortrup had any employment whatever from Bailey. A part of the testimony as to what Nortrup said upon this subject was given by one of the attorneys for Cohen, who as such attorney was actively engaged at the time in the defense of Cohen’s case and, in a sense, interested in the result of the trial. We have no doubt that in weighing the evidence the trial court took such fact into account and in doing so rightfully gave to the testimony of such witness, who was acting in the dual capacity of both lawyer and witness, less force and weight than it would have been entitled to otherwise.

No propositions of law were submitted to the trial court and as there was sufficient evidence to warrant the finding made in favor of the appellee, the judgment will be affirmed.

Affirmed.


text:
    Moses Weinberg, Appellant, v. George R. Dean, Appellee.
    Appeals awd .erbobs—when questions not preserves. In the absence of a bill of exceptions, errors urged as to the rulings upon the admission and exclusion of evidence and the giving and refusing of instructions will not be considered.
    Trespass. Appeal from the Circuit Court of Schuyler county; the Hon. Guy R. Williams, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed December 15, 1909.
    W. H. Dieterich and G. B. Steele, for appellant.
    B. O. Willard, for appellee.
   Per Curiam.

This is an action in trespass for the recovery of damages for the refusal of the defendant to deliver certain corn to the plaintiff under an alleged contract. A trial was had by jury which resulted in a verdict and judgment in favor of the plaintiff for nominal damages. To reverse such judgment this appeal is prosecuted by the plaintiff.

The record does not contain a bill of exceptions properly signed by the trial judge. It is not contended that any intrinsic error appears on the face of the record. The errors relied upon for reversal are the rulings of the trial court as to the admissibility of certain evidence, and the- giving and refusal of certain instructions. Inasmuch as the exceptions to such rulings are not preserved by a bill of exceptions, there is nothing presented for the consideration of this court. Vanlandingham v. Fellows, 1 Scam. 233; People v. Weston, 236 Ill. 104. The recitals of the clerk that exceptions were taken are of no effect.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    O. C. Adams et al., Appellants, v. Thomas Bruner, Appellee.
    Appeals and errors—what not -final judgment. If pleas in bar which answer the whole declaration are sustained after demurrer, and the plaintiff abides by his demurrer, a judgment in bar of the action and for costs should be rendered-—a judgment for costs merely is not final so as to sustain an appeal.
    Trespass. Appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at the May term, 1909.
    Appeal dismissed.
    Opinion filed December 15, 1909.
    W. C. Headen, for appellants.
    Chafee & Chew, for appellee.
   Per Curiam.

This is an action of trespass guare clausum fregit. To the declaration the defendant pleaded the general issue, and three special pleas. The plaintiffs filed a similiter to the general issue, replied to the second special plea, demurred to the first special plea, and now assigned as to the third special plea. The demurrer to the first special plea was sustained, whereupon the defendant by leave of court filed an additional plea, to which demurrer was interposed.

The bill of exceptions recites that the following proceedings were thereafter had: “Plaintiffs’ demurrer to additional pleas overruled, to which ruling of the, court plaintiffs then and there excepted and elected to abide by their demurrer to said additional plea. Whereupon, defendant moves the court for judgment upon said additional plea last aforesaid, which motion is by the court allowed, to which ruling of the court the plaintiffs then and there excepted. Therefore, it is considered by the court that the defendant have and recover from the plaintiffs, O. 0. Adams, E. F. Adams, O. E. Adams and E. Adams, his costs and charges in this behalf expended and that he have execution therefor; and the plaintiffs then and there excepted to the action of the court in rendering said judgment against them,” etc.

The additional plea in question answered the whole declaration, and the plaintiffs having abided by their demurrer thereto, it would have been proper for the court to enter final judgment upon the plea in bar of the action and for costs. Bissell v. City, 64 Ill. 249. The judgment entered being merely for costs was not final but interlocutory only. Meyer v. City of Decatur, 134 Ill. App. 385. The appeal therefrom will be dismissed for want of jurisdiction, at the cost of appellants, with leave to withdraw the record, and to either party to move for judgment in the Circuit Court.

Appeal dismissed.


text:
    John T. McKinney, Appellant, v. Board of Supervisors, Appellee.
    Appeals and ereoes—what not final judgment. A judgment for costs against a petitioner in a proceeding for mandamus is not final —to dispose of the costs the petition should he dismissed.
    Mandamus. Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1908.
    Appeal dismissed.
    Opinion filed December 15, 1909.
    Monson & Gray, for appellant.
    Herrick & Herrick, for appellee.
   Per Curiam.

Appellant filed a petition in the Circuit Court of DeWitt county for a peremptory writ of mandamus to compel the board of supervisors of said county to appoint a regular practicing physician examiner of the blind, and cause the county clerk to register the relator’s name as a person entitled to benefits for the blind, and to compel said board to provide an annual appropriation for the payment to relator of the sum of $150 per year from July 5, 1903, and a like sum annually thereafter as provided by statute. The court sustained a general and special demurrer to such petition and then entered judgment “that the defendants do have and recover of and from the plaintiff their costs and charges in this behalf expended and that execution do issue therefor.” The judgment in question is not a final and appeal-able order, as it does not appear therefrom that the petition was dismissed. Meyer v. City of Decatur, 134 Ill. App. 385; Adams v. Bruner, ante, p. 123. The appeal is accordingly dismissed, at the cost of appellant, with leave to either party to move for final judgment in the Circuit Court.

