author: Mr. Justice McBride

text:
    Guy Beauman, Appellee, v. W. N. Simmons, Appellant.
    1. Judgment, § 45

      —when confession of against one maker only improper. A power of attorney authorizing a joint judgment by confession against the makers of a promissory note does not empower a confession of judgment against one maker only.
    2. Judgment, § 58

      —what shows meritorious defense warranting vacation of by confession on note. An affidavit that a promissory note had been paid, supported by an indorsement on the note to that effect, is sufficient to show a meritorious defense requiring the setting aside of a judgment by confession.
    3. Judgment, § 56

      —when by confession on note should be set aside. A judgment by confession obtained on a judgment note authorizing judgment by confession in favor of a legal holder should be set aside on affidavit that the plaintiff is not the legal holder, where the note itself shows no indorsement by the payee.
    Appeal from the County Court of Johnson county; the Hon. J. F. Hight, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed April 12, 1919.
    J. 0. Cowan and H. A. Spann, for appellant.
    0. E. Morgan, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

Appellee enters a motion herein to dismiss this appeal because the appellant’s bond was not approved by the court; that no record or bill of exceptions has been filed and that the clerk of the trial court has never certified the record to the Appellate Court.

We have examined this record and find that the bond was approved by the trial judge, that the bill of exceptions was presented and signed by the trial judge within the time granted by the order of court and that the bill of exceptions was filed by the clerk on the day that it was signed, and the clerk makes a certificate showing that the record filed herein contained a complete copy of all the records and files filed in said cause. Other reasons are also urged upon this motion but they are not important, and the motion to dismiss the appeal is denied.

It appears from this record that on March 7, 1917, appellee obtained a judgment, in vacation, by confession, for $107.42. At the next term of said court a motion to set aside said judgment and for leave to plead was entered. The motion and petition were denied by the court to reverse which order this appeal is prosecuted.

It appears from the record in this case that on June 15, 1910, W. N. Simmons and J. H. Carter executed a note to C. H. Gray of Vienna for $43.75, bearing interest at 7 per cent per annum from maturity. That said note contained a power of attorney reciting: “We hereby empower any attorney at any time hereafter, in any court in term time or vacation, to waive service of process, and confess judgment on the above note in favor of any legal holder of said sum, interest and costs,, and ten dollars attorney’s fee, and to release all errors and consent to immediate execution,” etc. Upon the face of said note appears the following indorsement: “Johnson County Bank, Vienna, Ill., paid Nov. 4, 1910,” and on the back of the above note appears the following indorsement: “J. H. Carter.” And these are the only indorsements upon the back of said note.

It further appears that on December 31,1911, W. N. Sitiimons executed a note payable to the order of Henry McFatridge for the sum of $22.65, which note also contained a power of attorney in substance the same as the one above described. On the back of this note appears the following indorsement: “J. H. Mc-Fatridge.” It will be observed that the appellee obtained a judgment upon these two notes by confession before the clerk of said court, in vacation, for $107.42, being the total amount of said notes. The appellant, in support of his motion to set aside said judgment and be permitted to plead, assigns as reason therefor that the note first above described was paid off and discharged on November 4, 1910; that the said power of attorney by reason thereof is void and of no effect; that the said power of attorney is a joint warrant of attorney and does not authorize a several judgment and that the plaintiff in said judgment was not the legal holder of said note, which petition is supported by the affidavit of the appellant. It appears to us that the claims made by the appellant are well supported, not only by his affidavit but by the face of the note itself. The note upon its face recites that it was paid November 4,1910. It also appears that judgment was taken against Simmons only and not against Carter; and it further appears that C. H. Gray, the payee of said note, never assigned or transferred it to the appellee or any one else. The power of attorney authorized a joint judgment by confession but did not empower any one to confess judgment against one of the makers only. A joint warrant of attorney does not authorize a confession of judgment against the surviving maker of a note, even though the note is in terms joint and several. Mayer v. Pick, 192 Ill. 561. It can make no difference whether this note was paid by Simmons or by the other joint maker, Carter. If Carter paid it he would then have no right to transfer the note to appellee so that appellee might take judgment upon it. His rights would be to institute suit against appellant for the money paid out by him for appellant’s use, and this suit would be barred in 5 years. Ward v. Redden, 39 Ill. App. 643. The power of attorney authorized a confession of judgment in favor of the legal holder of the note only. Appellee was not the legal holder, the legal title was still in Gray and had never been transferred by him. We are of the opinion that the petition and affidavit and the face of the note show that appellant had a meritorious defense to this judgment, or at least to the greater portion thereof, and the court should have opened up the judgment and permitted the appellant to plead and submit the issues to a proper trial, and that it was error for the court to refuse so to do. Vennum v. Carr, 130 Ill. App. 309.

j The judgment of the lower court is reversed and the cause remanded with directions to open the judgment and permit the appellant to plead to the merits.

jReversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    The First National Bank of McLeansboro, Appellant, v. The Cloud State Bank, Appellee.
    1. Banks and banking, § 148

      —when title to money obtained by forgery passes. Title to money obtained by forgery of a check passes by mere delivery if made in good faith and for value.
    2. Banks and banking, § 148

      —when bank paying out money on forged check is not entitled to follow it and recover it from another bank. A bank paying out money upon a forged check is not entitled to follow it and obtain it from another bank which has had the forger arrested for a previous forgery and obtained full satisfaction of its claim from him, although the defendant had great cause’ to suspect that the money was obtained from the plaintiff by fraud, where due inquiry failed to discover the fraud and the plaintiff bank itself did not know of the forgery until after the money was received by the defendant.
    3. Banks and banking, § 148

      —when money is received by bank from forger of check in due course of business. Money received by a bank cashier from a forger to reimburse the bank for a previous forgery, although received after banking hours and in the jail, is still received in due course of business so as to pass title to the recipient in good faith and for consideration.
    4. Banks and banking, § 148

      —when defrauded bank follouñng

      money obtained by forgery may not recover from another bank amount paid to trace forger. A defrauded bank in attempting to follow and recover money obtained by forgery cannot recover a small amount paid by the forger to another bank to cover its expense of tracing him on another forgery, where the amount of said expenses was agreed between the forger and the defendant bank which took without actual notice of the taint attached to the money.
    Appeal from the Circuit Court of Hamilton county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 12, 1919.
    J. H. Lane and Creighton & Thomas, for appellant.
    John M. Eckley and W. W. Daily, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

