text:
    People of the State of Illinois, ex rel. C. H. Payson et al., Plaintiffs in Error, v. Wendell P. Kay et al., Defendants in Error.
    Gen. No. 5245.

      Mandamus—when peremptory writ not granted. A peremptory writ of mandamus is never awarded to settle mere abstract rights unaccompanied by practical and substantial benefits.
    Mandamus. Error to the Circuit Court of Iroquois county; the Hon. Albebt O. Marshall, Judge, presiding. Heard in this court at the October term, 1909.
    Writ dismissed.
    Opinion filed March 11, 1910.
    Statement by the Court. August Henning, W. E. Skiff and F. H. Higgins, three of the aldermen of the city of Watseka, and C. H. Payson as relators on March 26, 1909, filed a petition in the Circuit Court of Iroquois county for a writ of mandamus against W. P. Kay as Mayor of Watseka and C. H. Parker, W. F. Fox and J. E. Wills, as aldermen of Watseka.
    The petitioners allege that they.are citizens, taxpayers and voters of the city of Watseka; that in 1872 the city was by a vote of the citizens, incorporated under chapter 24 of the Statutes of Illinois, and that a majority of the votes cast at that election were in favor of minority representation in the city council; that the city was divided into two wards, each having three aldermen; that the present mayor and aider-men were elected on the third Tuesday of April, 1907, and are still holding such offices; that on February 3, 1909, a petition signed by legal voters equal to one-eighth of the legal votes cast at the preceding general election was presented to the city council, praying that the question of equal representation in electing members of the city council be submitted to the legal voters; that the city council granted the prayer of the petition and appointed February 23, 1909, as the time for holding an election on that question; that a notice of said election was given and said election held and a majority of the ballots at said election was cast in favor of adopting equal representation; that the notice for said election was published in a newspaper published in the city of Watseka on February 3, 1909, before the petition was presented to the city council and in advance of the meeting of the city council which granted the prayer of the petition; that on February 13, 1909, printed notices, that bore the attestation of the city clerk were posted at each of the polling places to the effect that on February 23, 1909, an election would be held on the question of adopting the plan of equal representation, and no other notices were given, and that said notices were void and insufficient to give validity to said election; that the form of the ballot was not in accordance with the provisions of the statute, giving the form in haec verba, and that the ballots were void; that the election was held and a majority of the said void ballots was cast in favor of equal representation; that the vote ■ was canvassed by the city council on February 23, 1909, and it was declared that equal representation had been adopted and the result of said canvass was entered on the city journal; that on March 1, 1909, the city council divided the city into three wards and posted notices for the regular annual city election of city officers to be held on April 20, 1909, and designated one place in each ward for holding said election, and on March 18, 1909, the city clerk posted notices for said election of April 20, 1909; that said apportionment was without authority of law; that on March 23, 1909, the three relators, who are aldermen, issued a call for a special meeting of the city council to be held on March 24, 1909, in the matter of designating places at which the election should be held on April 20; that the special meeting was held and a resolution to name polling places in each of two wards into which the city had previously been apportioned was offered; that the relator aldermen voted in favor of it and the defendants who are aldermen, against it, and the vote being a tie the mayor voted against it; that a resolution was then offered fixing a place for holding said election in each of said three wards and naming judges and clerks, and that the aldermen who are relators voted against it and the aldermen who are defendants voted for it, and there being a tie vote the mayor voted for it and it was declared adopted; that said designating of three places, etc., is void; that petitioners are in favor of two voting places and have demanded of defendants to join relators who are aldermen in calling an election under the order of things as they were prior to March 1st, and the defendants refuse, etc. The petition prays that a writ of mandamus be issued to the defendants commanding the defendants as present members of the city council of the city of Watseka to join with petitioners, Henning, Skiff and Higgins, to designate two places in said city, one in each ward, as they were apportioned prior to March 1, 1909, and to join with said petitioners, Henning, Skiff and Higgins, in appointing necessary judges and clerks for the election to be held April 20, 1909. The defendants filed a demurrer to the petition, which on April 5, 1909, was sustained and a judgment was rendered against petitioners for costs. Petitioners prayed an appeal which, however, was not perfected, and on August 27, 1909, petitioners sued out a writ of error to the October term of this court to review the said judgment.

      C. H. Payson, August Henning and W. E. Skiff, for plaintiffs in error.
    Eugene P. Morris and O. F. Morgan, for defendants in error.
   Mr. Justice Thompson

delivered the opinion of the court.

The writ of error was not sued out in this case until August, 1909, several months after the election in reference to which it was sought by the petition to compel the defendants in error as officers of the city to vote with the aldermen who aré relators. It was conceded by plaintiff in error in oral argument in this court that an election was held on April 20, 1909, and that none of the parties to this suit, either relators or defendants in error, at the time the writ of error was sued out, were officers of the city; they are all out of office. Without the admission, the petition alleges that they were all elected in April, 1907, and the statute makes their term of office two years, so that their term of office expired with the holding of the election in April, 1909. The prayer of the petition only relates to the election to be held on April 20, 1909. That period has passed. No mandamus can now issue to call that election in any particular manner. It is well settled that a peremptory writ of mandamus will not be awarded when the right sought to be enforced is an abstract right, the enforcement of which by some change of circumstances since the commencement of the suit can be of no substantial or practical benefit to the petitioner. The question sought to be litigated by this writ of error, which is a new suit (Singer & Talcott Stone Co. v. Hutchinson, 176 Ill. 48; Helbig v. Citizens Ins. Co., 234 Ill. 257; International Bank v. Jenkins, 107 Ill. 291; Clowry v. Holmes, 238 Ill. 577), has now become a mere academic question or question of law, the decision of which would be fruitless and unavailing to petitioners, and might embarrass the trial of some proper action brought to test the legality of the election of February 23, 1909. A peremptory writ of mandamus is never awarded to settle mere abstract rights, unaccompanied by practical or substantial benefits. North v. Trustees, etc., 137 Ill. 296; Cristman v. Peck, 90 Ill. 150; Grormley v. Day, 114 Ill. 185; People ex rel. v. Olsen, County Clerk, 215 Ill. 620; People ex rel. v. Rose, 81 Ill. App. 387; Zuccone v. Halverson, 92 Ill. App. 661; Board of Education v. Bolton, 85 Ill. App. 92.

It is not necessary to discuss the question whether the relators can in this proceeding try the validity of the election of February 23, 1909, since the prosecution of this writ of error cannot be of any practical benefit to the relators. The writ of error is dismissed.

Writ dismissed.


source: Caselaw Access Project

author: Me. Justice Thompson

license: Public Domain

text:
    The People of the State of Illinois, Appellants, v. Hugh L. Hart et al., Appellees.
    Gen. No. 5249.

      Injunctions—When hill does not state case justifying the restraining of the obstruction of a street by hacks, etc. Held, that the hill of complaint in this case did not state such a case as showed that the use of a portion of a street as a hack stand, etc., was unlawful or constituted a nuisance, and that the dismissal of the hill was proper.
    Bill in equity. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Robert Scholes, for appellant; Kirk & Shurtleff, of counsel.

      Geanville A. Hultz and C. E. Birkett, for appellees.
   Me. Justice Thompson

delivered the opinion of the court.

The People of the State of Illinois, on the relation of the state’s attorney of Peoria county on behalf of the public, and also upon the relation of one David M. Mayer, a citizen and resident of the city of Peoria who appeared in his own behalf, as well as in behalf of other residents of the city of Peoria, filed a bill in equity against Hugh L; Hart and eighty-seven other defendants, praying that the defendants and all other persons be restrained from obstructing Adams and Hamilton streets, in front of and adjacent to the court house square in the city of Peoria by using that locality as a hack stand.

The bill alleges the platting of the city and the dedication of the streets; that Adams street runs northeasterly and southwesterly through the heart of the city of Peoria, and Hamilton street crosses Adams street at right angles; that both these streets are main public highways and intersect each other at the southeasterly corner of the public square, known as the court house square of the city of Peoria, in the heart of the city; that in addition to constant team and wagon traffic, each is traversed by street cars; that the general public and people of the city have now and ever had the right to the unobstructed use and enjoyment of passage of the full width of said streets as public highways; that the defendants and other parties unknown by name, have been unlawfully using and obstructing said streets adjacent to the court house square for their own private business in carrying on their several vocations as hackmen, cabmen, draymen and expressmen, to the injury, inconvenience, annoyance and obstruction of the public, by standing, stationing and storing their several respective horses and vehicles, when the same are idle while waiting for and soliciting patronage in their respective lines of business, and that said streets at the places named are made a stand for hacks, express wagons, etc., amounting in law to a public nuisance; that such private use and obstruction of said streets has been acquiesced in for so long a time that it would he inequitable to institute legal proceedings of a criminal nature for the recovery of a fine against any of the persons so using said streets, and such causes of action would necessitate a multiplicity of suits and a large expenditure of public money. The bill prays for a writ of injunction restraining the defendants from occupying or obstructing said highways for any private. uses. The defendants demurred to the bill, and for special causes of demurrer assigned that there is a complete and adequate remedy at law, and that the hill fails to allege any injuries to property, the public welfare, or the public in general, and that under the powers given to cities the city of Peoria has jurisdiction and complete control of the streets. The court sustained the demurrer; and, the complainants abiding by their bill, the bill was dismissed for want of equity, and the complainants appeal.

The appellants based their cause of action for the abatement of the alleged nuisance on section 221 of the criminal code, which makes it a public nuisance to obstruct or encroach upon public highways, streets, etc. The demurrer admits only such facts as are well pleaded. The bill, while alleging that said streets are in the heart of the city of Peoria, alleges that defendants are obstructing said streets adjacent to the court house square for their own private use by maintaining a hack stand on said streets adjacent to the court house square, to the detriment and inconvenience of the public. This allegation is simply the allegation of a conclusion, and does not allege any facts which show any inconvenience ór detriment either to the public or to the owners of adjacent property.