Appeal dismissed.


text:
    Laura Frazier Smith, Plaintiff in Error, v. Henry Gorham, Admr., Defendant in Error.
    1. Appeals and errors—what not essential to save questions for review in proceeding for probate of will. Propositions of law need not be presented nor a motion for a new trial interposed to save for review questions arising upon an application to probate a will.
    2. Wills—when valid. An instrument which purports to dispose of a portion of the estate of the testator after his death, regardless of its form, is valid and entitled to probate if in accordance with the statute governing the execution of wills.
    3. Wills—tohen several instruments constitute entire testamentary disposition. Where a testator leaves two or more wills, each of which may be given some effect without denying effect to all the provisions of some of the others, all are entitled to admission to probate, as together constituting the last will of the decedent.
    Petition to probate will. Error to the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed December 15, 1909.
    Henry I. Green, for plaintiff in error.
    Thomas J. Smith and Charles R. Iunjerich, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

On March 19, 1908, two separate instruments, hearing date respectively May 24, 1898, and July 18, 1898, were filed for probate in the County Court of Champaign county as the last will and testament of Josiah Gorham. The said instruments are designated in this record as “Exhibit 1” and “Exhibit 2,” and are in the words and figures following:

Exhibit 1.

“I, Josiah Gorham, of the County of Champaign and State of Illinois, being desirous of making some provision out of my estate for my niece Laura Frazier, as a slight token of my appreciation for her kindness to me.

Therefore, I give, devise and bequeath to my said niece Laura Frazier, an annual allowance of $75.001 per year out of my estate, the same to be paid to her in semi-annual installments of $37.50 each and to continue so long as she may live. Said payments to be made on March 1st and September 1st of each year.

I hereby appoint and nominate my son, Henry Gorham, as trustee to carry out the above provision, and ask that he be not required to give bond as such.

In witness whereof, I have hereunto set my hand and seal this 24th day of May, A. D. 1898.

Josiah Gorham. [ Seal. ] ’ ’

F. H. Boggs,

F. M. Phillippi,

Witnesses.”

Exhibit 2.

“I, Josiah Gorham, of the City of Champaign, County of Champaign and State of Illinois, for and in consideration of past services, and for the kindness and attention shown me by my niece, Laura Frazier, make the following provision for my said niece to be paid out of my estate after my death, that is to say:—

I give and bequeath to my said niece Laura Frazier, the sum of One Hundred and Fifty Dollars per annum, to be paid in installments of $50.00 each, every four months; the first installment to be due and payable four months after my death, and an installment of $50.00 to be due and payable every four months thereafter so long as my said niece shall survive me.

I hereby make and constitute my son Henry Gorham, trustee to carry out the provisions of this instrument, and I make said annuity a charge on my said estate.

In witness whereof, I have hereunto set my hand and seal this 18th day of July, A. D. 1898.

Josiah Gorham. [Seal.] ”

Frank H. Boggs,

F. M. Phillippi,

Witnesses. ’ ’

Upon the hearing in the County Court both of said instruments were admitted to probate as the will of Josiah Gorham, and from the order admitting the same to probate an appeal was prayed and perfected to the Circuit Court, where upon a hearing probate was denied as to the instrument “Exhibit 1,” and allowed as to the instrument “Exhibit 2.”

This writ of error is prosecuted to reverse the order of said court denying probate of the instrument “Exhibit 1.”

It is insisted by defendant in error that the questions sought to be raised upon this record are not properly presented for review because of the failure of plaintiff in error to submit propositions of law to be held by the trial court, and also because plaintiff in error made no motion for a new trial. The provision of the Practice Act relating to the submission to the trial court of propositions of law has no application to a proceeding of the character here involved, nor was it necessary for plaintiff in error to file a motion for a new trial. Schofield v. Thomas, 236 Ill. 417.

The instruments in question purport to dispose of a portion of the estate of the testator after his death. They are signed by the testator and by two persons as witnesses, and were entitled to probate as the will of the testator upon the statutory proof being made. No particular form being prescribed for a will the instruments in question are not defective in that regard. Robinson v. Brewster, 140 Ill. 649; Boatman v. Boatman, 105 Ill. App. 40; Noble v. Tipton, 219 Ill. 182; Gump v. Gowans, 226 Ill. 635.

Defendant in error assigns no cross errors upon the ruling of the court admitting “Exhibit 2” to probate, and it is conceded that the necessary statutory proof was made to entitle said instrument to probate. The ground of the refusal of the trial court to admit “Exhibit 1” to probate is not disclosed by the record, but counsel for defendant in error assert that the court was moved to deny probate of said instrument because there was no sufficient proof of its execution, and we perceive no other ground upon which the action of the court could have been predicated.

It is unquestioned that both instruments were executed by Josiah Gorham, and that F. H. Boggs and F. M. Phillippi, who signed both of said instruments as witnesses, were credible witnesses within the meaning of the law. The attesting witness F. M. Phillippi being a non-resident of this state his testimony was taken by deposition, and it is conceded that his testimony met all of the requirements of the statute relating to the due execution and attestation of the instrument “Exhibit 1” as the will of Josiah Gorham. The attesting witness, F. H. Boggs, in addition to his oral examination had in open court, made his affidavit as a subscribing witness to said “Exhibit 1,” wherein he stated, as follows: “That he was present and saw the said Josiah Gorham sign said will dated May 24, 1898, in his presence and that said testator acknowledged the same to be his act and deed; that he signed said instrument as witness at the request and in the presence of said testator, and in the presence of F. M. Phillippi; that he belives that said testator was of sound mind and memory, of lawful age and under no constraint at the time of signing and acknowledging the same.” On his oral examination the witness Boggs testified in substance, that he had been a practicing lawyer in Champaign county since 1892, and knew Josiah Gorham .in his lifetime; that he had seen both “Exhibit 1” and “Exhibit 2” before, and presumed that he had prepared “Exhibit 1” in his office; that he was a witness to both papers and presumed he prepared them both; that from his books and records he presumed he had a transaction with Josiah Gorham on the dates of both instruments; that the signature on “Exhibit 1” was the signature of Josiah Gorham made in his (the witness) presence and in the presence of F. M. Phillippi, both of whom affixed their signatures as witnesses in the presence and at the request of Josiah Gorham, and that Josiah Gorham was then of sound and disposing mind. Every element necessary to establish the due execution and attestation of the instrument “Exhibit 1,” as the will of Josiah Gorham, was proven upon the hearing and the court was in error in refusing to admit the same to probate.