The appellant sought by this proceeding in the Circuit Court of Hamilton county to recover $100 from the appellee that had been paid to it under the following circumstances: On January 10, 1918, Marion Hoover by the name of Kinney Turrentine obtained from appellee, located at McLeansboro, Illinois, by a forged check, the amount of $85, $25 of which was applied to the payment of his father’s note held by said bank and $60 in cash was taken by Hoover. The forgery was not discovered until about 3 days afterwards when diligent search was made for Hoover but they were unable to locate him. On January 25, 1918,-Hoover returned to McLeansboro and ate supper and breakfast the next morning at the restaurant of T. A. Echols. Hoover told Echols that he had money in the bank and as soon as it opened he would get his money and pay him.. About noon Hoover returned to the restaurant and paid Echols and at the same time displayed a large roll of bills. Frey, the cashier of appellee, had learned that Hoover was in town and made a search for him but was unable to locate him. He saw Echols and he told him that Hoover had been there and paid his bill and had a roll of money. Frey in his efforts to locate Hoover was informed that he had been at the store of Ottis McNabb and there bought some clothing. Frey then inquired of McNabb if Hoover had passed a check on him and was informed he paid for the clothing purchased partly with cash and partly with a certificate of deposit on the First National Bank of McLeansboro. Frey then remarked that Hoover was no good that he had cashed a bad check on the Cloud State Bank and that he bet also he had got the First National Bank for some money. Frey then made inquiry of the bookkeeper, a lady, at the First National Bank to ascertain if Hoover had passed a check on that bank, but she did not know and Frey obtained no information from that source. Frey then caused a warrant to be issued for Hoover, who was arrested at Carmi and brought back to McLeansboro the same evening. A preliminary trial was held and he was bound over to the grand jury. The State’s Attorney, in the presence of Frey, inquired of Hoover about his conduct for the purpose of ascertaining if he had been guilty of any other fraud or passing any other forged checks, but Hoover denied that he had forged any other check than the one upon appellee’s bank. Hoover then told the State’s Attorney and Frey that he had some money and thereupon took $10 out of his mouth and told them that he had about $125 hidden in the jail at Carmi under the stove, and also claimed that he had more money in the First National Bank but denied that he had forged any check upon that bank and insisted that he had worked for his money and that he also had part of the money that he had obtained from appellee’s bank on the forged check and proposed to go to Carmi and get this money and pay it to appellee’s cashier and also to pay him his expenses. They went to Carmi and obtained the money that he said was hidden in the jail. He then told Frev that he wanted to pay him back, that he had done him a wrong and paid Mr. Frey $85, and $15 for expenses which Frey claimed he had incurred in and about the location of Hoover and this Hoover agreed to pay and gave Frey $15 more, making $100 in all, and at the same time told Frey that part of this was some money that he had obtained from appellee upon that forged check. At this time, which was on a Saturday, it was not known that Hoover had passed any forged check upon any other bank. On Monday afternoon following, the First National Bank learned that a check that had been given them by Hoover for $210 was a forgery and that he, by this forged check, had obtained from that bank $210. The clothing that Hoover had obtained from McNabb was returned to him and that money was paid to appellant, and the balance of the money that was hidden in the jail at Carmi was also paid to appellant. The court upon the hearing of this case refused to give appellant the $100 but adjudged that it should pay the costs of the suit, and this appeal is brought for the purpose of reversing the judgment so rendered.

It is the contention of appellant that the money in question belongs to appellant and was secured by Hoover from appellant’s bank by means of a forged check, and then paid by Hoover to appellee as compensation for injuries it sustained by reason of a forged check passed by Hoover on appellee’s bank prior to that time.

The principal and only meritorious question presented and argued by appellant is, Did the appellee receive the money in question in due course of business and in good faith and for a valuable consideration? If it did, then it has the right to retain it. If received in bad faith, or not in due course of business, as claimed by appellant, then it would have no right to retain this money.

In discussing this question it should be borne in mind that a distinction exists in law between money and negotiable paper on the one hand and personal property upon the other. As to the former, the title passed by the mere delivery, if made in good faith and for value. For the reason that the business of the country is transacted by the mere delivery of money and commercial paper properly indorsed by one to another, and if the receiver should be restricted in his right to retain only such as the payor had actual title to, then such restriction would hamper the business of the country, and in fact destroy the usefulness of money as a circulating medium with which to transact business. The law makes no distinction between commercial paper not due and money. They are both treated differently from other classes of personal property with reference to the passing of the title. “The rule is well settled at common law that a bona fide holder of money or negotiable paper, transferable by mere delivery and not overdue, who has taken it in the usual course of business, and for a valuable consideration, acquires a perfect title. * * * This exception to the common-law rule, that the purchaser of a chattel can acquire no better title than the vendor had, has been adopted because, in the language of Lord Kenyon, in Lawson v. Weston, 4 Esp. 56, the contrary principle ‘would at once paralyze the circulation of all paper in the country, and with it all its commerce.’ ” Jones v. Nellis, 41 Ill. 484. So that if stolen money is acquired by an honest taker, even from tiie thief, the title passes to such taker. “The rule of law which applies in this State, and which controls upon the facts here presented, is that even if money transferred to an honest taker was obtained by the one transferring it through a felony, yet the horn est taker, who received it without knowledge of the felony and in due course of business, would acquire good title as against the one from whom it had been stolen.” Merchants’ Loan & Trust Co. v. Lamson, 90 Ill. App. 18-20. This doctrine is fully sustained by the case of Jones v. Nellis, supra; Comstock v, Hannah, 76 Ill. 530, and many other cases cited in the above-entitled cause.

It is said by counsel for appellant that the appellee was engaged in the banking business and that as this money was obtained after Hoover was arrested and while he was in jail, that it was not acquired in due course of business. We do not understand or believe that due course of business limits the transaction to the particular place or business in which the party is engag’ed, but may extend to any legitimate business even though it may differ from that in which said party may have heretofore been engaged or was engaged at the time of the transaction. Under the statute of this State the appellee had the right to recover from the thief the property stolen from him, or receive from the thief compensation for the injuries sustained, provided he did not in doing so compound the crime. Section 43, ch. 38, Hurd’s Rev. St. Ill. (J. & A. ¶ 3543). There is no evidence of any effort at compromising the crime by the appellee. The cashier of appellee simply made a strenuous and successful effort to obtain compensation for the injuries appellee had sustained on account of the forgery of the order upon its bank. This was no more than the statute permitted, and we cannot say that such was not performed in due course of business.

It is next insisted, and with much earnestness, that the cashier of appellee acted in bad faith in securing this money, and this, in our judgment, is the crucial question in this case. Counsel for appellant in their argument say: “Appellee was not a taker in good faith without notice for the circumstances under which its cashier found the money in Hoover’s possession were such as would excite suspicion and distrust in the mind of any reasonable person and put any one on inquiry as to Hoover’s right to the money. Although the cashier, Prey, may not have known whose money it was he had every reason to believe, and did in fact believe, that it had been stolen or secured by some fraud from some one.” And then says that Frey knew Hoover was a criminal for be had passed a forged check on his bank, and knew he had no money in the morning but had learned he had a roll of money between twelve and one o’clock. He found he had spent $65 at the clothing store and deposited a certificate on appellant’s bank for $35. He told McNabb that he bet Hoover had skinned the bank. He found $10 hidden in Hoover’s mouth and $125 hidden under the stove in the Carmi jail. It further appears from the evidence that Frey inquired at the store of Mc-Nabb and. there learned that Hoover had paid for clothing purchased, part in cash and part with a certificate of deposit from appellant’s bank; that he had made inquiry of appellant’s bank to ascertain if Hoover had procured any money there but was unable to learn anything. He inquired of Hoover where the money he was paying to appellee came from and was told that á portion of it was the money he obtained from appellee and the balance he had earned, but denied specifically that he had fraudulently obtained it from appellant’s bank. We are inclined to the view that the circumstances surrounding the payment of this were sufficient to create a suspicion in the mind of appellee’s agent that the money, or a portion of it at least, had not been honestly acquired, but there is no evidence that he knew it had been stolen from appellant or any one else. No authority has been cited by either counsel affirmatively showing what is meant by bad faith, but several authorities have been cited showing that circumstances very similar in character to those in this case do not constitute bad faith; that suspicious circumstances or gross negligence will not constitute bad faith. Comstock v. Hannah, 76 Ill. 535; Jones v. Nellis, supra; Merchants’ Loan & Trust Co. v. Lamson, supra. ‘ ‘ Suspicion of defect of title, or the knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or gross negligence on the part of the taker, at the time of the transfer, will not defeat Ms title. That result can only be produced by bad faith on Ms part. The burden of proof lies on the person who assails the right claimed by the party in possession. Such is the settled law of tMs court, and we feel no disposition to depart from it.” Comstock v. Hannah, supra. This same doctrine is fully sustained by the case of Merchants’ Loan & Trust Co. v. Lamson, supra, and many other cases referred to in those opimons. Much reliance is placed by counsel for appellant upon the case of Huggins v. People, 135 Ill. 249, as showing that the appellee acted in bad faith in the taking of tMs money. The court in the case referred to found that the defendant was in possession of stolen property recently after the theft, wMch was not explained, and this it said would create a presumption under the law of guilt and warrant the jury in finding the defendant guilty. We do not regard tMs case as controlling for the reason that another and different rule is established by law with reference to money and negotiable instruments than that as to other stolen property. Jones v. Nellis, supra.