There is neither any allegation as to the width of the streets or that there is not ample room and space remaining for any person desiring to use said street; neither is any fact alleged showing that any person is injured or incommoded by the hack stand at that place, nor is it alleged that the acts of the defendants are not with the permission or consent of the city. There is no allegation of any taking or any appropriation of any part of the estate itself, in whole or in part, and the injury complained of is the infliction of damages in respect to the complete enjoyment thereof by that part of the public other than the defendants. The fee of the streets is in the city, in trust for the use of the public; the city may allow any use of them consistent with the public objects for which they are held, and may permit vaults or even rent space beneath the surface for vaults, etc. Gregsten v. City of Chicago, 145 Ill. 451. The streets are for the use of the public in matters pertaining to public travel, and hacks and cabs are public travel conveniences. Paragraph 63, section 9, of the City and Village Act, gives to cities the power and rig’ht to regulate the use of streets. This is not an abdication by the state of its authority to enforce the law, but gives to the city the right to control the use of streets in accordance with law. Section 10 of the same ■ paragraph gives to cities and villages the right to prevent and remove encroachments or obstructions from streets. In the case of Penn. Co. v. City of Chicago, 181 Ill. 289, it was held that a city has no authority to grant the exclusive use of streets to any private person or for any private purposes, but must hold and control them exclusively for public use, and that city councils may establish hack stands in a public street in front of railroad depots, which are in the nature of public buildings, so long as access to and egress from the buildings are not prejudicially interfered with, and that the use of a street with the consent or acquiescence of the municipal authorities cannot be enjoined at the suit of an abutting owner, nor can he invoke the remedy of injunction for the protection of the public and under that guise seek to protect himself. The use of a street by hackmen would not appear to be any different from the use of it by the owner of a private carriage; if the driver of the hack may be enjoined from standing on the street with his hack by the court house square the driver of an omnibus or cab might be enjoined from standing at the entrance to a hotel at certain times when he is accustomed to receive or unload passengers to and from trains. The statute with reference to obstructing or encroaching upon streets has reference to a more permanent obstruction than that complained of or by some immovable object. A conveyance for use of the public with the horse attached, accompanied by the driver, simply waiting for patronage and not unreasonably interfering with public travel, is not within the meaning of the statute.

The allegation that a hack stand is a nuisance is an allegation of a conclusion, which requires the further allegation of such facts as will show that the defendants interrupt or incommode persons having-occasion to use the streets. There is no statement of facts showing any continued hindrances or obstruction to public travel or substantial and consequential injury to the public use of the street.

Appellants allege that defendants have so long used the streets adjacent to the court house square for a hack stand, that it would be inequitable to prosecute them at law under the statute. If the defendants by their acts infringe upon the criminal code, the facts that there may be many of them, or that they have done it for a long time, do not appeal to us as reasons for invoking the power of a court of chancery instead of a court of law. There is no allegation of danger of any irreparable injury being inflicted upon the appellants by the alleged action of the appellees and there is no reason why the remedial power of a court of chancery should be invoked. The appellants should enforce the criminal code in the proper manner, if it is being violated by appellees, in a court of law, where the appellees may have their right of trial by jury. The decree is affirmed.

Affirmed.


author: Mr. Justice Thompson

text:
    Henry A. Truitt, Appellant, v. Mabel Truitt, Appellee.
    Gen. No. 5253.

      Divorce—when condonation of adultery not established. To establish condonation by the husband of adulterous conduct by the wife a reconciliation followed by cohabitation must be shown.
    Divorce. Appeal from the Circuit Court of La Salle county; the Hon. R. M. Skinner, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    Edward Myebs and McDougall & Chapman, for appellant.
    William Eoe, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Henry A. Truitt filed a bill against his wife, Mabel Truitt, charging her with adultery with William H. Parrish and praying for a divorce and the custody of their minor children. The defendant answered the bill by denying the charges against her and filed a cross-bill praying for a divorce from her husband on the ground of extreme and repeated cruelty. The defendant to the cross-bill answered it, denying the allegations made against him. The case was tried by the court without a jury. The court found that previous to the filing of the bill the defendant' in the original bill had committed adultery as charged in the bill, but that the offense had been condoned by the husband; the court also found that there was no evidence to sustain any of the allegations of the cross-bill. A decree was entered dismissing both bills for want of equity and ordering that Henry A. Truitt pay Mabel Truitt the sum of thirty-five dollars for her reasonable solicitor’s fees. Henry A. Truitt appeals from that portion of the decree which finds that he had condoned the adultery of the wife and dismisses the original bill.

Neither party has appealed from that part of the decree finding the appellee guilty of adultery, although counsel for appellee insists in his argument that the charge was not proved. The evidence shows that the parties were married at Toluca in January, 1899, and have two children, a girl aged six years and a boy of the age of four years; that in 1908, and until February 27, 1909, they lived in Streator where appellant was employed as a laborer in a tile factory; that prior to February 27, 1909, Parrish had been a boarder with the family for several months. On February 27, 1909, while appellant was at work, appellee left their home, leaving a note in the house for the husband stating she had gone to her folks in California and would not return, but in fact she took the children and went to Kankakee and there obtained a room and board under the name of Mabel Hamilton which she had assumed. Parrish knew she had gone to Kankakee, visited her there, furnished her with money and carried on a correspondence with her, but told appellant that appellee had gone to California. About two weeks after the desertion trouble arose between appellant and Parrish; appellant caused the arrest of Parrish and on a trial before a justice, Parrish told that appellee with the children was at Kankakee. The satchel of Parrish was searched and in it were found several letters written to him by appellee under her assumed name. The appellant then went to Kankakee and with the aid of an officer secured his children and took them back to Streator. Appellee also returned to Streator and the parties met in an attorney’s office where an agreement was made under which they were to live together again, and as a pledge that she would be true to her marriage vows the appellee agreed to give the custody of the children to appellant in case she should again be unfaithful. The evening the agreement was made she said to appellant that there was nothing in the agreement to prevent her going to her folks in California. The letters written by appellee to Parrish found in his satchel are very ardent and contain such expressions as “Dear Will.” “Oh dearest of all lovers, I hope you are. I hope we can be near each other soon.” “To my precious lover from your loving girl, Mabel,” etc., etc. Several days after her return even more ardent and gushing letters from Parrish to her were found in her trunk by appellant. There is clear proof of the adulterous relations of appellee with Parrish in their correspond'ence and actions, although appellee while a witness in her own behalf denied that she was guilty of the offense charged against her, but made no reasonable explanation of the letters she had written to Parrish.

The defense of condonation is also urged as a reason why a divorce should not be granted because of her misconduct. After her return she stayed at the house of appellant about a week. Appellant testifies they did not live together as man and wife and that they never occupied the same room after he heard of her adultery with Parrish; that he occupied a bed with one of the children and that she occupied another bed with the other child. She testifies that after her return they occupied separate beds part of the time but that they occupied the same bed part of the time. After about a week, she again left appellant leaving the children with him, and telling him that she loved Parrish and could not help it. Parrish at this time was in jail, so that she could not go to him, but went to her relatives. There is nothing in the record to cast any doubt on the truthfulness of appellant’s testimony, while she is thoroughly discredited and convicted of perjury. Condonation depends upon proof of the resumption of marital cohabitation. Her veracity being so clearly impeached the testimony of appellant should be believed as against her discredited testimony. Condonation is the forgiveness of misconduct constituting a cause for divorce upon the condition that the offender will not in future be guilty of such misconduct. 9 Am. & Eng. Encyc. of Law, 822 (2nd Ed.). “Forgiveness which is to take away the husband’s right to a divorce must not fall short of reconciliation, and that this must be shown by the reinstatement of the wife in her former position, which renders proof of conjugal cohabitation, or the restitution of conjugal rights, necessary.” Keats v. Keats, 1 Sw. & Tr. 334. A return to cohabitation induced by false assurances will not constitute condo-nation where the innocent party leaves on discovery of the fraud. Farnham v. Farnham, 73 Ill. 497. It clearly appears from the evidence that she never repented of her misconduct. Her statement when she left the last time that she loved Parrish and could not help it, with the letters from Parrish to her found in her possession, and the testimony of appellant that they did not resume the marital relations, all show that there was no condonation. The decree will be reversed and the cause remanded with instructions to the trial court to enter a decree of divorce in favor of appellant upon the ground of adultery, without any allowance of expense money to appellee, and giving the custody of the children to appellant with suitable provision for appellee to see them.

Reversed and remanded with directions.


text:
    William H. Harrison, Appellee, v. Marcus R. Thackaberry, Appellant.
    Gen. No. 5256.
    1. Appeals and eeboes—upon what assignments cannot he predicated. A party can only complain of error that affects his own rights and not such as only affects the rights of others.
    2. Appeals and eeboes—when admission of incompetent evidence will not reverse. Where an action at law is tried by the court without a jury the admission of immaterial or incompetent evidence over objection is not a ground for reversal when the record shows the judgment of the trial court is sustained by competent evidence.
    3. Venue—in transitory actions. Except in local actions a party may by statute in this State be sued where he resides or may be found.
    4. Pleading—when allegation under videlicet insufficient. If-time is material an allegation under a videlicet is insufficient as an allegation so made is not definite and certain.
    5. Pleading—when allegation of consideration insufficient. If the consideration is material the facts setting up of what the consideration consisted should be alleged and not the mere statement of the conclusion made that there was a consideration.
    6. Pleading—when special pleas had. Special pleas which purport to answer the entire declaration but which only answer one count thereof, are bad.
    7. Pleading—how release of surety must he set up. Notwithstanding the earlier decisions the rule now is that the defense of the release of a surety by an extension of time to the principal must be specially pleaded to let in the evidence on that question if it is objected to.
    8. Suretyship—when extension of time of payment will not release surety. An extension of time granted to the principal to release a surety must be for a definite period based upon a legal consideration. A payment of what is due is not such a consideration nor is a mere promise of indulgence on a payment of interest accrued on the note, such an extension as will release a surety.
    9. Amendments and jeofails—when refusal of leave to file additional pleas will not reverse. If a party upon a trial had the benefit of all the defenses relied upon in the pleas sought to be filed, the refusal of the court to permit them to be filed will not reverse.
    10. Depositions—power of party to correct. When a deposition is read over to a witness before he signs it, he has the right to correct his answers.