The two papers are neither inconsistent nor irreconcilable, and the instrument bearing the later date contains no clause revoking the instrument bearing the earlier date. In an elaborate note to Graham v. Burch, 28 Am. St. Rep. 339, entitled “Revocation of Wills,” under the subdivision entitled, “Revocation by Subsequent Writing,” numerous authorities are cited in support of the rule that where a testator leaves two or more wills, each of which may be given some effect without denying effect to all the provisions of some of the others, all are entitled to admission to probate, as together constituting the last will of the decedent. In Gordon v. Whitlock, 92 Va. 723, it was said: “The mere fact of making a subsequent festamentary paper does not work a revocation of a prior one in the absence of an express revocation, unless the two are incapable of standing together. A will need not be confined to one paper, but may consist of several testamentary papers of different dates, and executed and attested in different ways, and at different times. The expression in the subsequent will, “This is my last will,” is not entitled to any weight. If the subsequent paper is merely supplemental, it will be treated as a codicil; if partially conflicting, that of later date will operate to revoke the former so far as the provisions .of the two are conflicting or incompatible. But, in the absence of a clause of revocation, the 'court will adopt that construction which will give effect to all the testamentary papers, if possible, sacrificing the earlier papers only so far as clearly irreconcilable with the later.” The same doctrine is announced in Page on Wills, secs. 268-269.

The order of the Circuit Court denying probate of the instrument “Exhibit 1,” is reversed and the cause remanded with directions to that court to admit said instrument to probate.

Reversed and remanded.

Mr. Justice Philbrick took no part.


author: Mr. Justice Puterbaugh

text:
    Charles Weaver et al., Appellees, v. William Ritchie et al., Appellants.

      Evidence—when witness not disqualified 6y virtue of interest.' If the pecuniary interest of a witness with respect to the subject-matter of the litigation has teen finally fixed and determined and cannot he affected by the result of the pending action, he is not disqualified to testify.
    Action in case. Appeal from the Circuit Court of Macon county; the Hon. Solon Philbbick, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed December 15, 1909.
    Buckingham & Gray, for appellants.
    Le Forges & Vail, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by the heirs of one Samuel Weaver against the defendants, who were grain buyers, to recover the value of certain grain purchased by them of one Hoyt, a tenant on Weaver’s land, or so much of the value of such grain as would pay the balance due from Hoyt as rent for the year 1905. At the close of all the evidence the court directed a verdict in favor of the plaintiffs for the sum of $848.39. To reverse a judgment rendered thereon this appeal is prosecuted by the defendants.

The action is predicated upon the existence of a lien for rent upon the grain in question by reason of. the fact that the same was raised upon the demised premises during the year for which Hoyt was in default in the payment of such rent, and that the defendants had notice of such facts. Hoyt, the tenant, testified on the trial that he leased the farm in question from Weaver in 1902, for the term of one year at the rental of $2,500, payable at the end of the term, from the money received by him for his cattle. The defendants then offered to prove by Hoyt that no further lease was made for the premises for the years 1904 and 1905, than the one referred to; that the verbal lease in question provided that Hoyt was to have the farm as long as he desired it at the same rent, which rent was to be paid on the first day of March of each year, out of the proceeds of the sale of cattle, and that he might sell the small grain raised by him upon the premises when it was harvested; and further, that thereafter Hoyt raised small grain each year and with the knowledge of Weaver sold the same after harvest to appellants, and that he paid his rent from the proceeds of the cattle raised by him. It is obvious that the evidence thus referred to would have tended to show a waiver by Weaver under the terms of the original lease of his lien upon the crops raised upon the premises, and that the evidence as to the manner in which he sold his crops thereafter, and the source from which he derived the money with which he paid his rent, would have tended to show that for the years in question he held the premises under the original lease. The evidence offered was clearly competent, and the question of the correctness of ' the rulings of the court must turn upon whether Hoyt was disqualified as a witness by section 2 of the Statute entitled “Evidence,” by reason of his direct interest in the suit.

Appellees sought to show that, a new arrangement was entered into during February, 1905, for the coming year, and for that purpose, called one Matilda Keiter, who testified as to a conversation between Weaver and Hoyt at that time. As to this transaction and conversation Hoyt was properly permitted to testify. It is insisted by appellees that he was a competent witness not only in this respect but also as to still other conversations with Weaver, prior to his death; that he was not a person directly interested in the event of the suit within the meaning of the statute. In Curtenius v. Wheeler, 5 Gilman, 462, the court held that under such statute a witness is never disqualified from testifying because of interest in the result of the suit if the extent of his own liability or claim has been previously established and is certain, and a judgment either way would not directly and certainly increase or diminish such liability or claim. We are of opinion that Hoyt was not an interested person within the meaning of the statute. He was liable to the heirs of Weaver for the rent on the one hand and on the other to the appellants in such amount as they might recover in the present suit. The extent of his liability could be neither increased nor diminished by the result of such suit, and he was therefore a competent witness.