Counsel in their argument refer to the question of expenses having been paid out of this fund, and say there was no proof that appellee paid out $15 in expenses in trying to find Hoover. The proof is that Hoover and the casMer agreed that it would take $15 to cover the expenses, and that amount was paid for that purpose. We do not regard this point made as well taken.

While it is true that there were circumstances that might have created suspicion in the mind of the cashier of appellee at the time he received this money-that he had not received it honestly, yet it must be remembered that at tMs time it was not known even by the appellant itself that a forgery had been perpetrated upon its bank, and this knowledge did not come to appellant until on Monday afterwards, so that appellee’s cashier could not have known at the time that he received the money that it was money received from appellant.

We are of the opinion that the finding and judgment of the court are correct in this case and the judgment is affirmed.

Judgment affirmed.


author: Mb. Justice McBbide

text:
    Frank B. Sanders, Administrator, Appellant, v. The New Staunton Coal Company, Appellee.
    1. Executors and administrators, § 566

      —when issuance of letters of local administration improper. Under sections 1, 2, 3 of the Uniform Foreign Probate Act of June 11, 1917, providing for notice, hearing, and the probate of a foreign will, the filing of a certified copy of the will and foreign orders of probate with a petition for letters of local administration will not justify the issuance of letters of administration, as the notice, hearing and probate are jurisdictional.
    2. Wills, § 217

      —necessity of notice and hearing or probate of foreign will. The issuance of letters of local administration is void where there was no notice and hearing or probate of the foreign will in the local court, as provided in section 3, Uniform Foreign Probate Act of June 11, 1917'.
    3. Executors and administrators, § 566

      —when lack of jurisdiction to issue letters of local administration may be raised. Lack of jurisdiction to issue letters of local administration on account of failure to give notice and hearing on probate of a foreign will may be urged in defense of citation proceedings issued on petition of the local administrator so appointed.
    4. Executors and administrators, § 51

      —when order issuing letters of administration may be vacated. A probate court may set aside its order issuing letters of administration after the expiration of the term, where it appears it was without jurisdiction to grant the letters.
    5. Wills—repeal of laws in conflict with Uniform Probate Act. All laws and parts of laws in conflict with the Uniform Foreign Probate Act were repealed by that act in 1917.

      Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed April 12, 1919.
    Hans Wulff and Hiles & Simpson, for appellant.
    D. G. Williamson, for appellee.

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

   Mb. Justice McBbide

delivered the opinion of the court.

It appears from this record that George Lincoln Sands died in St. Louis, Missouri, on November 21, 1916, leaving a will which was duly admitted to probate in the Probate Court in the City of St. Louis, Missouri, and that the Mercantile Trust Company of St. Louis, Missouri, was appointed and qualified as executor of said will. That a copy of,said will, together with the certificates showing probate of the same, were filed in the office of the Probate Court of Madison county, Illinois. That appellant filed a petition setting forth the above facts and that the decedent died seized of real and personal estate and that his personal estate was estimated to be worth about $100,000, to which petition a copy of said will and probate was attached; whereupon, the court issued letters to appellant as public administrator in the county of Madison, Hlinois. After letters had been issued, appellant sought to obtain information from the New Staunton Coal Company, as to property, papers, etc., in its hands belonging to the estate of Sands. He also made inquiry of the executor of said estate in Missouri but was unable to obtain any information with reference to stock, certificates or other property belonging to this estate. Thereupon, he filed a petition for a citation against the New Staunton Coal Company averring that said company had paid, since the death of Sands, dividends amounting to about $40,000, and that there were claims against the estate of said decedent, in the State of Illinois, particularly an inheritance tax, and alleging that said coal company has in its possession money and effects, books of account, evidences of indebtedness and other papers showing that it has possession of property belonging to said estate and asks that said company be cited to show and exhibit such papers. The New Staunton Coal Company appeared in answer to such citation and entered a motion to quash the same and after-wards an amended motion was also entered by which it was alleged that the court was without jurisdiction to issue the letters of administration to appellant, and that he had no interest in the administration of the estate, and that the citation was issued without authority of law. Upon a consideration of this motion the court found that it was without jurisdiction to issue such letters of administration or to issue such citation and set aside the order granting letters of administration and the citation. This was appealed to the Circuit Court where the order of the Probate Court was affirmed and the appellant prosecutes this appeal, to reverse said order.

The principal errors assigned and argued are: First, that the court erred in finding that the Probate Court was without jurisdiction to issue letters of administration to appellant; second, that the court erred in finding that said court was without jurisdiction to order the issuing of the citation herein upon the petition of appellant.

Other questions have been argued by counsel for both parties but as we view it the rights of the parties so far as are necessary to be determined by this record can be disposed of by a decision of the foregoing questions. The question of the jurisdiction of the Probate Court to issue letters of administration is largely a matter of statutory right and the construction thereof by the courts. The Uniform Foreign Probate Act, approved June 11, 1917, provides how and under what conditions a will admitted to probate in a foreign State may be admitted to probate in this State. Section 1 provides, that a will duly proved, allowed and admitted to probate outside of this State may be allowed and recorded in the Probate Court of any county in this State in which the testator shall have left any estate. Section 2. When a copy of the will and the probate thereof duly authenticated shall be presented by the executor or by any other person interested in the will, a petition for probating the same must be filed and a time must be appointed for a hearing thereon, and such notice must be given as required by law on a petition for the original probate of a domestic will. Section 3. If, upon a hearing, it appears to the satisfaction of the court that the will has been duly proved, allowed and admitted to probate outside of this State, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this State, it must be admitted to probate, which probate shall have the same force and effect as the original probate of a domestic will.

The Probate Court was not authorized to grant letters testamentary until the will had been probated in Madison county. Section 7, ch. 148, Rev. St. Ill. (J. & A. ¶ 11548). It is not disclosed by the record who it was but some one filed a certified copy of the will of the deceased and orders admitting it to probate in the State of Missouri, in the Probate Court of Madison county, Illinois, and this was attached to appellant’s petition for letters of administration, and thereupon letters of administration were immediately issued to appellant.

Was this sufficient to give the court jurisdiction to issue such letters Of administration? We think not. The statute provides that a time must be appointed for a hearing thereon and such notice must be given as required by law as on a petition for the original probate of a domestic will. If, upon the hearing, it appears to the satisfaction of the court that the will has been duly proved, allowed and admitted to probate outside of this State and executed according to the law of the said State, or the laws of this State, then it may be admitted to probate, and letters testamentary may be issued thereon.

It appears from, this record that the letters testamentary were issued herein without any notice having been given or any hearing had by the court, as required by the foregoing statute. Counsel for appellant contends that even if letters were granted without notice and without hearing, that such is a mere irregularity and cannot be questioned in the manner pursued by the appellee herein. We recognize that if it were only an irregularity there might be some force in the contention of appellant, but as we view it the giving of the notice and hearing required by the statute were jurisdictional. An order issued granting letters of administration without such notice would be of no more force than the rendering of a judgment without process and service. It seems to us that an order entered under such circumstances is a nullity. The Supreme Court in commenting upon the acts necessary to acquire jurisdiction to issue letters of administration under a former statute say: “We think, before this court could get jurisdiction of this case to act, it should have aErmatively appeared to the court that there was no relative within the State, or creditor, to whom administration might be committed. It should further have aErmatively appeared that the application for the appointment of an administrator on the estate was made by a party interested in the estate. Neither of these facts, and they are fundamental facts, are shown, and the question arises, must this court presume they did exist, for it is a rule that intendments as liberal will be indulged in its favor, as would be to the proceedings of the Circuit Court. Propst v. Meadows, 13 Ill. 169. But this requirement of the statute goes to the very origin of the proceedings. It is the existence of these facts which awakens the power of the court— which calls it into action. They are fundamental facts, and although the court had cognizance of the general subject, it not appearing by the record that the facts were such as to give the court jurisdiction in the particular case, we are not authorized to presume their existence. * * * The County Court having no jurisdiction to appoint this administrator, the subsequent order of sale of the land, and the sale under the order by him, are necessarily void.” Unknown Heirs of Langworthy v. Baker, 23 Ill. 489.