      11. Witnesses—what method of examination appropriate if hearing is defective. The testimony of a witness hard of hearing may he elicited by whatever means are necessary and best suited to obtain accurate information.
    12. Evidence—what competent to aid construction of letter. It is proper for a party to testify to the facts and circumstances attending the writing of a letter in order that the court may construe it in the light of all the facts surrounding it.
    13. Evidence—what competent to aid construction of letter. Where a letter is not contractual it is permissible to explain and construe a statement therein by attending circumstances or show that it originated in some mistake, where it is not the basis of the action or the defense.
    Assumpsit. Appeal from the Circuit Court of Whiteside county; the Hon. Fbank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Statement by the Court. This is an action of assumpsit brought in the Circuit Court of Whiteside county by William H. Harrison on a promissory note for $5,423.06 dated May 22, 1896, payable on or before five years after date with interest at the rate of six per cent per annum executed by Milton L. Thackaberry and Marcus B. Thackaberry. A praecipe for a summons to the sheriff of Whiteside county for Milton L. Thackaberry and Marcus B. Thackaberry was filed September 30, 1909, returnable to the January term, 1910. The summons was issued on September 30, against the two Thackaberrys, and was served on Marcus B. Thackaberry October 6, 1908, and a return of “not found” as to Milton L. Thackaberry was made October 12, 1908, but the summons was not filed until January 4, 1909. On October 13, a praecipe was filed for a summons for Milton L. Thackaberry to the sheriff of Cook county. This summons was served on October 14, 1908. The declaration consisted of a special count on the note declaring against the defendants- jointly and the common counts declaring against them jointly and severally. At the term to which the summonses were returnable, Marcus B. Thackaberry filed a plea in abatement averring that he was at the time the suit was brought and still is a resident of Bureau county, Illinois, and that service was had upon him while temporarily in Whiteside county, and that Milton L. Thackaberry was when the suit was brought and still is a resident of Cook county, and praying judgment if the court will take cognizance of the action. The plaintiff demurred to the plea in abatement and filed a motion to quash the summons to Cook county and the return thereon, for the reason that at the time the summons was served on Marcus R. Thackaberry in Cook county he was not residing in Whiteside county. The summons to Cook county and the return were quashed, and the demurrer to the plea in abatement was sustained. Marcus R. Thackaberry thereupon filed a plea of the general issue and two special pleas, averring that the note sued on was executed by Marcus R. Thackaberry as surety for Milton L. Thackaberry of which the plaintiff had notice, and that the plaintiff after the note became due had extended the time of payment, whereby the surety was released. Issue was joined on the general issue, and a demurrer was filed to the special pleas, stating, as special causes, that the special pleas amounted to the general issue and that the pleas do not aver any consideration or an extension to a definite time. The demurrer was sustained. Afterwards the -defendant made a motion for leave to file three special pleas of the same character as the former special pleas; this motion was overruled. The defendant then moved for leave to file four other special pleas, which motion was overruled for the reason “that all matters set up in the special pleas can be proven under the general issue.” By agreement the case was tried by the court without a jury. The court found for the plaintiff and rendered judgment for $8,187. Marcus R. Thackaberry appeals from that judgment.

      C. L. and C. E. Sheldon, for appellant.
    Stager & Stager, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

It is assigned for error that the court erred in quashing the summons served upon Milton L. Thackaherry in Cook county. That is a matter in no way prejudicial to appellant. A party can only complain of error that affects his own rights and not such as only affects the rights of others. Grier v. Puterbaugh, 108 Ill. 602; Schwartz v. Bitter, 186 Ill. 209; Chicago City Ry. Co. v. Lace, 62 Ill. App. 535; Barnard v. Reynolds, 49 Ill. App. 596.

It is also assigned for error that the court erred in sustaining the demurrer to the plea in abatement. The plea is not abstracted as required by the rules of this court, but nevertheless we have considered the assignment. The plea is a plea to the jurisdiction and prays judgment if the court will take cognizance of the action. Under section 6 of the Practice Act of 1907, which is similar to section 2 of the Practice Act of 1872, a defendant may be sued where he resides or may be found, except in local actions. The declaration declared against the defendants therein named jointly and severally. The summons was to White-side county in which the suit was pending and where appellant was found, and the service is within the statute. The demurrer to the plea to the jurisdiction was properly sustained. Sherburne v. Hyde, 185 Ill. 580; Cassem v. Galvin, 158 Ill. 30; Damron v. Sweetser, Caldwell & Co., 16 Ill. App. 339.

It is contended that the court erred in sustaining the demurrer to the first two special pleas, and in refusing leave to file other special pleas, attempting to set up the defense of a release of appellant as surety to Milton L. Thackaberry by an extension of time given to the principal debtor. The first special plea averred that the plaintiff on, to wit, May 5, 1903, at the request of Milton L. Thackaberry, for a good ■ and valuable consideration, agreed to give an extension until, to wit, the fall of 1903. The time of the extension was a material fact; the extension, being averred under a videlicet, is not pleaded to a time certain or definite. 1 Chitty on Pleading 318; Rose v. Mutual Life Ins. Co., 144 Ill. App. 434, and cases therein cited. The plea also should have averred the facts constituting the consideration; it averred a conclusion instead of a fact, and was defective in that regard. The second special plea averred that for the consideration of $1,000 paid by Milton L. Thackaberry to the plaintiff, the plaintiff gave Milton L. Thackaberry further time until such time as Milton L. Thackaberry should wish to pay the note. If the $1,000 was paid on the note then past due, it was no consideration for the extension, and the extension, if one was given, was not for a definite time. A payment on what is due is not a consideration for an extension of time, and a mere promise of indulgence on the payment of interest due, at the rate specified in the note, is not such an agreement to extend the time as will release a surety. Crossman v. Wohlleben, 90 Ill. 537; Higgins v. McPherson, 118 Ill. App. 464; Heenan v. Howard, 81 Ill. App. 629. To release a surety the extension of time must be upon a new and valid consideration; it is essential that the agreement be such that neither the debtor can compel the creditor to accept the payment of the debt, nor can the creditor enforce payment before the agreed time has expired; the contract must be mutual. Crossman v. Wohlleben, supra, Moyses v. Schendorf, 238 Ill. 232; English v. Landon, 181 Ill. 614; Reynolds v. Barnard, 36 Ill. App. 218 (same case 49 Ill. App. 596). Pleadings are always construed most strongly against the pleader when tested by a demurrer-; therefore the demurrer was properly sustained because of the indefiniteness and uncertainty of the plea and the averring of conclusions when the facts should have been pleaded.

The three special pleas that the court refused leave to file contained the same defects, and were bad for the same reasons as the first and second pleas. The four pleas that the court refused leave to file, were bad for the same reasons as the first and second. They were subject to the further objections that each averred “that the several supposed causes of action in said declaration mentioned are one and the same, to wit, the supposed cause of action in said declaration mentioned.” They fail to state that the sole cause of action is that in the first count mentioned; they then attempt to plead an extension of time on the note in the first count mentioned. The pleas pretend to answer the whole declaration but only answer the first count, while the declaration contained a special count on the note and the common counts. The pleas were therefore bad for the reason they were not limited to the first count, and while professing to answer the whole declaration, answered only the special count. However, we do not hold that the court could properly pass on the validity of the pleas on the motion for leave to file them, because that question has not been presented, but the parties have argued their validity the same as if they had been tested by a demurrer.

The record shows that the court refused leave to file the last four pleas on the theory that they only amounted to the general issue, and that all the proof that could be introduced under them, could be introduced under the general issue. The earlier cases in this state hold that under the general issue, in an action on the case, the defendant is permitted to give in evidence any matter which shows that the cause of action has been discharged or a release, a former recovery, a satisfaction, or any other matter ex post facto which shows that in equity and good conscience the plaintiff ought not to recover. Warner v. Crane, 20 Ill. 148; City of Chicago v. Babcock, 143 Ill. 358; Papke v. Hammond Co., 192 Ill. 631. The rule, however, now is, that the defense of a release of the surety by an extension of time to the principal must be specially pleaded to let in the evidence on that question, if it is objected to. Commercial Loan & Trust Co. v. Mailers, 237 Ill. 119. While the court may not have given a correct reason for refusing to permit the plea to be filed, yet the record shows that the appellant offered his evidence on the question of extension of time of payment and that it was admitted, and that all the proof the parties presented which would have been admissible to sustain the pleas, if issues had been 0 made upon them, was admitted; therefore if the court erred in refusing leave to file the pleas, still the appellant was not harmed by the ruling of the court. Hartford Fire Ins. Co. v. Olcott, 97 Ill. 439; Curtiss v. Martin, 20 Ill. 557; Jones v. Council Bluffs Bank, 34 Ill. 313; Tokheim Mfg. Co. v. Stoyles, 142 Ill. App. 198.