For the error indicated the judgment must be reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Philbrick took no part in this case.


text:
    John H. Lewman, State’s Attorney, ex rel., etc., Appellant, v. F. M. Alexander et al., Appellees.
    Appeals and ebbobs—what not final judgment. An order sustaining a motion to withdraw leave to file an information and which does not actually dispose of the information already filed, is not final and appealable.
    Quo warranto. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbroxjgh, Judge, presiding. Heard in this court at the May term, 1909.
    Appeal dismissed.
    Opinion filed December 15, 1909.
    John H. Lewman, Ralph B. Holmes and Rearick & Meeks, for appellant.
    Mabin & Morris, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

On January 26, 1909, there was presented to the Circuit Court of Vermilion county, the Hon. James W. Craig presiding, a petition for leave to file an information in quo warranto in which it was averred that three of the defendants were professing to hold the office of Trustees of the Church of Christ at Brooks-Point, and that they, together with the other defendants, were professing to act as a religious corporation under that name. Upon leave being granted, the state’s attorney in the name of The People, on the relation of T. W. Blakeney, filed an information consisting of two counts, in one of which it was charged that the defendants were usurping said office of Trustees, and in the other that they were unlawfully, with others, acting as such religious corporation.

On February 4, 1909, the defendants filed in said Circuit Court, the Hon. E. B. E. Kimbrough presiding, a written motion setting forth that the order of court theretofore entered was -made under misapprehension of facts and improvidently entered; that the proceeding was ex parte and in fieri; that the proceeding was designed to serve private ends; that no public interests were at stake; that the process of court had been abused; that had the court known of the facts set forth in affidavits therewith filed, the order would not have been made; that no action had been taken by any-public body demanding such proceedings on behalf of the people, and praying that the proceedings under said order be vacated, and that the leave to file the information theretofore entered be set aside, and that the court proceed no further. In support of such motion a number of affidavits were filed.

On April 16, 1909, the motion was heard upon the affidavits in question and certain records which were introduced in evidence, whereupon the leave to file the information in question was revoked. The final order in said cause as shown by the record, reads as follows: “Thereupon the defendants’ motion to vacate order of January 26, 1909, heretofore entered herein is allowed, to which ruling of the court the plaintiff excepts and prays an appeal,” etc.

It is urged by appellant that after leave had once been given to file the information and summons had been issued and returned, the court was not justified in withdrawing the leave to file such information solely upon the showing made by the affidavits and other documentary evidence. This court is not called upon to determine the question, for the reason that the judgment entered was not final. The effect of the order in question was merely to sustain the motion to withdraw the leave to file the information granted. It does not even, in terms, withdraw such leave. No steps were taken to have the information stricken from the files, and the proceeding must be regarded as still pending. The record fails to show that the rights of the parties were finally determined by the order, which was interlocutory only in its nature. An appeal is allowed by the statute only for the purpose of reviewing final judgments, orders or decrees, and no appeal can be taken from an interlocutory order, decree or judgment entered in the progress of a cause unless specially authorized by statute. R. R. Co. v. Preucil, 236 Ill. 491.

The motion of appellee to dismiss the present appeal must therefore be sustained and the same is dismissed accordingly.

Appeal dismissed.


author: Mr. Justice Philbrick

text:
    Harrison Emerson, Appellee, v. Wabash Railroad Company, Appellant.
    Appeals and errors—when absence of evidence upon particular question not saved for review. In order to save for review the question of whether there was any evidence tending to establish a particular issue, a peremptory instruction should be asked with respect to such issue.
    Action on the case. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed December 15, 1909.
    Anderson & Matthews, for appellant; J. L. Minnis, of counsel.
    W. I. Klein and William Mumford, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant to recover damages for the destruction of a traction engine run into and destroyed by a locomotive and cars while appellee was attempting to cross the tracks of appellant at a farm crossing, the negligence charged being a failure to keep the farm crossing in a proper and reasonably safe condition, and in the handling and operation of its engine and cars by appellant’s servants, and one count charges such handling of said engine and cars to have been wilful. The cause was tried before a jury and a verdict returned for $750, upon which judgment was rendered against appellant. To reverse that judgment this appeal is prosecuted.

Appellant insists that there was no farm crossing at the point where the accident occurred, and that in attempting to cross the track at that point appellee was a trespasser; that appellant owed him no duty further than not to commit a wilful act.

The evidence discloses that some eight .or ten years prior to the time of this accident a farm crossing had been constructed and maintained by appellant at this point. The rails had been planked, the approaches to the crossing made, and gates were constructed in the fences along the right of way of appellant. Appellant claims that after this farm crossing was so constructed, it put in for the owner of the farm, for which the crossing was constructed, a subway or crossing only a short distance from the old farm crossing and for the use of the owner of said farm, and that thereafter this farm crossing was abandoned. The evidence discloses that the planking had rotted away and the approach to the crossing became out of repair, but that the gates were left in the fences and that the crossing was occasionally used; that appellee had used it prior to the time of the accident and since the construction, of the subway. The evidence further discloses that before attempting to cross at this farm crossing with his engine appellee measured the subway and found it impossible to cross at that place with his traction engine. He was crossing the tracks of appellant for the purpose of doing work upon the farm for the owner of which this farm crossing was originally made.

Appellant also insists that the record fails to disclose the use of due and proper care on the part of the appellee. The evidence shows that when appellee attempted to cross the tracks of appellant he discovered that the planking between the rails was not in good repair. He went to the house of one Smith, for whom he was intending to work, and obtained planks and boards, which he put down so that he might cross the tracks, but the engine became lodged in some way between the rails and he was unable to move it in time to escape this approaching locomotive and cars. When his engine became so lodged he sent a man down the track for the purpose of flagging this train; that the man went down the track a sufficient distance to have stopped the train, that he stood in the center of the track and waived his hands and arms, but could not attract the attention of the engineer or fireman; that the train ran past him without its speed being checked.

These were questions of fact for the jury to determine. By their verdict they have determined the plaintiff was in the exercise of due care and the defendant guilty of the negligence charged.

The appellant also contends there was no wilful negligence and that the trial court erred in giving instructions to the jury predicated on the right of recovery by reason of alleged wilful act on the part of appellant. If the appellant desired to take advantage of and raise this question, it should have offered an instruction to the court asking it to instruct the jury that there was no evidence tending to show any wilful act on the part of the appellant. But, instead of so doing, appellant offered instructions to the court submitting the question of wilful negligence to the jury and it cannot complain of instructions having been given upon that question on behalf of the appellee.