In a recent case decided by the Supreme Court of this State it was held that where a devisee was named in the will, but was supposed to have lost his interest by reason of a codicil, had not been included in the petition to probate the will but the will was probated and letters testamentary issued on November 8, 1910, that thereafter on January 25, 1912, one of the executors called attention of the Probate Court to this fact, it was held by the Supreme Court that the order probating this will was void and another probation of the will was required under a proper petition. The court, in commenting upon the effect this deficient petition had, said: “Where that is the case it has been held that there is an absence of jurisdiction, -and an order admitting a will to probate will be set aside and declared of no effect when the want of jurisdiction is brought to the attention of the court. Wright v. Simpson, 200 Ill. 56; Floto v. Floto, 213 Ill. 438; Rowlett v. Moore, 252 Ill. 436; Schofield v. Thomas, 231 Ill. 114.” Mosser v. Flake, 258 Ill. 233.

It is insisted that this proceeding is a collateral attack upon the order of the court granting the letters, also that the court had no authority to set aside his former order after the adjournment of the term of court. If it appeared from the record that the court had jurisdiction and no fraud was shown, then there might be some reason in this contention, but where jurisdiction is wanting, an order entered under such circumstances may be attacked either directly or collaterally. “A decree or judgment rendered in a proceeding wherein jurisdiction of the court is wanting is absolutely void and may be called in question at any time by any person affected thereby, either directly or collaterally.” Denk v. Fiel, 249 Ill. 431. Again, the court, in the same case, in referring to and commenting upon the effect of collateral attacks says: “This court has many times decided that such a bill is in the nature of a collateral attack on the proceeding sought to be impeached and that only jurisdictional questions could properly be raised. Some of the cases in this court which so hold are Moffitt v. Moffitt, 69 Ill. 641; Harris v. Lester, 80 Ill. 307; Bradley v. Drone, 187 Ill. 175, and Frothingham v. Petty, 197 Ill. 418.” Where there is want of jurisdiction to make the order it is only necessary that it be brought to the attention of the court making such order. Mosser v. Flake, supra. When the court ascertained that the letters issued to appellant were void, it certainly had the right to set such order aside and very properly also quashed the citation. The basis of his right to the citation was that he was administrator. Without this he had no right to the writ. It has been held by the Supreme Court that where letters had been granted to an administrator de bonis non and such a one brought suit upon the former administrator’s bond, that it might be shown in defense of the action on the bond that his appointment as such administrator de bonis non was without authority of law and void. Munroe v. People, 102 Ill. 406.

It is contended by counsel for appellant that the court had the right to issue these letters under sections 42 and 43 of chaper 3 of the Revised Statutes of Illinois (J. & A. ¶¶91, 92), but without commenting upon its right to obtain letters under these sections it is sufficient to say that under the Uniform Foreign Probate Act of 1917 all laws and parts of laws in conflict or inconsistent with such uniform act were repealed, and even if such right did exist it was taken away by the Uniform Foreign Probate Act. We deem it unnecessary to further comment upon these questions or to determine the effect such administration would have upon the interests of creditors of the estate in Illinois, or the inheritance tax laws of the State of Illinois, as these are matters that can only be properly considered when an administrator is legally appointed.

We are of the opinion that the court did not err in its finding and judgment in this ease, and the judgment of the lower court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Dibell

text:
    McNeil & Higgins Company, Appellee, v. William Hamlet et al. Louis J. Yager, Appellant.
    Gen. No. 6,552.
    1. Partnership, § 255

      —how retiring partner relieved from, liability for subsequently contracted debts. A retiring partner can relieve himself for liability for subsequently contracted debts, by actual notice of the dissolution, as to those accustomed to deal with the firm, regardless as to how such notice reaches the creditor.
    2. Witnesses, § 232

      —when cross-examination unduly restricted. In an action against former partners to recover the price of goods purchased after the dissolution of the firm from one who claimed to have had no notice of the dissolution, cross-examination of one of the partners on behalf of the retiring partner as to a conversation with respect to dissolution had between such partner and one of plaintiff’s salesmen, held unduly restricted by the exclusion of leading questions.
    3. Partnership, § 255

      —when direction of verdict for creditor against retired partner improper. It is error to direct a verdict in favor of a subsequent creditor of the firm against a retired partner for partnership debts, where there was evidence that the remaining partner discussed the dissolution with the creditor’s salesman 4 days before dissolution and that after dissolution bills were paid by the personal check of the remaining partner and that notice was published in the local paper.

      4. Partnership, § 255

      —when erroneous to exclude evidence of notice of dissolution. In an action against former partners on a debt contracted subsequent to dissolution, it is erroneous to exclude evidence of notice of dissolution published in a local paper, without giving the defendant an opportunity to show the character of the notice and the prominence of the paper.
    5. Appeal and error, § 1793

      —when judgments reversed as to both defendants. In an action against former partners on a debt contracted subsequent to dissolution, alleged judgments having been entered separately against the two partners, and plaintiff insisting that they constituted only one judgment, both will be reversed on finding one of the judgments erroneous.
    Appeal from the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded.
    Opinion filed February 8, 1919.
    Clarence W. Diver, for appellant; Charles H. King, of counsel.
    Albert E. Beath, for appellee; Oscar B. McGlasson, of counsel.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

In September, 1917, McNeil & Higgins Company brought this suit in the court below against William Hamlet and Louis J. Yager, who the declaration alleged were trading under the firm name of Yager & Hamlet. Hamlet was defaulted. Yager filed a plea in abatement, denying the partnership at the time of the transactions involved, and also a plea of the general issue. The declaration and pleas were each duly verified. There was a jury trial as to Yager, and at the close of the evidence the court directed a verdict against him. Motions by him for a new trial and in arrest of judgment were denied. There- was apparently one judgment against Hamlet and another against Yager, for slightly different amounts. Yager prosecutes this appeal.

Yager and Hamlet had been partners in the business of selling groceries, clothing and shoes in the Village of North Chicago in Lake county. They dissolved that partnership by written articles on August 12, 1916, and Yager retired from the business. There is proof slightly tending to show that Yager and Hamlet had been buying goods of McNeil & Higgins Company before the dissolution and that Hamlet continued that course of dealing after the dissolution. Hamlet continued the business until about August 1, 1917. There is nothing in this record to show for what kind of merchandise this suit is brought nor whether it was the same kind of merchandise in which Hamlet & Yager had been dealing, nor is there any proof to show when the goods here sued for were sold. An attorney for McNeil & Higgins Company made a statement during the trial, which implied that these g-oods were sold on July 20,1917, nearly a year after the dissolution. This statement was not proof but bound plaintiff. The chief litigated question is whether Yager, the partner who retired, is bound for this bill.