It is contended that the note was not competent evidence against appellant because Milton L. Thackaberry was not lawfully served with process. The note is joint and several by virtue of the statute; the special count alleges a joint liability; the common counts allege a joint and several liability; the signatures to the note were proven; the suit being against both appellant and Milton L. Thackaberry and the summons having been quashed as to Milton L. Thackaberry the appellee had the right to proceed to judgment against the appellant, who was properly served with process, and after judgment against appellant, appellee could have a scire facias against Milton L. Thackaberry provided he could get service on him in Whiteside county.

The deposition of Marcus R Thackaberry was taken in shorthand and afterwards written out on a typewriter and read to him. He was asked whether he had not written to. counsel for appellant in relation to the defense in the suit, to which he answered “I may have done so.” When the deposition was read to him, in the absence of counsel for the parties before he signed and swore to it, he added the words, “but I do not think so.” On motion of appellee this addition to the answer was stricken out and that action of the court is assigned for error. When a deposition is read over to a witness, before he signs it, he has the right to correct his answers. It is the duty of counsel to be present until the deposition is completed and if they depart before it is thus completed, they cannot deprive the witness of the right to correct it. A witness cannot be compelled to swear to an answer which in his judgment is incorrect. It was error to strike out that part of the answer, but the subject-matter stricken out was immaterial and the action of the court was harmless error.

The appellee was exceedingly hard of hearing, and when examined as a witness, his counsel, professing to be unable to make him hear, asked permission of the court, which was granted, to write the questions and present them to the witness that he might answer after reading the questions., It is urged that such a manner of examining a witness permitted the witness to be led by counsel and was erroneous. The testimony of such a witness may be elicited by whatever means are necessary and best suited to obtain accurate information. 8 Am. & Eng. Encyc. of Law, 844 (2nd Ed.); 3 Encyc. of Ev. 201.

The record disclosed that the family of appellee, and other parties having business with him, communicated with him in that manner, and that counsel for appellant in cross-examining the witness, being unable to make him hear, resorted to the same method and wrote out his questions. There was no error in the manner of the examination of the witness.

The only defense sought to be interposed by appellant was that appellant was a surety on the note and had been released by the appellee extending the time of payment without the consent of appellant. Appellee is a storekeeper at Tampico, in Whiteside county. Appellant is a farmer living in Bureau county but trading at Tampico. Milton L. Thackaberry is a lawyer in Chicago. There is no question but what appellant was a surety and that appellee knew that fact. Appellant introduced in evidence an unsigned copy of a letter-press copy of a letter written by Milton L. Thackaberry on May 5, 1903, to. appellee in which he said:

“A few days since, my brother was here and talked with me in relation to the note which you hold. Would you be willing to extend the note on payment of $1,000 and reduce the rate of interest to 5%, or if this is not satisfactory, would you be willing to accept $1,000 and let the note run as it is so it can be paid at any time hereafter? I have prospect of getting a sale of some real estate closed up and then will be in a position to pay the entire amount.”

On May 6th, the appellee replied to the foregoing letter:

“Tours of the 5th at hand; I could not'reduce the int. on the note you speak of, as just now money is worth 7% to me, but if it will suit you better you can pay $1,000 now, and $1,000 in the fall if you wish to and let it run as at present. Money seems to be rather scarce down this way so far this year; guess it all went into sale notes.”

On May 16, Milton L. Thackaberry sent appellee a check for $500 and on May 19th he sent another check for $500. He made no reply to the letter of May 6, but paid $1,000 and the note ran on as it then was —past due. Appellant or Milton L. Thackaberry could have paid the note or the appellee could have maintained a suit to collect it at any time. All that this correspondence proves is that Milton L. Thackaberry under the second proposition in his letter of May 5th paid $1,000 “and let the note run as it is, so it can be paid at any time hereafter. ’ ’ Milton L. Thackaberry testified that after sending the last $500 he was in appellee’s store at Tampico and said to him: “I want yon to extend that note a year at the same rate. I will keep it for another year at the same rate if that is all right to yon.” He said, “That is all right; keep it for a year at the same rate.” Appellant also testified that appellee told him near appellee’s store that he had extended the note for a year. These statements are denied by appellee, although appellee admits telling Marcus L. Thackaberry that Milton L. Thackaberry had paid $1,000 and that the note could run but denied that the time was extended for any fixed time. Both the Thackaberrys testified that no one was present when they had the conversations, and there are some things in the evidence that tend to cast a doubt upon their testimony.

On April 14, 1904, appellee wrote to Milton L. Thackaberry:

“About May 5th the year will be up on your note. If you do not wish to take it all up at that time, I would like to have a thousand or fifteen hundred paid on it. Cash is rather scarce down this way, has been for nearly a year.”

It is contended that the letter of April 14th, referred to an"extension of the note for a year and corroborates the Thackaberrys. It may be that it does, but the note is dated May 22nd, and there is no mention in the letter of any extension. The conversations vary from the pleas which appellant filed January 27th and the three pleas he desired to file April 5, 1909, both as to the time of making the extension, the consideration and the length of time of the extension. It was not until May 18, 1909, that pleadings were presented that the evidence tends to support. Milton L. Thackaberry is a lawyer and if there was an extension it was made with him and he gave the information on which the pleas were drawn and it is difficult to conceive, if there was an extension to or for a time certain, that a lawyer in drawing the pleadings or giving instructions from which they were to be prepared, when he was the party with whom the extension was claimed to have been made, would not give the correct data. There was proof of a valid extension and a denial of it; the burden was on appellant to prove the defense. If the trial court had found for the appellant we would not have disturbed it. The court, however, found there was not a valid contract of extension— in other words gave credit to appellee and disbelieved the appellant and his brother. The trial judge saw appellee and appellant and could judge to some extent of the truthfulness of their testimony from their appearance on the witness stand, etc. Appellee was so deaf that it was very difficult for him to do business with customers in his store and the store was attended by his wife and children with a clerk, so that it is very improbable that appellee was alone in his store for from ten to fifteen minutes at nine o’clock on a Monday morning as testified to by Milton L. Thackaberry and denied by appellee. The truth of the evidence on behalf of appellant is also affected by the variation between the evidence and the first and second sets of pleas of extension. When all the evidence is considered together we are unable to say that the trial judge was not correct in his findings and judgment.

Appellee was asked to explain what he meant by his letter of April 14th. The court ruled that the witness “could state how he happened to write the letter and the circumstances surrounding the writing of it so the court can tell what he meant by it” and did not permit the witness to tell what he meant by it. WTien the witness undertook to tell what he meant the court excluded so much of the answer as undertook to tell his purpose. It was proper for appellee to testify to the facts and circumstances attending the writing of the letter that the court might construe it in the light of all the facts surrounding it. Wilson v. Roots, 119 Ill. 379. After the ruling of the court appellee was asked what he meant in the letter of April 14th, by the words, “About May 5th, the year will be up on your note,” to which an objection was overruled and he answered, “I meant the year’s interest would be due about that time;” that he did not have the note before him and had forgotten its date but had Milton’s letter of May 5th, looked at the date and thought that was close enough. It is not claimed the letter of April 14th was any part of a contract of extension,, but only that it was evidence as an admission of the fact in dispute—that there had been an extension. Where a letter is not contractual it is permissible to explain or construe a statement therein by attending circumstances or show that it originated in some mistake, where it is not the basis of the action or the defense. Starkie on Ev., 677 and 719; Smith v. Mayfield, 163 Ill. 447; Carr v. Miner, 42 Ill. 179; C. B. & Q. R. R. Co. v. Bartlett, 20 Ill. App. 97, opinion by Justice Moran with a full review of the authorities, affirmed in 120 Ill. 603; Wiggins v. Wilson, 123 Ill. App. 663; Cleveland Seed Co. v. Moore, 142 Ill. App. 615. The letter was like a receipt, liable to be explained by circumstances, but it could not be added to by the secret or unexpressed intention of the writer.

Wliere an action at law is tried by the court without a jury the admission of immaterial or incompetent evidence over objection is not a ground for reversal when the record shows the judgment of the trial court is sustained by competent evidence. Palmer v. Meriden Britannia Co., 188 Ill. 508; Iroquois Furnace Co. v. Elphicke Co., 200 Ill. 411; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61; Hammond v. Doty, 103 Ill. App. 75.

Propositions of law were presented, but none of them are mentioned in the brief and argument except one concerning the ruling on the evidence to explain the letter of April 14th. The holdings of the court on the law applicable to the case were consistent with the views herein expressed. Finding no reversible error in the case the judgment is affirmed.

IAffirmed.


text:
    Deborah Taylor, Appellee, v. Albert C. Taylor, Administrator, Appellant.
    Gen. No. 5259.
    Administbation of estates—when letters properly revolted. If it appears that an administrator has wasted or mismanaged the estate, a revocation of his letters is proper.
    Petition to revoke letters of administration. Appeal from the Circuit Court of Henry county; the Hon. Emeky C. Gbaves, Judge, presiding. Heard in this court at the October term; 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Seablb & Marshall and Morse & Demerath, for appellant.
    James H. Andrews and Thomas J. Welch, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

John H. Taylor died intestate in Henry county, Illinois, on June 4, 1898, leaving Deborah Taylor, his widow, and Mary E. Clyde, Albert C. Taylor, Frank Taylor and James G-. Taylor, his children and sole heirs at law, surviving him. Upon the petition of the widow, Albert C. Taylor was appointed administrator of the estate on June 21, 1898. The estate consisted of 100 acres of land in Iowa, 560 acres and some town lots in the township of Wethersfield and the adjoining township of G-alva, in Henry county, with personal assets amounting to $27,800, all of which were good except one note for $350. Of the notes, $10,400 were notes against the son, Frank, and his wife Edna. The real estate was inventoried by the administrator as worth $34,125. The administrator in April, 1900, filed a report in the estate which was approved showing that he had received $13,774.84 and paid out $13,291.63 leaving a balance of $482.84 cash in his hands. No further report was filed in the estate until April, 1906, when on the complaint of Deborah Taylor the administrator was cited into court to show cause why he should not file a final report. He then filed a second report showing receipts since the former report of $4,385.84, which included the cash on hand at the filing of the first report, and the payment of $4,578.66 of which sum $229.22 was interest on a note held by Charity Bowler for $796.26 which was paid July 25, 1903. He also reported in the second report that all the notes of Frank Taylor and Edna Taylor were sued in the Circuit Court and judgment taken against Edna Taylor, who had been served with summons, and that judgment in attachment had been rendered against the interest of Frank in the land of the estate. This report was approved November 28, 1906.