The verdict of the jury is fully warranted by the evidence in this case. The questions of fact were properly submitted to the jury, and the record being substantially free from error, the judgment in the trial court is affirmed.

Affirmed.


text:
    Julia Sutton, Administratrix, Appellee, v. Wabash Railroad Company, Appellant.
    Master and servant—when obligation to furnish safe place to worlc does not apply. The rule that the master owes a duty to furnish his servant with a reasonably safe place to perform his work can have no application where the servant, when injured, has completed the work, and, for his own convenience, goes to a place where his work does not cali him, to seek a place of shelter. The master in this case had not provided the flat car for the use to which it was appropriated by the deceased, and had no reason to know that it would be so appropriated.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the November term. 1908.
    Reversed without remanding.
    Opinion filed December 15, 1909.
    Hogan & Wallace, for appellant.
    J. C. & W. B. McBride, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by Julia Sutton, administratrix, for the death of her husband by reason of alleged negligence on the part of the appellant. Judgment was against appellant for $800. This appeal is prosecuted to reverse said judgment.

William Sutton, the plaintiff’s intestate, was a section-man in appellant’s employ. On the day he was killed he was engaged in picking up, with other employes, scrap-iron along the right of way of appellant, and taking it on a push car to be loaded on a flat car standing on a side track of appellant. Appellant had on that day several other cars standing on this side track on which the brakes had not been set either by the employes or other persons who might have left the cars on the siding at the point where they were. The evidence does not show who left them there, but it discloses the fact that they were stock cars and that it was the custom of shippers of stock to push the cars anywhere upon that track to suit their convenience for loading, and leave them at any convenient place.

When deceased, with the other section-men, had finished, or about finished, removing the scrap-iron to the flat car, a severe storm came up. This storm blew the push car down the side track quite rapidly and away from the flat car. Deceased, with two other section-men, took refuge from this storm under the end of the flat car. Another section man was sent down the track after the push car. The wind started the other cars that were upon this side track down the track and they collided with the flat car under which appellee’s husband had sought shelter. One of the men jumped away from the track and was uninjured. Another had a toe mashed, and the deceased was caught by the moving flat car, dragged under it for some distance, and received injuries from which he died that night.

At the time that deceased took refuge under this car from the storm the scrap-iron had all been removed from the push car to the flat car.

The declaration in this cause alleged due care and caution on the part of the deceased, and the acts of negligence complained of against appellant are that the brakes on the cars standing on the side track which were driven by the wind down against the flat car, had not been set, and it was negligence in appellant to so leave them in that condition, and that it was by reason of this negligence that deceased was killed. It is also alleged that by reason of the cars being so left without the brakes being set, the appellant did not furnish the deceased a reasonably safe place in which to work.

The deceased was not killed while in the performance of any duty. He had finished the work of transferring the scrap-iron from the push car to the flat car, and for the purpose of avoiding the storm and for his own convenience, took shelter under the flat car. The rule that the master owes a duty to furnish his servant with a reasonably safe place to perform his work can have no application where the servant, when injured, has completed the work, and, for his own convenience, goes to a place where his work does not call him, to seek a place of shelter. The master in this case had not provided the flat car for the use to which it was appropriated by the deceased, and had no reason to know that it would be so appropriated. O’Donnell v. MacVeagh, 205 Ill. 23.

The master owed no duty to its servants working as section-men along its track to keep the brakes set on its cars on the side track, and its failure to do so would not render the place at which the deceased met his death an unsafe place for a workman to perform his duty.

The deceased and those working with him had pushed this flat car along the side track to the point where they desired to load the scrap-iron on it and left it standing there while it was so loaded without its brakes being set, and the brakes were not set on it when deceased went under it for shelter.

Deceased knew the severity of this storm; that it had blown the push car down the track. He knew also that the brakes on the flat car under which he sought shelter were not set. To go under this car under such conditions was not exercising due care and caution for his own safety.

This court finds from the evidence in this case that deceased was not in the exercise of due care and caution for his own safety, and that his failure to do so contributed to cause his death. The clerk will incorporate in the judgment in this cause such finding of fact.

The view this court has taken of this case renders it unnecessary to pass upon the questions raised regarding the instructions.

The judgment is reversed without remanding the cause.

Reversed.


text:
    S. T. Haskins, Appellant, v. A. F. Hesley et al., Appellees.

      Estoppel—When arises to prevent assertion of lien. If a party is induced to purchase personal property upon the representation of another that he has no lien thereon, such other is subsequently estopped from asserting such lien to the detriment of the party who has made such a purchase.
    Replevin. Appeal from the County Court of Pike county; the Hon. Paul F. Gbote, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed December 15, 1909.
    Jefferson Orr, A. G. Crawford and Edwin Johnston, for appellant.
    Williams & Williams, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

On August 21, 1908, S. T. Haskins instituted an action in replevin against A. F. Hesley for the recovery of the possession of a certain horse. The suit was tried before a justice of the peace from whose judgment an appeal was taken to the county court, where a jury was waived and the cause tried by the court. A judgment in favor of Hesley was rendered and a return of the horse awarded, whereupon Haskins prosecuted this appeal.

The evidence discloses the following facts: For several years prior to the commencement of the suit, J. C. Hesley and A. F. Hesley were engaged in business in Pittsfield, under the firm name of Hesley & Bro. They hald a note against one Saylor, and to procure partial satisfaction thereof, on December 30, 1907, purchased from Saylor and took possession of the horse in controversy. Prior thereto, on December 31,1906, Saylor had executed to Haskins his promissory note and to secure payment of the same had executed and delivered to him a chattel mortgage upon the same horse. On December 30, 1907, the day before the note matured, being the same day Saylor sold the horse to Hesley, Saylor and Haskins endeavored to extend the lien of the chattel mortgage by executing and filing with the justice of the peace before whom the mortgage had been acknowledged, and with the clerk of the Circuit Court, a joint affidavit which recited among other things that the mortgage was thereby extended until December 31, 1908. During August, 1908, Saylor absconded, whereupon Has-kins demanded possession of the horse from Hesley, and upon his refusal to surrender it brought the present suit.