Where one member of a firm retires and the firm name is still used, then, as to those accustomed to deal with the firm and who continue to do so after the dissolution or retirement, the retiring members can only relieve themselves from liability by giving actual notice. As to persons accustomed to deal with the firm and so continuing, the partnership is presumed to continue until they have actual notice of the change; but it is immaterial how that notice is given, if actual notice dqes reach the former correspondents of the firm. Page v. Brant, 18 Ill. 37; Ellis’ Adm’rs v. Bronson, 40 Ill. 455; Holtgreve v. Wintker, 85 Ill. 470; Arnold v. Hart, 176 Ill. 442; 30 Cyc. 670, 671; 20 R. C. L. 964, 965.

Hamlet continued the use of an automobile truck which had on it the words “Hamlet & Yager.” There was no name on the store. At the time of the dissolution the firm had letterheads bearing the firm name at the top. Hamlet continued to use those letterheads after the dissolution. There is no proof that he ever wrote to McNeil & Higgins Company on those letterheads, nor whether he signed letters written on said stationery “William Hamlet” or “Yager & Hamlet.” If McNeil & Higgins Company received letters from? him on such letterheads, they should have been introduced in evidence. A traveling salesman for McNeil & Higgins Company visited this store about every 2 weeks. Plaintiff called Hamlet as its witness and he testified in chief that he always paid his bills to McNeil & Higgins Company by checks signed “Yager & Hamlet.” On cross-examination counsel for Yager placed in his hands two checks, payable to the order of McNeil & Higgins Company, one dated May 1, 1917, for $400, and one dated June 18, 1917, for $200, each of which was signed “William Hamlet” and not “Hamlet & Yager” or “Yager & Hamlet.” Hamlet then receded from his statement that he had paid McNeil & Higgins Company for goods bought after the dissolution by checks signed “Yager & Hamlet” and, so far as now appears, all such payments may have been paid by checks signed by him personally. Hamlet testified that 4 days before the dissolution he told plaintiff’s traveling salesman that he was considering taking over the business himself, and that he discussed that matter with the salesman. He was asked by Yager’s counsel if he discussed that with said traveling salesman after the dissolution. He gave answers indicating that he did not discuss that immediately, and that he did not recall whether he did or not. Counsel for Yager sought to put leading questions to him on this subject, to which the court sustained objections, and Hamlet was finally induced to say “No” to the question. Two things are obvious. Hamlet was a witness for the plaintiff and Yager’s counsel had a right to cross-examine him, on that subject and to put leading questions to him when he appeared to hesitate. Moreover, it would be probable that Hamlet would dis.cuss his having purchased the entire business with the salesman of whom he bought goods and with whom he had already discussed the advisability of that step. We are of the opinion that the examination of Hamlet by Yager’s counsel was improperly restricted. Yager sought to show that immediately upon the dissolution he published notice thereof in a newspaper published in North Chicago and the extent of the circulation of said newspaper, but he was not permitted to do so. In Page v. Brant, supra, it was held that publication of a notice in a newspaper did not amount in law to notice to prior dealers with the firm, but that it was proper evidence for the consideration of the jury in determining the fact of actual knowledge or notice. We think Yager should have been permitted to show at least what the noiice was which he published and the prominence of the paper in which he published it, so that before the court ruled upon the testimony it would know what all the facts pertaining to said publication were. Again, Hamlet having had a conversation with plaintiff’s salesman 4 days before the dissolution, in which Hamlet discussed the proposed taking over of the business by himself, and this having been followed by remittances to plaintiff by checks signed by Hamlet individually and not in the firm name, and it appearing by the statement of plaintiff’s counsel that these remittances were before the present bill of goods here involved was purchased, and it being a fair inference from the absence of other proof that all Hamlet’s checks to plaintiff after the dissolution may have been signed in his own name, we think there was such evidence tending to show notice to plaintiff that Hamlet was doing business in his own name only, that the court was not authorized to direct a verdict for plaintiff.

The court below undertook to enter or the clerk wrote in the record two judgments on the same day in this case, one against Hamlet, which did not describe him as impleaded with Yager, trading as Yager & Hamlet, and the other against Yager, without describing him as impleaded with Hamlet. The two judgments are not for the same precise amount. They are not in the proper form of judgments at common law, but are rather directions to enter judgments. Plaintiff insists that these two judgments are only one, and are a unit, and are to be treated as a unit. We therefore take plaintiff at its word, and reverse both so-called judgments and remand the cause for another trial.

Reversed and remanded.


text:
    Alice Shank, Appellant, v. Modern Woodmen of America, Appellee.
    Gen. No. 6,594.
    1. Pleading, § 432

      —what is effect of videlicet on proof of death. In an action on a mutual benefit certificate based on the presumption of death after 7 years’ absence, the date of death being laid under a videlicet, permits proof of death at any time.
    2. Death, § 2

      —when presumed. The presumption of death arising from 7 years’ absence is sufficient to support recovery on a mutual benefit certificate.
    3. Instructions, § 118

      —when instruction on presumption of death erroneous because not based on evidence. In an action on a mutual benefit certificate based on the presumption of death after 7 years’ absence, it is erroneous to instruct that the presumption of death does not arise if there were reasons why the insurer did not want his relatives to know his whereabouts, where there is no substantial evidence in support of such theory.
    4. Death, § 2

      —when erroneous to require jury to find whether person is in fact dead. In an action on a mutual benefit certificate based on the presumption of death after 7 years’ absence, it is erroneous to instruct the jury to determine whether the insurer “was in fact dead.”

      5. Courts, § 152

      —when decision relating to instruction not authority. A decision affirming a judgment for the plaintiff is not authority in support of an instruction given at the request of the defendant and referred to in the opinion merely to show how favorable the instructions were to the defendant.
    6. Death—when instruction relating to presumption of is erroneous. In an action on a benefit certificate based on the presumption of death after 7 years’ absence, it is erroneous to instruct that the mere fact of the disappearance of the insured had nothing to do with the question.
    7. Trial, § 270

      —requisites of special interrogatories. Special interrogatories must be based on the evidence and relate to a material fact.
    Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed February 8, 1919.
    A. J. Clarity and B. B. Tiffany, for appellant.
    Truman Plantz, E. D. Beynolds and George G. Perrin, for appellee.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

In May, 1900, the Modem Woodmen of America, a fraternal beneficiary society, issued a benefit certificate upon the life of Isaac I. Shank, payable to his wife, Alice Shank, upon his death, while a member of said society in good standing. On May 30, 1908, he disappeared and has never since returned to his home: TTis wife paid the dues upon said certificate until the expiration of 7 years from the time of his disappearance, and on November 22, 1916, brought this suit on said certificate, the cause of action being based on the claim that, because of his absence for 7 years, he was then legally presumed to be dead. A declaration of three counts and two additional counts was filed. The first three counts allege his death “on, to-wit, the 30th day of May, A. D. 1908,” but the use of the videlicet in that allegation permitted proof by her of his death at any time. (Rose v. Mutual Life Ins. Co., 144 Ill. App. 434.) The additional counts alleged his death on the 31st day of May, A. D. 1915, that date also being stated under a videlicet. Defendant filed numerous pleas. To some of these demurrers were sustained, to others there were replications and issues joined thereon. The pleadings need not be stated further, as no questions are raised thereon. There was a jury trial and a verdict for defendant. A motion by plaintiff for a new trial was denied. Defendant had a judgment in bar, and plaintiff appeals.