No further report was filed until February, 1908, when a third report was filed showing the receipt of $1,704.76, the payment of $1,789.19 and that there was a balance due the administrator of $84.33.

This report in the statement of the receipts contains the statement: “The following items were unintentionally omitted from the last report and are here included.

1900 Mar. 23, To cash of Garrett Brown

excr of Simon Bennett........................$ 100.00

Dec. 10, To cash of Garrett Brown

excr of Simon Bennett ...................... 49.00

1903 Feb. 4. To cash of Ben Glyde on note 800.

Feb. 4. To cash of Ben Glyde, Int on

note ........................................................ 257.45

1905 May 4. To cash of James G. .Taylor

on notes ................................................ 221.08

May 4. To cash of James G. Taylor,

Int. on notes............................................ 91.08

1519.48”

This report also states that the notes of Frank Taylor are now in litigation and that the notes of Edna Taylor are not collectible.

The only items actually received since the filing of the report in 1906, are $144.62 collected of Charles Green on note September 20, 1906, and $46,66 collected of Green September 20, 1907. The only payments made by the administrator as shown by the account are $312.22 paid James G. Taylor, heir, on May 4, 1905, and $1134, paid claim of First National Bank of Kewanee, January 19, 1907, together with $150 paid to the attorney of the administrator. No charges for commissions or attorneys’ fees appear elsewhere in any of the accounts. In April, 1908, on the petition of Deborah Taylor a citation was issued against the administrator to show cause why he should not be removed. The administrator appeared in answer to the citation, and on a hearing, the County Court entered an order revoking letters of administration issued to Albert C. Taylor. The administrator appealed to the Circuit Court, where on a trial an order was entered finding that Albert C. Taylor as administrator had wasted the assets and mismanaged the estate; that the waste was committed in allowing $334 interest to accrue on the claim of the First National Bank of Kewanee; in allowing the claim of one Charity Bowler to remain unpaid for a long time and interest to accrue thereon to the amount of $229.22 and paying such interest out of the estate, when the said claims might have been paid years prior thereto out of the estate; that the estate was mismanaged in allowing the notes of Frank Taylor to remain uncollected for ten years when .they were due and collectible four years after the appointment of the administrator; that the administrator mismanaged the estate in various other ways which are set out in the order, and an order was made revoking the letters of administration to Albert C. Taylor. The administrator prosecutes this appeal from that order.

The record shows that the administrator paid $334 interest on the claim of the First National Bank of Kewanee, which was allowed to accumulate until he paid the claim in 1907; that if the administrator had reported the moneys he collected from Garrett Brown in 1900 and Ben Glyde in February, 1903, which he failed to mention in his second report filed in 1906, his account would have shown money enough to have paid the bank claim years before it was paid.

Appellant paid $229.22 interest on the Bowler claim in July, 1903, and says: “I paid the interest on that note all the time; I didn’t pay it before, because she didn’t want it, that is the only reason.” The reason given is no justification for an administrator permitting interest to accumulate against an estate.

The evidence of appellee shows that in 1903, the administrator brought suit on the notes against Frank Taylor and his wife. A judgment was rendered against Frank and his wife, Edna, on a note for $3,800 on a cognovit. A judgment was also rendered against Edna for $450 and a judgment by attachment was rendered against Frank Taylor on the remaining notes ■ held against him by the estate. Executions were issued on these judgments, but were not enforced. The administrator testifies that the mother insisted he should not sell Frank’s land. The mother denies that she was consulted in the matter. In December, 1903, the administrator went to San Francisco to see his brother Frank and then claims to have bought out “all of Frank’s interest in the estate and paid him $500 and took a deed from Frank and agreed to pay all that Frank and his wife owed the estate.” In 1905 Frank returned to Henry county and, finding the administrator had not paid the claims of the estate against himself and his wife in the spring of 1906, filed a bill against the administrator to set aside the deed made by Frank to his brother Albert, the administrator. In 1904, and 1905, the administrator also bought out his sister’s interest in the estate and conveyed to her the Iowa land. He also bought out the interest of Ms brother James, and claims that no person bnt his mother and himself are now interested in the estate, bnt that he cannot pay the claims against Frank and his wife until the litigation between them is settled. That is no reason why Ms mother should not have her share of the estate. Deborah Taylor was sued on a note of about $400 that John H. Taylor had given on which she was surety. This the administrator paid and charged up to his mother although as he says no .person but his mother and he are interested in the estate. This administrator would appear to have refrained from filing accounts annually as required by statute for the purpose of keeping the parties entitled to know its condition, in ignorance of the situation. Over two years after he had bought out Frank’s interest and received a deed, the consideration of which was that he should pay the indebtedness of his brother Frank and his wife, Edna, to the estate, he made a report that does not disclose the fact that he had assumed Frank’s and his wife’s indebtedness, but only states he had brought suit on the notes. Immediately after the settlement with Frank he should have made a report and charged himself up with what -they owed as collected by him and paid to Ms mother her portion. Appellant, who is a merchant of Kewanee, has lost the only book of account in which he kept the accounts of the estate, so that he is unable to give the details of his management of the estate, except that he claims to have made a copy of the account, kept with his mother.

The statute provides for the revocation of letters of administration where the administrator wastes or mismanages the estate. The appellant allowed interest to accumulate on the claim of the First National Bank of Kewanee for several years when it should have been paid, and mismanaged the estate by failing to pay the debts of his brother Frank that he had assumed and agreed to pay in 1903, or if he did not assume and agree to pay them, by failing to collect them from the land that descended to his brother. The trial court properly revoked the letters of administration issued to appellant.

The order is affirmed.

'Affirmed.


text:
    John W. Hoover, Appellee, v. Lawrence Weber, Appellant.
    Gen. No. 5260.
    1. Landlobd and tenant—what assignment of lease valid. An assignment of a leasehold interest need not be under seal.
    2. Landlobd and tenant—when assignee of lease liable for rent. The assignee of a lease who has received the assignment of such lease with the consent of the landlord, continues liable for the rent until he duly surrenders possession of the demised premises to the landlord or until he reassigns the lease with the consent of the landlord.
    Assumpsit. Appeal from the Circuit Court of Livingston county; ■ the Hon. Geobge W. Patton, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Z. F. Tost, for appellant.
    E. A. Summons, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

John W. Hoover, by a written lease executed in duplicate under seal, rented a store room in the city of Pontiac to Amiel Harmon for the term of five years beginning October 1,1903. The lease provided for the payment of rent at the rate of $55 per month payable the first day of each month during the term, and that neither the party of the second part nor his legal representatives will underlet said premises or any part thereof, or assign the lease without the written assent of the landlord. Harmon entered into possession of the leased premises October 1, 1903, and used them for a pool and billiard hall. In January, 1906, Harmon with the written assent of the landlord assigned the lease to Burke Bros, delivering to the assignees his copy of the lease, and at the same time sold to the assignees the business and tables. In December, 1906, Burke Bros., with the written assent of the landlord, assigned the lease to Lawrence Weber, delivering to him the tenant’s copy of the lease, and at the same time sold to Weber the business and tables and assigned to him the insurance policies on the tables. The assignments of the lease were in writing but not under seal. Frank Weber, a son of Lawrence Weber, went into possession of the premises under the assignment to Ms father and conducted the business in his own name until July, 1907, when Lawrence Weber desiring to sell the business and tables to John J. Epps, asked the landlord to consent to his assigning the lease to Epps. The landlord refused to consent to an assignment to Epps, but Weber made the sale to Epps and continued from time to time to pay the rent to the landlord when Epps did not do so, until September, 1908. When the landlord received rent from Epps he claims he received it from him as agent of Weber. The premises were not surrendered to the landlord at the termination of the lease, October 1, 1908, and Weber did nothing towards surrendering the buildrng to the landlord until after the landlord brought tMs suit to recover rent, although Hoover on October 5 and 29, 1908, notified him by letter that he was holding Mm for the rent which was still accruing. This suit was begun on December 6,1908, against Lawrence Weber to recover rent that had accrued from September 1, 1908. On the trial a verdict was returned for $220 in favor of the landlord, on which judgment was rendered, and the defendant appeals.

The appellant contends that he is not liable because the assignment of the lease was not under seal. An assignment of a leasehold estate need not be under seal. Taylor’s Landlord and Tenant, sec. 428; Barrett v. Trainor, 50 Ill. App. 420; Keeley Brewing Co. v. Mason, 102 Ill. App. 381. When appellee assented to the assignment of the lease to appellant and appellant by his son went into possession of the premises, appellant attorned to appellee, paying rent under the lease, and when he desired to sell to Epps, he requested appellee to consent to an assignment because of the clause in the lease providing that “the party of the second part” should make no assignment without the written assent of appellee. The appellee refusing to consent to an assignment, the appellant sold his interest in the business to Epps but made no assignment of the lease and still continued to pay rent until August, 1908, whenever Epps, to whom he had sold the fixtures and put in possession of the premises, failed to pay for him. Appellant did not make any pretense of assigning the lease to Epps although the copy assigned to Weber was in the place of business. The question of what would have been the situation of the parties, if appellant had made an assignment of the lease without the assent of appellee is not before us, but it is clear under the evidence that appellant attorned to and became the tenant of appellee, and that appellee refused to release appellant and accept Epps as a tenant, and that -appellant is liable for the rent until he either delivered up possession to the appellee under the terms of the lease or re-assigned it to some person.