The evidence introduced by appellee tended to show that early in December, 1907, A. F. Hesley met Has-kins and asked him if he knew “that bay horse of John Saylor’s,” and that Haskins replied he did; that Hesley then asked him “if there was anything against the horse,” and that Haskins “shook his head and said no,” and then asked Hesley if they were going to buy the horse, and that Hesley replied, “Yes, if the horse suits us;” that afterward, during February, 1908, Harry Hesley, son of J. C. Hesley and a nephew of appellee, went in to see Haskins and said to him, “I see you have a mortgage over the horse that we got from Saylor, and I saw Mr. Saylor and he tells me that it has been fixed up,” and that Haskins replied, “It has.” Haskins upon the trial expressly denied having made such statements.

The trial judge held, as indicated by his rulings upon the- propositions of law submitted, that under the evidence Haskins was estopped from asserting any lien upon the horse, and further that inasmuch as the affidavit of extension in question was filed December 30, 1907, and purported to extend the mortgage until December 31, 1908, such extension was for a longer period than one year, contrary to the express provision of the statute, and therefore did not continue and extend the original lien beyond the maturity of the original mortgage. It will be unnecessary to determine the propriety of the latter view, for the reason that we are of opinion that Haskins by reason of his statement to A. F. Hesley above quoted, was estopped afterward to assert any lien he may have had against the horse.

If appellee was induced to purchase the horse by reason of the representation of appellant that he had no lien upon the horse, and the latter should now be permitted in the face thereof to assert a claim inconsistent with such statement, it is manifest that a fraud upon the rights of appellee would be perpetrated. Noble v. Chrisman, 88 Ill. 187; Hefner v. Vandolah, 57 Ill. 520; Kinnear v. Mackey, 85 Ill. 96; Hill v. Blackwelder, 113 Ill. 283; Robbins v. Moore, 129 Ill. 30. Appellant does not in argument contend otherwise, but argues that it is not established by the greater weight of the evidence that such representation was made. Whether or not Haskins made the statement attributed to him was a question for the determination of the trial judge, who heard the evidence, and had the advantage and opportunity of judging of the weight to be given to the testimony of the respective witnesses, from their actions and demeanor while testifying, and his findings are entitled to the same force and effect as the verdict of a jury. Wood v. Price, 46 Ill. 435; Field v. C. and R. I. R. R. Co., 71 Ill. 458; Podolski v. Stone, 186 Ill. 540. Inasmuch as such findings are not clearly and manifestly against the weight of the evidence we are not at liberty to disturb the same.

The judgment of the county court is affirmed.

Affirmed.


text:
    J. C. Pitzer, Appellant, v. W. P. McCune et al., Appellees.
    Negotiable instruments—when provision as to attorney’s fees does not affect negotiability. A promissory note which contains a provision for attorney’s fees in making collection is negotiable.
    , Assumpsit. Appeal from the Circuit Court of Christian county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed December 15, 1909.
    Hogan & Wallace, for appellant.
    J. C. & W. B. McBride, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit by the endorsee against the makers to recover the amount due upon a written instrument in the following words, to wit:

“$1200.00. Bbubakeb, Ill., Jan. 21, 1907.

On or before July 21,,1908, we or either of us promise to pay to Thos. M. Bavin or bearer, at the........ Bank of........twelve hundred dollars, for value received and attorney’s fees with interest at the rate of 6 per cent per annum annually from date until paid without any relief from valuation or appraisement laws.”

The declaration consists of a special count upon the instrument in question and the common counts. In addition to the plea of general issue the defendants filed a special plea alleging that the execution of the instrument in question was procured through fraud and circumvention and without consideration. The instrument described in the declaration was offered by the plaintiff upon the trial, but the court refused to admit the same in evidence, and, no further evidence being offered, directed a verdict for the defendants, upon which judgment was rendered in bar of action and against the plaintiff for costs.

The only question involved on this appeal is whether or not the instrument in question was negotiable. It is urged on behalf of appellees that the .words “and attorney’s fees” rendered it non-negotiable because the words quoted rendered the amount to be paid at maturity uncertain and indefinite. We think. the words in question may properly be construed to refer to such reasonable fees as may be paid by the holders of the note for the necessary services of an attorney in the collection of the note, and that such fees were not to become due and payable until after the note had been collected. Lauferty v. Johnson, 17 Ill. App. 549. Under such construction the promise to pay attorney’s fees was but a promise to do something after the note had matured and did not affect its character prior theréto. It therefore did not affect the negotiability of the note for the reason that such negotiability was for all practical purposes at an end when the note matured. Dorsey v. Wolff, 142 Ill. 589.