The principles upon which plaintiff’s right to recover depend are established for this State in a harmonious line of decisions: Whiting v. Nicoll, 46 Ill. 230; Johnson v. Johnson, 114 Ill. 611; Reedy v. Millizen, 155 Ill. 636; Hitz v. Ahlgren, 170 Ill. 60; Policemen’s Benev. Ass’n v. Ryce, 213 Ill. 9; Kennedy v. Modern Woodmen of America, 243 Ill. 560; Donovan v. Major, 253 Ill. 179; Stevenson v. Montgomery, 263 Ill. 93; Apitz v. Supreme Lodge Knights and Ladies of Honor, 274 Ill. 196. Those principles are thus stated in Reedy v. Millizen, supra:

“Absence for 7 years without the whereabouts being known, and without having been heard from during that period, raises, at the expiration of this time, the presumption of death. (Citing authorities.) When, however, a thing is shown to exist, its continuance is presumed until the contrary is shown or a conflicting presumption arises. Hence, unless it be shown that death occurred prior to. the expiration of the 7 years ’ absence, or some conflicting presumption arises from the facts proved which would overcome the presumption of the continuance of life, the presumption of life would obtain until the full expiration of the period, when the contrary presumption of death, from the continued absence, would arise. While, therefore, it is true that there is no presumption that death occurred at any particular time within the 7 years, it is also true that, in the absence of contravening facts or controlling presumptions, it will be presumed that life continued during the entire period.”

Inasmuch as we conclude that the cause must be submitted to another jury, we deem it unnecessary to give the details of the evidence, except to say that Shank lived at Lena, Illinois, and was in the business of buying live stock in the surrounding neighborhoods and shipping them to market in railroad cars; that he had a wife and a daughter, and an aged father, to each of whom he was much attached; that he had some debts but also had assets, and also expectations to accrue on the death of his father, and was not in financial difficulty nor being harassed by his creditors; that he was in poor health because of some heart trouble from which he suffered severely at times; that he left his home on May 30, 1908, to get a shipment of cattle, expecting to return home the following week; that his course of business caused him generally to send home his old clothes in a valise after he had his cattle loaded; that he did send home such valise and old clothes at this time and with them a letter to his wife, in which he said that he was' going to tie a stone around his body and drown himself in the Mississippi Eiver that evening; that he changed clothes in Savanna, where this letter was dated, between box cars in the railroad yards; that he bought a railroad ticket for Omaha, which ticket was used; and that he never afterwards returned to his home, and was never afterwards heard from except through hearsay rumor that a man, not a witness, had seen him in Omaha soon afterwards. His family caused inquiries to be made in a search for him. He belonged to two societies besides the Modern Woodmen, and their officers sought to find traces of him. In this state of the evidence the court, at the request of the defendant, gave the jury the fifth instruction, which was to the effect that if there were reasons why Shank did not want his relatives and friends to know of his whereabouts, then the presumption of his death from Ms absence for 7 years or more would not exist. We are of opimon that this instruction was erroneous. The reasons referred to might be very slight. They might be overcome by other considerations of his love and affection for Ms family, or his prospect of inheriting from his aged father, and otherwise. There was no substantial evidence of any such reasons. All that can be said is that some persons might suspect the existence of some such reason from some of the evidence in the case. No doubt, if there were such reasons of a substantial character shown in the evidence, that would be a matter to be considered by the jury in determining whether his death was to be presumed from his absence for 7 years, but the court could not properly say to the jury that by such evidence the presumption of death was overcome. The court gave, at the request of the defendant, the sixth instruction, which reqmred the jury to determine whether said Shank “was in fact dead” at the commencement of this suit. The jury would naturally infer from this instruction that some one must be produced who could swear positively that he had seen Shank die, or had seen his dead body. This instruction practically excluded the right of plaintiff to recover upon the presumption of death from his absence of 7 years. It is said that this instruction is approved in Policemen’s Benev. Ass’n v. Ryce, supra. The instruction in that case was given at the request of the defendant, who was defeated, and no error was assigned upon that instruction, but the court there set out three of the instructions which had been given at the request of the defendant in order to show how favorable to defendant the instructions had been. The judgment there was affirmed. As the correctness of that instruction was not raised in that case, it is not an authority to support the instruction. By instruction No. 7, given at the request of defendant, the jury were told, among other things, that the mere fact of the disappearance of Shank had notMng to do with the question whether or not defendant was liable. The disappearance of Shank was one of the necessary links in plaintiff’s case, and this instruction erroneously told the jury that it had nothing to do with the issues. Some things in these instructions are supposed to-be supported by Lichtenhan v. Prudential Ins. Co. of America, 191 Ill. App. 412. In that case the defendant was the appellant, and was defeated in the Appellate Court, and the substance of the charge of the trial court favorable to the defendant was stated, but an approval of that part of the charge does not follow from that decision. At the request of defendant the court submitted three special interrogatories, to be answered by the jury. The first was whether Shank committed suicide at Savanna on May 30, 1908, by jumping into the Mississippi River. The second was whether Shank died within 18 months from May 30, 1908; and the third, whether Shank was living on September 1, 1908. There was no issue and no evidence which justified the second interrogatory. We think the third interrogatory also was improper. If it was proper to ask whether he was living on that date it would have been equally proper to present such an interrogatory as to each date from May 30, 1908, until after the expiration of the 7 years. The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Fred Brandt, Appellee, v. Joliet & Eastern Traction Company, Appellant.
    Gen. No. 6,600.
    1. Raxlboads, § 284

      —what is effect of change of control on requirement as to time for maintenance of cattle guards. Under section 62, ch. 114, Rev. St. (J. & A. 1f 8811), requiring railroad corporations to maintain cattle guards within 6 months after a line is open for use, it is immaterial how often the railroad has changed hands; the 6-month period dates from the time of first operation.
    2. Railroads, § 306

      —when refusal of instruction in action for value of cattle killed through lack of cattle guards not prejudicial error. In an action for the value of cattle killed through lack of cattle guards, brought under section 62, ch. 114, Rev. St. (J. & A. 1f 8811), it is not prejudicial error to instruct that the defendant is liable upon proof of certain facts, without requiring proof that the railroad has been in'operation for 6 months, where there is no evidence contradicting positive evidence that it has been so operated.
    3. Railroads, § 306

      —when instruction on measure of damages for loss of cattle due to absence of cattle guards not erroneous. In an action for wrongful death and injury of cattle through failure1 to provide cattle guards, brought under section 62, ch. 114, Rev. St. (J. & A. jf 8811), it is not error to instruct that the measure of damages is the fair cash value of the cattle before the accident, where the railroad company took possession of all the injured and killed cattle except one slightly injured animal, and the verdict shows that the jury could not have allowed more than the evidence warranted for the injury to this animal.
    4. Rati,roads, § 297

      —what is purpose of statute requiring cattle guards. Section 62, ch. 114, Rev. St. (J. & A. If 8811), in requiring cattle guards on railroads, is intended to protect owners of stock running at large, and it is immaterial how the stock came to be on the highway.
    5. Trial, § 241

      —non-necessity that verdict find amount of damages and attorney’s fees separately. In an action for wrongful death of cattle through failure to provide cattle guards, it is not necessary that the verdict find the amount of damages and attorney’s fees separately.
    Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed February 8, 1919.
    Rehearing denied and opinion modified April 8, 1919.
    Garnsey, Wood & Lennon, for appellant
    Albert H. Krusemark, for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The Joliet & Eastern Traction Company operates an interurban line between Joliet and Chicago Heights and runs substantially east and west. Frankfort in Will county and Matteson in Cook county are intermediate stations about 7 miles apart, and it has a private right of way between those stations. A north and south highway is on the line between said two counties about 3 miles east of Frankfort. On October 11, 1916, there were no cattle guards nor wing fences on the east side of the county line road where said railroad crossed the county line road and went into its own private right of way, nor were there any such wing fences or cattle guards at the next crossing east thereof. - At nightfall that evening Fred Brandt had a bunch of cattle in a field of his own some distance north of said crossing and on the west side of the county line road. They escaped therefrom and went onto the right of way of the company east of said highway, and were grazing by the side of the track some 1,000 or 1,400 feet east of the county line road. About 11:30 p. m. a passenger car on said road approached from the east. The cattle evidently saw and heard it and rushed upon the track and started to run west in front of the car. Seven of them were struck. Part of them were killed and the rest were injured. The men in charge of the car ran it back to the next highway east where the company had a telephone. The conductor communicated with the train dispatcher and then came on west to Frankfort. A section foreman and men under him then went east with a car, part of which was a flat car, and killed two of the injured cattle and loaded two on the flat car and took them to Frankfort. Brandt had reached the scene of the accident before this flat car got there. One heifer was injured very slightly. He drove that one home and kept it. The next morning the section foreman and men under him came in the flat car and took away the rest of the dead and injured cattle. They were turned over by the section men to Folkers, a butcher at Frankfort, and he took off the hides from all the cattle and the company carried them to Joliet. Folkers loaded the carcasses upon a car of the company under the direction of the company and the company hauled them to Joliet. Brandt never had anything to do with these six animals after the accident nor did he receive any avails therefrom.