The evidence also shows that before the lease expired an execution was issued against Epps under which the sheriff levied on the property, took possession of the building and held it some time and then sold the goods to one G-reenbaum, who entered and took possession and occupied the building during October, November and December. Those facts would not relieve appellant as tenant from complying with the terms of the lease. The only way he could discharge himself from liability for rent was to comply with the obligation in the lease to surrender possession at its expiration or re-assign it.

Some questions are raised upon the admission of testimony and concerning the instructions. We have examined the questions raised and do not find any reversible error in them. Under the statement of facts as made by appellant no other judgment could be rendered under the law. The judgment is affirmed.

Affirmed.


text:
    Timothy Enright, Jr., Appellant, v. Toledo, Peoria & Western Railway Company, Appellee.
    Gen. No. 5266.

      Railroads—when not obligated to construct and maintain cattle guards. A railroad company is not required to place a fence and cattle guards across its depot grounds where they are intersected by a public highway.
    Action in case. Appeal from the Circuit Court of Woodford county; the Hon. G. W. Patton, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Jambs A. Biely and John F. Bosworth, for appellant.
    Thomas Kennedy and Stevens, Miller & Elliot, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Timothy Enright, Jr., brought suit against the Toledo, Peoria and Western Railway Company to recover the value of two cows, belonging to him, killed by a train of defendant. The court at the close of plaintiff’s evidence instructed a verdict in favor of defendant, upon which judgment was rendered and the plaintiff appeals. The record shows that on February 23, 1908, the appellant had two cows in his pasture, north of appellee’s right of way, adjoining the station grounds of Enright, a station on appellee’s railroad in McLean county. The railroad runs east and west and there was a sufficient fence between the pasture and the right of way. A public highway runs north and south, west of the pasture and through the switch limits of Enright station. On the south side of the main track, from a point ten feet east of the highway, is a platform ten feet wide that extends seventy feet further east for the accommodation of passengers wishing to take or alight from trains, but there is no depot building. No tickets are sold at Enright, but tickets are sold from other stations to Enright, and passengers taking the train at Enright are not charged excess fare because of not having a ticket. A switch track leaves the main track on the north side of the main track just west of the highway and runs east about ten feet north of the main track across the highway several hundred feet, where it again unites with the main track. The original right of way was one hundred feet wide, being fifty feet on each side of the main track. In order to accommodate the public, appellee bought an additional fifty feet on the north side of its right of way from the father of appellant to have proper station grounds. On the north side of the switch and twenty-five feet east of the highway is a power house for a grain elevator which stands further east and has a capacity of forty-five to fifty thousand bushels of grain, and south of the elevator on the switch track is a railroad track scales. There is an elevator office near the elevator with a walk to the elevator and the track scales; further east along the side-track is a coal house into which coal is unloaded by the carload. There is a driveway from the public highway to the elevator and coal house. The station is used for the ordinary purposes of a railway station in a farming community. It is open everywhere around the platform and buildings and the highway is a part of the open grounds. An incorporated Farmers Elevator Company carries on a grain business at Enright, shipping, mostly during the winter and spring seasons, about 135 cars of grain per year. Two passenger trains stop at Enright station daily, and freight is loaded and unloaded there both on the side track and on the platform.

The cows of appellant on the day they were killed, when there was fresh snow on the ground so that their course could be distinctly tracked, broke through a hedge fence west of his pasture on to the highway, wandered south on the highway to the space between the tracks, where they turned east to near the east end of the platform where they were struck by a train and killed, and they were carried west some distance.

The only question presented for our consideration is whether the appellee was required by law to place a fence and cattle guards across its depot grounds where they are intersected by the public highway. The appellee furnished additional land, sidetrack, scales and cars for handling freight and a platform for passengers, baggage and freight. It kept its station grounds open and easy of access for the benefit of the public, and its switching grounds free from cattle guards and wing fences for the safety of its employes. There is no dispute as to where the cows went upon the tracks from the highway and that they did not go beyond the platform. Under the circumstances, the facts being undisputed it became a question of law for the court whether there was any liability on the part of appellee. Wabash R. R. Co. v. Howard, 57 Ill. App. 66.

The statute in relation to fencing railroads ought not to be construed to embrace that which is not within its terms, and depots and stations are not so embraced. If the statute were held to include stations, passengers would be under the necessity of climbing fences or opening gates. It would be unreasonable to obstruct station grounds with fences and cattle guards and very dangerous to the lives of trainmen. The question presented by this record has been frequently passed on "by the courts of this state, and it has been uniformly held that railroads are not required to place fences across station grounds. C. B. & Q. v. Hans, 111 Ill. 114; Ewing v. Chicago and Alton R. R. Co., 72 Ill. 25; C. C. C. & St. L. Ry. Co. v. Roper, 47 Ill. App. 321; T. H. & I. R. R. Co. v. Bowles, 16 Ill. App. 261; C. C. C. & St. L. R. R. Co. v. Umphenour, 63 Ill. App. 642; C. C. C. & St. L. Ry. Co. v. Green, 65 Ill. App. 414; S. & St. R. R. Co. v. Stotlar, 43 Ill. App. 94.

There being no duty to fence the road under the undisputed facts, there can be no recovery, and the court properly instructed a verdict for the appellee.

Appellant also insists that the court erred in not permitting him to prove that a fence could have been built from the highway to the elevator without interfering with the business of the elevator. The cattle did not go on the railway at the road to the elevator but between the tracks, and the evidence offered was immaterial. The judgment is affirmed.

Affirmed.


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    Flora Strause, Appellee, v. Mae E. Dutch et al., Appellants.
    Gen. No. 5269.
    This case is controlled by the decision in Keithley v. Interstate Bank & Trust Company, post p. 443.
    Forcible entry and detainer. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Gbeen, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Charles O. Dutch, for appellants.
    Badley & Badley, for appellee.
   Me. Justice Thompson

delivered the opinion of the court.

Flora Strause, appellee in this court and grantee in a sheriff’s deed, brought suit in forcible entry and detainer to recover from Mae E. Dutch and Charles C. Dutch the possession of the premises described in the deed. The Interstate Bank & Trust Company had filed a bill to foreclose a first and third mortgage given by Charles C. Dutch and Mae E. Dutch in which a decree of foreclosure had been entered, under which the property had been sold and sufficient realized at the sale to pay the first mortgage of the Interstate Bank & Trust Company and $400 on a second mortgage held by Arthur Keithley. A deficiency judgment was rendered for the amount due on the third mortgage on which execution was issued and there was a redemption from the former sale, followed by a sale and deed thereunder to appellee. Appellants contend that there was no lawful rig’ht to redemption by the judgment creditor under the execution on the deficiency judgment and sale under that execution. That question was decided adversely to appellants in Keithley v. Interstate Bank & Trust Company, post, p. 443, and disposes of this case. The judgment is affirmed.

Affirmed.


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    J. E. Gustus, Appellee, v. T. D. Murdock et al., Appellants.
    Gen. No. 5272.

      Depositions—Who may introduce. Depositions properly taken by one party and containing evidence pertinent to the issues may be introduced in evidence by the other party where they are not withdrawn or suppressed before the trial.
    Assumpsit. Appeal from the Circuit Court of Rock Island county; the Hon. F. D. Ramsay, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    E. P. Field, for appellants.
    Searle & Marshall, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

J. E. (Justus brought suit in assumpsit against T. D. Murdock and R. Y. Field in the Circuit Court of Rock Island county. The declaration contains the common counts. The plaintiff, after a rule had been entered, filed a bill of particulars showing that the suit was brought to recover commissions amounting to $504.52 on the sale of Canadian lands sold by defendants for the Calgary Colonization Company in territory in which plaintiff claimed he had the exclusive right to sell such lands. The defendants filed the general issue, three special pleas of release and a fifth plea, being a fourth special plea in which defendants aver that the several causes of action in the declaration mentioned are one and the same, namely, upon a contract made on or about October 1, 1905, whereby in consideration that the plaintiff would permit defendants to sell Canadian lands for the Calgary Colonization Company in Henry county, Illinois, without hindrance on the part of plaintiff, that for any sales defendants should thereafter make, defendants should pay plaintiff $100 for each section so sold and that before any sales were made plaintiff and defendants mutually rescinded said contract, etc. Replications denying the pleas were filed, on which issues were joined. On the trial a verdict for $394 was returned in favor of plaintiff, on which judgment was rendered and the defendants appeal.