The trial court erred in refusing to admit the note in evidence and the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Clay Vancil, Defendant in Error, v. Illinois Collieries Company, Plaintiff in Error.
    1. Masteb and servant—duty of master non-delegable. The master cannot by contract absolve himself from the obligation to furnish his servant with a reasonably safe place to work.
    2. Masteb and servant—when doctrine of assumed rislc does not apply. The doctrine of assumed risk applies only to such risks as are incident to the employment, and does not extend to a risk created by any negligent act or omission to perform a duty by the master, which is not known or cannot be discovered by the servant by the use of due care.
    Action in case for personal injuries. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed December 15, 1909.
    J. C. & W. B. McBride, for plaintiff in error; Conklin & Irwin, of counsel.
    Lawler & Bernard and Robert H. Patton, for defendant in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought for personal injury sustained by defendant in error while working for plaintiff in error taking coal from its mines. The coal was hauled from the mines in cars drawn by mules; the cars were on tracks constructed of oak timbers laid by the miners, who were required by defendant to lay this track through or in the various rooms in which they mined the coal. In the room in which the injury occurred one Edward Hergott, a miner, constructed the track. When laid there were places left in it called “kinks,” occasioned by the oak timbers not being fitted at joints and curves. The cars would jump the track at these places, and to prevent this guardrails were laid. On the day of the accident to plaintiff, or on the preceding day, Hergott placed a guard-rail in this room for the purpose of preventing the cars jumping the track. This guard-rail was put down so that it left a V-shaped space between it and the main rail. In taking the cars out of the mines it was necessary to watch the car and push or “skew” it, as the witnesses term it, at these kinks and joints to keep it from leaving the track. The usual and customary method of doing this was for the driver to face the car, straddle the tail chain and walk backwards, watching the track for joints and kinks, and by taking hold of the car push or “skew” it, so that it would not leave the rails. It was while doing this that plaintiff’s foot was caught between the guard and main rails, the car running on his foot and injuring it.

Plaintiff had been working in other rooms in the mine and had hauled no coal from this particular room after the guard-rail had been placed there by Hergott. On this day he was requested by the manager to stay after the usual quitting time and remove the coal from this room.

The declaration alleges that it was the duty of the master to furnish plaintiff with a reasonably safe place in which to work, and charges a failure to do this, and bases a right of recovery on the alleged failure so to do.

Plaintiff in error defends on the grounds that (1) in its contract with the miners, it hired them to mine the coal at a certain price per ton, and under the contract each miner was, among other things, required to lay the track in his room; (2) that the miner who laid the track was a fellow servant with defendant in error and for any injury caused by the neglect of such duty of such miner under his contract was the act of or omission of a fellow servant, and no recovery can be had therefor; (3) that it was a risk incident to the employment ; (4) that plaintiff had equal or better knowledge of. the condition of the track than defendant, and a better opportunity to know or ascertain its condition, and was not in the exercise of due care for his own safety while so walking backwards on the track in front of the car; (5) that the first instruction given for plaintiff was erroneous.

It was the duty of plaintiff in error to furnish a reasonably safe place for defendant in error to perform his work, and this being a duty owed the servant, the master cannot relieve itself from a liability to perform that duty by contracting with another servant to perform it. If such a contract is made the master is still liable for any negligent act of such servant in the performance of such duty, or a failure to perform it. The question of failure to furnish such reasonably safe place to work was one of fact for the jury, and was properly submitted to it.

By making a contract with the miner Hergott to perform that duty defendant thereby made Hergott a vice-principal, and by reason thereof the question of the negligence of a fellow servant is eliminated, and the doctrine of negligence of a fellow servant has no application.

Plaintiff in error contends that it was a risk of employment assumed by defendant in error. The doctrine of assumed risk applies only to such risks as are incident to the employment, and it does not extend to a risk created by any negligent act or omission to perform a duty by the master, which is not known nor cannot be discovered by the servant by the use of due care. Klofski v. R. R. Supply Co., 235 Ill. 146. The question as to whether plaintiff had knowledge of the construction of this guard-rail, or the manner in which it was laid, or by the use of ordinary care should have known, was submitted to the jury under proper instruction. The evidence in this case justified the jury in finding that the plaintiff had no knowledge of the construction or laying of this guard-rail, and had no opportunity or means of knowing it. It also justifies the finding that the plaintiff was in the exercise of due care. He was pursuing the usual and customary method in vogue in the mine, and the fact that he was blind in one eye would only affect the degree of care required of him, and this was determined by the verdict of the jury.

The only criticism on the instructions is on the first one given for plaintiff, and it is without merit. The counts of the declaration, on which the cause was submitted to the jury, negatived the assumption of risk, and there was no necessity of repeating it in the instruction.

The criticism that the declaration does not aver that the plaintiff had not equal notice with defendant is not well taken. The declaration avers notice of the defect, and what has heretofore been said about the servant who constructed the guard-rail being a vice-principal would apply and would be notice to defendant; it having delegated the work to Hergott, it cannot deny knowledge of what he did.

By the verdict in this case the jury found all questions of fact raised by plaintiff in error against it, and they were fully warranted in so doing by the evidence.

There being no error in th'e instruction, the judgment is affirmed.

Affirmed.


text:
    Mary M. Kepple et al., Appellees, v. Robert F. Crabb, Appellant.
    1. Administration of estates—when petition to compel administrator to inventory assets, lies. A petition lies to compel an administrator to inventory property in his hands which he obtained during the lifetime of the deceased.
    2. Administration of estates—what not essential in proceeding to compel administrator to inventory assets. In such a proceeding the administrator, being a party in interest, is not competent in his own behalf, by virtue of statute, and the court is not required to call and examine him.