Brandt brought this action against the traction company under section 62 of chapter 114 of the Revised Statutes (J. & A. ¶ 8811), because of the absence of wing fences and cattle guards. Demurrers were sustained to the original declaration and additional counts, and an amended declaration was filed, to which defendant filed various pleas, to which there were demurrers and replications. The assignment of errors here does not question any ruling on the pleadings. There was a jury trial and plaintiff had a verdict and a judgment for $594.99, from which defendant appeals.

The statute requires that every railroad corporation shall, within 6 months after any part of its line is open for use, do certain things, among which is to maintain fences and cattle guards at highway crossing sufficient to prevent cattle from getting onto such roads. Appellant contends that appellee did not prove that appellant had operated the road 6 months before the accident. We have carefully examined the evidence on that subject in the record and are satisfied that it is thereby established, both by positive evidence and by indirect'testimony, that this company had operated the road at that point for considerably more than a year. Some of appellant’s employees, who were witnesses, had not been at work for it that long and had not known the road that long, but that did not detract from the evidence of other witnesses on that subject. True, there are allusions to two companies and to a receivership, but that evidence does not show when those respective companies held the road or when the receiver held it, and does not contradict the testimony of the witness who testified that this company had operated the road almost a year and a half to his knowledge. Moreover, we understand this statute to require the erection of fences and cattle guards at highway crossings within six months after any part of the line is open for use, and if a railroad company acquires the ownership of a road already in existence and in operation and which has no fences or cattle guards, we do not understand that it is entitled to 6 months after its acquirement of the old road within which to erect such fences and cattle guards. The statute does not mean that if a railroad changes ownership every 5 months its owners will never be required to establish fences and cattle guards. Toledo, P. & W. Ry. Co. v. Arnold, 51 Ill. 241.

In that connection appellant contends that it was error to give the sixth instruction for appellee, which first stated the duty of appellant under the statute to erect such cattle guards within 6 months after the road has been opened and operated, and then told the jury that if they found certain things from the evidence appellant would be liable in this case, and did not leave the jury to determine whether the road had been open and in operation 6 months. The omission left the instruction insufficient, and if there had been any conflict in the evidence on that subject the omission would have been erroneous. But there is positive evidence that appellant had operated this road more than one year, and circumstantial evidence to the same effect, and no evidence to the contrary, and under this condition of the evidence it was not error to treat that fact as proved.

Said sixth instruction also told the jury that, in the case stated, appellant would be liable for the fair cash market value of such cattle at the time and place they were killed or injured. Appellant contends that the instruction should have stated that damages were recoverable at the difference between the fair cash market value of such cattle just before they were killed or injured and the same value immediately after the injury, and that it was the duty of the appellee to take reasonable measures to diminish the loss, and that he did not show that he did this. We are of the opinion that, as the agents of the company took charge of the. six cattle and removed them and killed part of them and appropriated the proceeds, the instruction as given was proper as applied to the six cattle. One heifer had only a broken tail and appellee has that animal. He testified the damage to it was $25. He also testified that the value of that heifer before she was hurt was $60. Appellant contends that this instruction authorized the jury to allow appellee $60 for this animal, although he has the animal and only claimed a damage, of $25 to it. The instruction could be so understood. Except appellee, no witness testified to the value of that heifer. Witnesses on both sides testified as to the value of all the other animals killed or injured. The verdict was for $504.99. The undisputed evidence as to the attorney’s fees fixed them at $125. As that amount was not disputed, the verdict of the jury as to the cattle was $379.99. If to the lowest estimate made by any witness as to the value of the other six cattle were to be added $60 for this broken tail, the verdict would necessarily have been higher than the jury rendered. It is therefore plain that the jury did not allow $60 for the breaking of the heifer’s tail. Notwithstanding the language of the instruction it is not reasonable to suppose that the jury would allow appellee $60 for the injury to that heifer when the only witness on that matter testified the injury was only $25. Appellee introduced testimony of several witnesses, farmers and stock buyers, as to the value of the six cattle just before the injury, and the jury did not allow as much as this evidence would have justified. We conclude the jury either allowed nothing for the broken tail or not to exceed $25 therefor.

Appellant contends that appellee should have confined his cattle upon his own premises, and that the condition of his fences, and whether his cattle got into the highway by his neglect or because they were unruly was a material inquiry, which it should have been permitted to pursue. We are of opinion that the statute was intended to require cattle guards and fences to prevent cattle at large in the highway from getting upon the right of way, regardless of the question how said cattle came to be in the highway. Illinois Cent. R. Co. v. Davidson, 225 Ill. 618.

Appellant contends that the verdict should have found the amount of the damages and the amount of the attorney’s fees separately. It did not ask any instruction to that effect, and its contention seems to be answered by Peoria, D. & E. Ry. Co. v. Duggan, 109 Ill. 537. The authorities are clear that the attorney’s fees may be recovered in the action for damages. We are of opinion both may be united in a lump sum in the verdict as properly as the damages to each of the six cattle, or as the amount due on a note and the amount due for a bill of goods in an action of assumpsit. The judgment is therefore affirmed.-

Affirmed.


text:
    Anton Kristel, Appellee, v. Michigan Central Railroad Company, Appellant.
    Gen. No. 6,614.
    1. Aliens, § 9

      —right to sue. Right of an alien enemy to sue in the courts of this country during war time discussed, but not decided.
    2. Evidence—what judicially noticed. Courts will take judicial notice of the President’s proclamation fixing the status of alien enemies.
    3. Evidence—what judicially noticed. Courts will take judicial notice that the United States Government has an alien property ' custodian.
    4. TbtaTi, § 64

      —when motion to withdraw juror and continue case too late. A motion to withdraw a juror and continue a case until after the war, on the ground that the plaintiff is an alien enemy, comes too late after plea in bar and the close of the plaintiff’s case, where there is no showing of diligence.
    5. Aliens, § 9

      —prosecution of case to judgment and staying of execution until after war. On motion to withdraw a juror and continue the case on the ground that the plaintiff is an alien enemy, after the plaintiff has put in his case, the court might let the case proceed to judgment and stay its collection until after the war.
    6. Depositions, § 22

      —when of foreign witnesses may not he harred. In an action in Illinois for personal injuries received in another State, the plaintiff cannot bar depositions of foreign witnesses by producing the witnesses in court.
    7. Witnesses, § 206

      —when cross-examination ■ of improper. In an action in Illinois for personal injuries received in another State, the defendant having introduced depositions of foreign witnesses, the plaintiff has no right to cross-examine these same witnesses, whom he has produced in court.
    8. Witnesses, § 224

      —what is proper cross-examination of witness testifying as to finding of heel of shoe near railroad crossing. A witness in an action against a railroad company for personal injuries having testified that he found the heel of a shoe near the crossing, may be asked on cross-examination if he did not tell others that he picked it up near where the plaintiff was lying, a considerable distance from the crossing.
    9. Appeal and erbob, § 1241