The evidence shows that appellants and appellee are real estate agents engaged in the sale of Canadian lands of the Calgary Colonization Company in the province of Alberta. The appellants are located at Hales-burg, Knox county, Illinois, and for several years prior to 1905 had been engaged in selling Alberta land under a contract with the Calgary Colonization Company which gave them G-alesburg and vicinity in which to sell the company’s lands, and had under this contract worked up the sale of such lands in Henry county on the north of and adjoining Knox county. In the spring of 1905, one of the appellants solicited the appellee, who lived at Moline and was engaged in educational work in Bock Island county, to go to Canada, and look over the lands they were selling with a view of buying land and taking an agency under them. After three interviews, appellee, in August, 1905, accompanied the appellants to Canada, appellants paying appellee’s railroad fare, when he bought a quarter section of land and ignoring appellants, secured a contract from the Calgary Colonization Company giving him the agency to sell its lands in Warren, Henry and Bock Island counties, Illinois, and in two counties in Iowa. The contract recites that the land 3company agrees not to appoint any other agents in said counties or allow other agents to work therein. In the latter part of September, appellee and appellants met and disputed as to the rights claimed by them respectively, appellants claiming they had a right under their prior contract to sell in Bock Island and Henry counties and appellee denying the claim of appellants. On October 2, 1905, the parties again talked with each other over the telephone, Field telling appellee he had some parties ready to start to Alberta and if he could not make some agreement with appellee he would take them to some other land company. It was thereupon agreed that appellants should pay appellee $100 for each section of the Calgary Colonization Company land that they should sell to residents of Henry county. At that time appellee inquired of appellant Field, as to whom he expected to sell to, and Field gave him the names of Stickney, Hough, Wendt, Fuickson and a relative of Hough. On October 3rd after the talk over the telephone, Gustus wrote a letter to Field at Calgary stating the contract as he understood it. When Field arrived with his customers at Calgary he received ap-. pellee’s letter and also a telegram from appellee stating that he revoked the letter.

On the trial the appellee read in evidence the depositions of H. E. Anderson and A. J. Sayre, officers of the land company, in reference to correspondence with appellee and the lands sold by appellants. Appellants objected to the use by appellee of the depositions taken on their behalf and insist that the admission of the depositions was error. No objection was made to the depositions before the trial was commenced, as to matters of form of the questions or as to any irregularity in taking them. Depositions properly taken by the defendant and containing evidence pertinent to the issues may be introduced in evidence by the plaintiff where they are not withdrawn or suppressed before the trial. Adams v. Russell, 85 Ill. 285; Bartlett v. Slusher, 117 Ill. App. 138; McCormick v. Laster, 81 Ill. App. 316.

It is also contended the judgment is excessive. The proof by the officials of the land company shows that appellants had sold 640 acres of the company’s land to Stickney on which appellee claims $100 commission, 803 acres to Hough on which appellee claims $125.47 commission, 120 acres to Garrick on which appellee claims $18.75 commission, 320 acres to Wendt on which appellee claims $50 commission and 640 acres to Erickson on which appellee claims $100 commission. The verdict and judgment is for the total of these items less twenty-two cents.

The proof clearly shows that the sales to Hough and Wendt were made before the contract was made between appellants and appellee and while appellants claimed the right to sell lands in Henry county under their contract. The fact that Hough and Wendt made a trip to Alberta with appellants in October but bought no land on that trip would not give appellee any right to a commission on lands sold to them before the agreement was made between appellants and appellee. Appellants claim the right to sell the Calgary Colonization Company’s land in Henry county under their contract with the land company. The fact that appellee had a contract from the company giving him an exclusive right to sell the company’s lands in Henry county did not revoke appellants’ prior contract. The controversy must be settled between the land agents and their principals as to all lands sold except what were sold after the agreement of October 2nd. The company possibly made itself liable to each of its agents but could not make one agent liable to the other except by agreement. A judgment cannot be sustained for commissions on any lands except on those sold by appellants after making the agreement of October 2nd.

It is also claimed that under the agreement no commission was due appellee until the purchaser had paid one-fourth of the purchase money. The evidence shows that the land company had settled with the appellants for lands sold to the parties named, and from that fact the jury might reasonably infer and find that the commissions were due and payable. Under the evidence the appellee is entitled to a judgment for $168.75. The judgment rendered is excessive to the extent of $225.25,—the commissions of the sales to Stickney and Hough. If the appellee remits $225.25 within five days from the lodging of this opinion with the clerk the judgment will be affirmed for $168.75 otherwise the judgment will be reversed and the cause remanded.

Appellee not filing a remittitur herein, the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Fannie T. Butters, Administratrix, Appellee, v. Chicago, Burlington & Quincy Railway Company, Appellant.
    Gen. No. 5278.
    Appeals and ebrobs—effect of absence of assignments of error. If no assignments of error have been made on the record there is nothing presented for review. An assignment of error on the record, even though an assignment appears in the abstract, is not a mere matter of form to be considered waived, if not objected to, but one of substance.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1909.
    Appeal dismissed.
    Opinion filed March 11, 1910.
    Robert C. Morse and Nicholas J. Demerath, for appellant; Chester M. Dawes and Nicholas Demerath, of counsel.
    N. F. Anderson, Thomas J. Welch and James H. Andrews, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action on the case brought against the Chicago, Burlington and Quincy Railway Company by Fannie T. Butters, administratrix of the estate of Charles A. Butters, to recover damages for the benefit of the next of kin of the plaintiff’s intestate, averred to have been killed by the negligence of the defendant. Plaintiff recovered a verdict and judgment for $4,000 and the defendant appeals.

There is no assignment of errors on the record as ■ required by rule 12 of this court. No assignments of error having been made there is nothing for us to consider. An assignment of error on the record, even though an assignment appears in the abstract, is not a mere matter of form to be considered waived, if not objected to, but one of substance. Aetna Life Ins. Co. v. Sanford, 197 Ill. 310; Schaffer v. Burnett, 217 Ill. 84; Kominski v. People ex rel., 219 Ill. 595; Hall v. People, 197 Ill. 567; Press v. Woodley, 160 Ill. 433; Lancaster v. Waukegan & Southwestern Railway Co., 132 Ill. 492; Metropolitan Life Ins. Co. v. The People, 205 Ill. 370; Benneson v. Savage, 119 Ill. 135; Ditch v. Sennott, 116 Ill. 288; Cooperman v. People for use etc., 113 Ill. App. 99. An assignment of error is the pleading of the party and is as essential as a declaration and will not be considered waived although not objected to. Rosin v. Wilde, 80 Ill. App. 58. The appeal must therefore be dismissed.

Appeal dismissed.


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    Peter M. Keesler, Appellee, v. William E. Washburn, Appellant.
    Gen. No. 5281.
    Appeals and errors—effect of absence of assignments of error. If no assignments of error have been made on the record there is nothing presented for review. An assignment of error on the record, even though an assignment appears in the abstract, is not a mere matter of form to be considered waived, if not objected to, but one of substance.
    Action in case for personal injuries. Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1909.
    Appeal dismissed.
    Opinion filed March 11, 1910.
    ’ Nicholas J. Demerath and Sturtz & Ewan, for appellant.
    James H. Andrews and Thomas J. Welch, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Peter M. Keesler began this suit in case against William E. Washburn, to recover damages for injuries suffered by plaintiff, from being struck at a street intersection in the city of Kewanee, on December 7, 1907, by an automobile operated by the defendant. There have been three trials; at the first the jury disagreed; at the second a verdict for plaintiff for $200 was returned; at the third a verdict for $600 was returned in favor of the plaintiff on which judgment was rendered, and the defendant appeals from that judgment.

There is no assignment of errors on the record as required by rule 12 of this court. No assignment of error having been made, there is nothing for us to consider. An assignment of error on the record, even though an assignment appears in the abstract, is not a a mere matter of form to be considered waived, if not objected to but is essential to the consideration of a case by an Appellate Court. Aetna Life Ins. Co. v. Sanford, 197 Ill. 310; and cases cited in Butters v. C. B. & Q. Ry. Co., ante, p. 275. The appeal must therefore be dismissed.

Appeal dismissed.


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    August Frick, Appellee, v. Aurora, Elgin & Chicago Railway Company, Appellants.
    Gen. No. 5282.
    1. Verdicts—duty of judge with respect to excessive. It is the duty oí every judge, in all cases where the verdicts are manifestly and palpably against the weight of the evidence, to promptly take the responsibility of setting aside the verdict, or require a remittitur, without subjecting the parties to the delay and expense of an unnecessary hearing of such questions in this court.
    2. Evidence—what erroneous as tending to arouse sympathy. In an action for personal injuries the admission of evidence that the plaintiff had a wife and two children is calculated to arouse sympathy and is ground for reversal, and it is immaterial if such fact is indirectly brought to the knowledge of the jury.
    3. Evidence—when opinion of medical expert incompetent. Opinions of medical experts are incompetent, who have not treated the plaintiff, which are based to a considerable extent upon subjective symptoms detailed by the plaintiff during their examinations of him made for the purpose of testifying.
    4. Tkial—when remarks of counsel improper. An argument of counsel is improper by which he mis-states the' law to the jury and deprives the opposing counsel of the benefit of the inference to which he is legally entitled because of the non-production of competent evidence.
    5. Special intebroqatobies—when properly refused. It is not error for the court to refuse to present to the jury a special interrogatory the answer to which could not control the general verdict.
    Action in ease for personal injuries. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1909.
    Beversed and remanded.
    Opinion filed March 11, 1910.
    Hopkins, Peeeebs & Hopkins, for appellant.
    Walter E. Heady, Gr. B. Beverly and B. P. Alschuler, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

August Frick brought this suit in case to recover damages for injuries sustained by him on November 26,1906, while he was a passenger on the electric interurban railway of defendant. The declaration contains three counts. The first avers that the defendant “so negligently and improperly operated and managed” its car “that by and through the negligence, unskillfulness and mismanagement of the said defendant” the car was violently thrown from the railway, whereby, etc. The second count avers that the defendant was negligent in that it operated said car at a great and dangerous rate of speed. The third count avers that the defendant negligently permitted certain incompetent servants to be in control of the car, etc. The jury returned a verdict in favor of plaintiff for $4,980 upon which, after the usual motions, judgment was rendered and the defendant appeals.