      3. Trial—when party not entitled to jury. In a proceeding to compel an administrator to inventory assets a jury is not required, nor is a party to such a proceeding entitled to a trial by jury.
    Petition for citation. Appeal from the Circuit Court of McDonough county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed December 15, 1909.
    Vose & Creel and Neece & Elting, for appellant.
    Charles W. Flack and Albert B. Fuhr, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellees filed a petition in the County Court of McDonough county for citation on appellant, who was administrator of the estate of Elizabeth McCray, deceased. The petition set forth that appellant, as such administrator, filed his inventory in that court, but said inventory did not contain all the property of the deceased that appellant had in his hands or had knowledge of, but that he held in his hands or knew of certain property which he had not accounted for, which belonged to said estate and which he refused to inventory. The petition further alleged that in her lifetime the deceased executed to appellant a power of attorney, giving him full authority to look after, care for and manage her estate, both real and personal, that she then had or might thereafter acquire, and

“To make and enter into any mortgage, release, contract or other obligation in reference thereto, to ask, demand, sue for, recover and receive such sum or sums of money, debts and demands which are now due and owing unto me, or which may become due to me, the said Elizabeth McCray, from any person or persons, and to have, use and take all lawful ways and means in my name, or otherwise for the recovery thereof, and acquittances or other discharges for the same. For me and in my name to make, sell and deliver, loan ol invest any money that I now have or may hereafter acquire, to sell and dispose of any personal property which I now have or may hereafter acquire, to sell and convey by proper deeds of conveyance, at such price and on such terms as he may deem best the south half of the southeast quarter and the northwest quarter of said southeast quarter of section three, in township six north, in range three west of the fourth principal meridian, McDonough county, Illinois, or to rent the same and to loan and invest the proceeds, or any part thereof, in such manner as he may deem best, to provide for and look after the comforts and wants of me during the remainder of my life, and to pay out of any money or moneys, or from the proceeds of any of my property, some suitable person or persons to properly look after, care for and provide for me in a proper and fitting manner giving and granting unto Eobert F. Crabb, said attorney, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes, as I might or could do if personally present.”

The petition further alleged that appellant as such attorney in fact collected rents and had drawn money from the bank that he refused to account for and refused to inventory, and prayed that he be required to inventory and account for the same. On this petition a citation was issued. Appellant filed his answer in the county court and the matter was heard by that court and a decree rendered against appellant finding that he had moneys belonging to said estate and directing that he account for the same and make inventory thereof.

From that decree appellant appealed to the Circuit Court. In that court on his motion appellant was permitted to withdraw his answer. After the answer was withdrawn he entered a motion to quash the petition, which motion was overruled by the Circuit Court, and the cause was heard on appeal in that court without a jury. The decree entered by that court finds that under his power of attorney appellant undertook to conduct and manage the business of the deceased in her lifetime, and while doing so received various sums 'of money for rents of lands and other sources; that he had paid out certain sums for the keeping’ of de- . ceased during her lifetime, and for other matters authorized under said power of attorney, and that he still had in his hands and unaccounted for as such attorney in fact the sum of $5,502.82, and decreed that he inventory the same as property of the estate and account therefor. A personal judgment against appellant was rendered for the costs of the proceeding.

The principal grounds relied upon by appellant for a reversal of this decree are:

First. That a petition of this nature will not lie to compel an administrator to inventory property in his hands which he obtained during the lifetime of the deceased; that it only lies to recover property of which the administrator was ignorant; and that the citation was improperly issued in this cause.

Second. That this is a summary proceeding and deprives the appellant of the right of a trial by jury; that he has the right of having the matter submitted to a jury as to whether the property in his hands belongs to him or to the estate.

Third. That the court at the hearing of this cause should have placed appellant on the stand as a witness and required him to be examined. All the other material points raised are embodied in these three.

Sections 51 and 52, of chapter 3, Revised Statutes of this state, are as follows:

51. “Whenever letters testamentary, of administration, or of collection are granted, the executor or administrator shall make out a full and perfect inventory of all such real and personal estate, or the proceeds thereof, as are committed to his superintendence and management, and as shall come to his hands, possession or lmo%oledge, describing the quantity, situation and title of the real estate, and particularly specifying the nature and amount of all annuities, rents, goods, chattels, rights and credits and money on hand, and whether the credits are good, doubtful or desperate; which said inventory shall be returned to the office of the clerk of the county court, within three months from the date of the letters testamentary or of administration. ’5

52. “If, after making the first inventory, any real or personal estate of the deceased comes to his possession or knowledge, he shall file a similar additional inventory thereof.”

Section 81, of same chapter, provides for the issuance of a citation.

Under sections 51 and 52, supra, it became the duty of the administrator to inventory all property of which he had knowledge and which belonged to the estate, tohether then in his possession or not. The method of procedure in issuing a citation upon a proper showing by petition, as was done in this case, has been sanctioned by the courts in numerous cases, and it is the proper method of procedure. In the case of Martin v. Martin, 170 Ill. 18, the same question was raised and the same procedure was had by citation. That case determines the question of practice raised herein, and the Circuit Court did not commit any error in denying the motion of the appellant to quash the petition and to proceed with the hearing. No answer was required, as in this character of cases no pleadings are necessary. The court obtains jurisdiction to act on the filing of the petition, as was done in this case. The pleadings are summary in character, and the court for the purpose of determining the rights of the parties, had full chancery powers and jurisdiction, and the proceeding is had under the rules of chancery practice.

The case of Martin v. Martin, supra, determines the question of the right of trial by jury. The court in that opinion refers to the case of People v. Abbott, 105 Ill. 588, wherein it was held that, even if it were proved that property of the deceased was in the possession of another party, the court, in the summary proceeding provided for in the Administration Act, is not bound to order it delivered to the executor or to make any specific order, but is vested with discretion, and should look beyond the mere legal right and protect equitable rights. In such a case of the exercise of equitable, jurisdiction and discretionary powers a party is not entitled to a trial by jury.

The other question raised, that the trial court erred in not requiring the examination of appellant upon the hearing, is without merit. There is nothing which compels the court to examine a party whom it is claimed has property in his possession which belongs to the estate and for which he refuses to account. Such a party would not be. a competent witness in his own behalf, and to hold that the court was required to examine him and receive his testimony would render that provision of the statute nugatory and of no effect.

The funds which.came into the hands of appellant in this case were received by him in a trust capacity and were held by him as a trustee during the lifetime of the deceased, and, having obtained these funds in such a capacity, he is and should be required to account for the same. The decree rendered by the Circuit Court is fully warranted and justified by the evidence, and it is afirmed.

Affirmed.