The evidence shows that the appellee at the time of the accident was a laborer, fifty-seven years of age, residing at Elgin, but employed at the plant of the Illinois Iron and Bolt Company at Carpentersville, six miles from Elgin. On the morning of the accident" he entered a car of appellant at Elgin to be carried as a passenger to Carpentersville. At a curve of the railroad the car going rapidly was by centrifugal force thrown from the trucks and rolled over on its side. The appellee was thrown between the seats and claims to have suffered an impacted fracture of the upper part of the left femur. The appellee claimed in his evidence in chief that he had not been under a doctor’s care and had neither taken any medicine or received any prescription during the year prior to the accident. On the cross-examination of appellee it was developed that Dr. Achard had been treating him for rheumatism for four months prior to the accident, the last treatment being on Saturday night preceding the accident which happened on Monday morning. After the accident the appellee got up,, hunted for his dinner pail, walked to the back of the car, got out through the door or a window, walked to another street car and from the street car into a waiting room, thence to an ambulance and from the ambulance up nine steps into a hospital. He was examined there and made no complaint about his hip; he walked from the hospital out to a carriage and from the carriage into his house where a physician came to see him for ten days; after that he walked about three quarters of a mile and up twenty-four steps to a doctor’s office and then home; he made this trip two or three times a week for several weeks. Although he was examined by a doctor at the hospital and at his house no fracture of any bone was discovered.

Sometime in January, 1907, he was examined by two other doctors at the request of his attorneys for the purpose of determining the nature and extent of his injuries with a view of beginning suit against the appellant. These doctors were both examined as witnesses and had no recollection of discovering any serious injuries. The evidence concerning the fracture was given by Dr, G-eyer who examined him under an X-ray and testified that there was an impacted fracture of the neck of the femur. Some other physicians testified to finding a shortening of the limb, which indicated that there might have been a fracture. The physician who examined him with an X-ray did not produce a skiagraph, although appellee testified a picture was taken. The appellant insists that the verdict and judgment are excessive.

The record shows that the trial judge, after the argument of the motion for a new trial, said: “I think the verdict in this case is excessive, but the legislature has made the law and it seems to think that the judge don’t know enough, to size up these verdicts, and it has given it to twelve honest men to do that. I think this judgment would have been safer, if there had been a smaller verdict, bnt I don’t think it is my job to change it.” He then overruled the motion for a new trial and rendered judgment. We have fully examined the evidence upon the question of damages and concur with bim in his remark that the verdict was excessive. The court misconceived its duty in regard to- its control over an excessive verdict. To permit a verdict which is clearly and manifestly against the weight of the evidence to stand, upon the supposition that the jury were impartial and honest, is as unjust and injurious to the parties damaged thereby as though it proceeded from passion or prejudice. It is the duty of every judge, in all cases where the verdicts are manifestly and palpably against the weight of the evidence, to promptly take the responsibility of setting aside the verdict, or requiring a remittitur, without subjecting the parties to the delay and expense of an unnecessary hearing of such questions in this court. Donelson v. E. St. L. & S. Ry. Co., 235 Ill. 625; Belden v. Innis, 84 Ill. 78; Goldie v. Werner, 50 Ill. App. 297. Appellee was injured to some extent, and if he has a cause of action he ought to be reasonably compensated, but there is no evidence in the record' justifying the damages awarded.

It is assigned for error that improper evidence on the part of appellee was admitted over the objection of appellant. The appellee got before the jury the fact that he had a wife and two children who had taken care of him during his suffering. The proof that he had to be taken care of was proper, but the admission of proof that he had a wife and two children was reversible error and the fact that it was indirectly brought tó the knowledge of the jury does not remedy the error. Jones & Adams Co. v. George, 227 Ill. 64; McCarthy v. Spring Valley Coal Co., 232 Ill. 473.

There was also proof by some of the physicians who testified concerning the condition of appellee, that their opinion was based to a considerable extent upon the subjective symptoms as detailed by the appellee during their examination of him for the purpose of testifying. This was erroneous. Chicago Union Trac. Co. v. Giese, 229 Ill. 260; Shaughnessy v. Holt, 236 Ill. 485.

It is álso contended that there was error committed in the argument to the jury by counsel for appellee. There was testimony on behalf of appellee that a physician took an X-ray picture of the hip joint. The physician testified to what it showed, without producing the photograph in court. Counsel in argument told the jury that the picture was not competent evidence on the part of appellee, but if counsel for appellant had desired the picture they could have got it on cross-examination. This was objected to, and the court remarked that he saw no cause for interference. The X-ray picture was competent testimony, after a proper foundation was laid, and the appellant was entitled to the benefit of any inference to be drawn from the failure of the appellee to produce the best evidence that the case was susceptible of. The remarks of appellee’s counsel were improper.

It is also insisted that the court erred in refusing to submit the following interrogatory to the jury: “Was the accident in question and alleged injuries to plaintiff wholly the result of a defective brake that failed to work properly at and immediately before the time of the accident?” Counsel for appellant say that if the jury had answered the question “Yes,” then a general verdict in favor of appellee could not be sustained, because it was not averred that the injuries resulted from a defective brake. We do not think this is tenable for the reason that the declaration averred the injury happened because of running the car at an excessive speed. The evidence shows that the appellant’s electric car was equipped with air brakes and ordinary hand brakes. When the car approached the curve the air brakes refused to work. Counsel for appellant in their argument stated: “It is a well known fact that at times an electric brake momentarily refuses to respond, and in this emergency it cannot fairly be said that the motorman could or should have done anything more than he did do to stop the car.” If such fact is well known then the car was negligently operated in being permitted to approach a curve, when the rails were wet and slippery, in the early morning, at such a speed that it could not be controlled by the. hand brake. It is the duty of carriers of passengers to exercise the highest degree of practical care and diligence that human care and foresight can reasonably do under the circumstances consistently with the character and mode of conveyance adopted and the practical operation of the road. Chicago City Ry. Co. v. Shreve, 226 Ill. 530; Tri City Ry. Co. v. Gould, 217 Ill. 317. If it is such a well-known fact that air brakes frequently refuse to respond, then the car should have been run in such a way that it could be controlled in some other way. Questions for special findings must be based on grounds on which a recovery is asked, and can only be required on material questions of fact. Consolidated Coal Co. v. Maehl, 130 Ill. 551; J. S. E. Ry. Co. v. Southworth, 135 Ill. 250; C. & A. R. R. Co. v. Harrington, 192 Ill. 9; Springfield Coal Mining Co. v. Gedutis, 227 Ill. 9. The question was of such a character that it would not control a general verdict and it was properly refused. For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Margaret Canty, Appellee, v. J. C. Kelley et al. (Thomas Cunniff et al., Appellants.)
    Gen. No. 5285.

      Executions—who cannot maintain motion to quash. A stranger to an action has no standing to urge a motion to quash a levy, etc.
    Motion to vacate levy. Appeal from the Circuit Court of White-side county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Jarvis Dinsmore, for appellants.
    C. L. and C. E. Sheldon, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

On May 4,1908, during the April term of the Circuit Court of Whiteside county, a judgment was entered on a cognovit against J. C. Kelley for $300.93 and costs in favqr of Margaret Canty. An execution was issued the same day and afterwards returned. On April 23, 1909, an alias execution was issued on the ¡judgment and delivered to the sheriff of Whiteside county. The sheriff under this execution on May 15, 1909, levied upon all the interest of J. C. Kelley in certain land (the interest of Kelley being an undivided one-twenty-fourth part), and advertised the same for sale. On June 12,1909, the interest of Kelley in the land was sold by the sheriff under the execution to Margaret Canty for $361.78. On May 29, 1909, at the April term .of the Circuit Court Thomas Cunniff and Michael Cunniff filed a petition to have the case’of Margaret Canty v. J. C. Kelley redocketed and made a motion “to vacate and quash the levy made May 15th.” On June' 14 Margaret Canty made a motion to strike from the files the petition and motion of the Cunniffs. On the hearing of the motions the court overruled the motion of the Cunniffs, and they prosecute this appeal.

It appears from the files in a partition suit offered in evidence on the hearing of the motions, that James Cunniff, a bachelor, died December 27, 1907, seized of ninety acres of land in Whiteside county, leaving surviving him fifteen heirs at law. James Kelley, the son of a half brother of the deceased, who had died before James Cunniff, was one of the heirs of Cunniff, and Margaret Canty is the mother of James Kelley. The partition suit to partition the land of James Cunniff was begun September 2, 1908, and James Kelley was ' a party defendant to that suit, but Mrs. Canty was not made a party, although she was a judgment creditor of James Kelley under the name of J. C. Kelley. Under a decree in the partition suit the land was sold by the master in chancery to Thomas Cunniff, to whom the master made a deed on January 25, 1909. Thomas Cunniff conveyed a half interest in the land to his brother Michael. Thomas and Michael Cunniff now seek by a motion to have the proceedings under the execution in the suits of Margaret Canty v. J. C. Kelley vacated.

The appellants are not parties to the action in which they have entered their motion to have the levy of execution vacated. They are strangers to the record. Strangers to a suit cannot have divers and complex rights settled on a mere motion after judgment has been entered and the term of court adjourned. Bonnell v. Neely, 43 Ill. 288; Oakes v. Williams, 107 Ill. 154. Where a court has jurisdiction of the parties and of the subject-matter, its judgment cannot be attacked by one not a party to the proceeding. Magnusson v. Cronholm, 51 Ill. App. 473. It is manifest that the rights of appellants and Margaret Canty cannot be determined on a motion and affidavits in support thereof, without an opportunity to the parties to cross-examine the affiants and ascertain the real facts. Their rights can only be properly adjudicated in some proceedings where there may be regular pleadings and issues made according to the forms of law. The Circuit Court properly overruled the motion of appellants to vacate and quash the levy. The judgment is affirmed.

Affirmed.