      —when party may not complain of instructions. A party cannot be heard to complain of an instruction because of the same language which he has embodied in his own instructions.
    10. Instructions, § 98

      —when instruction relating to interest of party properly refused. An instruction having been given concerning the interest or lack of interest of the witnesses in general, it is not error to refuse an instruction authorizing the jury to consider the interest of the plaintiff in weighing his testimony.
    11. Railroads, § 697

      —what constitutes variance in action for injuries received at grade crossing. In an action against a railroad company for personal injuries received at a grade crossing, plaintiff cannot recover on evidence showing that the accident occurred while he was walking on the right of way some distance from the crossing.
    12. New trial, § 51

      —what not covered by objection in motion for, that verdict is against evidence. An objection in a motion for a new trial that the verdict is against the evidence, applies only to the general verdict and not to answers to special interrogatories; such special findings not having been included as ground for new trial cannot be assigned as error on appeal.
    13. Railroads, § 738

      —when contributory negligence in passing over tracks at crossing is shown. Evidence reviewed and held to indicate that the plaintiff, in an action for damages for personal injuries received in a railroad grade crossing accident, proceeded carelessly across the tracks after one train had passed without looking for other approaching trains.
    Appeal from the Circuit Court of Will county; the Hon. Arthur J. De Selm, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed February 8, 1919.
    Rehearing denied and opinion modified April 9, 1919.
    0 ’Donnell, Donovan & Bray, for appellant; Winston, Strawn & Shaw, of counsel.
    Finn & Miller, for appellee; Munson T. Case, of counsel. ■

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On the evening of September 26,1916, Anton Kristel was struck by a westbound passenger train on a sidetrack of the Michigan Central Railroad in the City of Gary, Indiana, and was very seriously injured. He brought this suit in the Circuit Court of Will county, Illinois, against the railroad company to recover damages for said injuries and filed a declaration containing ten counts, in each of which he alleged that the accident occurred on the Taft street crossing, and in which he alleged negligent operation of the train; failure to give the statutory signals; permitting an automatic bell signal, upon which plaintiff relied, to be out of order, so that it failed to ring; that the headlight of the locomotive that struck him, was dim and weak and insufficient; that defendant maintained street lights at said crossing and permitted them to be unlighted at the time in question; that when plaintiff was struck he fell on the engine in a position of peril, and the railroad servants failed to exercise ordinary care to discover his position of peril and stop the train; that defendant’s servants wilfully operated said engine and train so as to strike him, and drag bim, and wilfully failed to keep any lookout for persons on said crossing. Each count alleged that plaintiff was in the exercise of due care. Defendant filed the general issue, and there was a trial and a verdict for plaintiff for $11,000. Defendant moved for a new trial, and that motion was denied. Plaintiff had judgment on the verdict. Defendant appeals. There was no evidence of any wilful misconduct by the servants of defendant, and no evidence that defendant had maintained the street lights at the Taft street crossing. Gates were maintained at said crossing in the daytime, and no gates were down when this accident occurred, but plaintiff testified that he knew the gates were not operated after 6 o’clock p. m. and this accident happened at 8 p. m. or later, so that plaintiff did not rely upon gates for protection.

On cross-examination of plaintiff it was ascertained that he was born in Austria; that he came to the United States in 1907 and afterwards went to Canada and afterwards returned to the United States; that he was not a citizen of the United States but took out his first papers in September, 1917, and that he was working for the Illinois Steel Company at Gary, Indiana, when he was hurt. At the close of the case in chief for plaintiff, defendant moved to withdraw a juror and to continue the cause until the termination of the war between the United States and Austria. This motion was denied. One of the points in defendant’s written motion for a new trial was that plaintiff, being an alien enemy, he is not entitled to prosecute this suit during the continuance of the war. One of the assignments of error here is to the same general effect. It is a general rule of international law that an alien enemy is not permitted to sue. 7 Moore’s International Law Digest, 253, where authorities are collected. In Masterson v. Howard, 18 Wall. (U. S.) 99, on p. 105, the court said that the existence of war closes the courts of each belligerent to the citizens of the other. Such is the general sense of Matthews v. McStea, 91 U. S. 7. In Seymour v. Bailey, 66 Ill. 288, on p. 297, the court, quoting from Bacon’s Abridgment, said: “By the policy of the law, alien enemies shall not be admitted to actions to recover effects which may be carried out of the kingdom to weaken ourselves and enrich the enemy.” Later in said opinion our Supreme Court said that this rule denies to the citizens of each belligerent the right to bring suits in the courts of the country with which their own is at war; that the character of alien enemy carries with it a disability to sue. In 40 Cyc. 328, it is stated: “The right of an alien enemy to sue a friendly citizen in the courts of the latter’s country is suspended during the war.” Many authorities are cited on that and succeeding pages. Story’s Equity Pleadings, secs. 51, 724. To this rule several modifications have gradually arisen. Sometimes a treaty between two countries expressly provides that if war arises between said countries, the citizens of one, resident in the other, shall be permitted to exercise certain rights in the country where they reside, and suck provisions, designed expressly fór a state of war, are usually enforced by the courts of the country where the alien enemy resides. In volume 1 of a work issued by the United States Government entitled “Treaties and Conventions between the United States and Other Powers,” beginning on page 29, are set out the treaties between the United States and Austria-Hungary down to 1909, and they do not contain any such provisions. Sometimes a country at war finds it expedient for its own interests to license a citizen of an alien enemy to carry on trading with such country or its citizens; and where a government grants such a license, its courts will protect that alien enemy while conforming to the license. The third and more common modification is that while a citizen of one country is permitted to reside in the country with which its own country is at war and to there labor or carry on business or own property, such citizen of an enemy country will be protected so long as he does not violate the laws of the country where he resides, and especially so if his residence there is permitted by the laws of that country. In Clarke v. Morey, 10 Johns. (N. Y.) 69, it is said that it has become the practice of nations “that the subjects of the enemy (without confining the rule to merchants), so long as they are permitted to remain in the country, are to be protected in their persons and property, and to be allowed to sue as well as to be sued.” The attitude of a government towards the resident citizens of an alien enemy is frequently declared by statute or by proclamation by the proper authority. Courts take judicial notice of such proclamations. Reynolds’ Stephen’s Digest of the Law of Evidence, arts. 58 and 33. By a resolution passed by Congress on December 7, 1917, war was declared to exist between the United States and Austria-Hungary. On December 11, 1917, the President, pursuant to statutes of the United States, issued a proclamation in which he enjoined all citizens of Austria-Hungary resident within the United States to preserve the peace and to refrain from crime and from actual hostility and from giving aid or comfort to the enemy and to obey regulations promulgated by the President; and it continued as follows: “and so long as they shall conduct themselves in accordance with law, they shall be undisturbed in the peaceful pursuit of their lives and occupations and be accorded the consideration due to all peaceful and law-abiding persons, except so far as restrictions may be necessary for their own protection and for the safety of the United States; and towards such of said persons as conduct themselves in accordance with law, all citizens of the United States are enjoined to preserve the peace and to treat them with all such friendliness as may be compatible with loyalty and allegiance to the United States.”

In State ex rel. Constanti v. Darwin (Wash.), 173 Pac. 29, it was said: “If such persons shall be undisturbed in the peaceful pursuit of their lives and occupations and be accorded the consideration due all peaceful and law-abiding persons, we think it follows that they are authorized to maintain actions to secure to themselves their lawful occupations.” Authorities are there cited to sustain that position. That opinion derives emphasis from the fact that one member of the court dissented on that point. In Krachanake v. Acme Mfg. Co., 175 N. C. 435, 95 S. E. 851, the same doctrine was held, based upon the authorities and said proclamation and the Act of Congress known as ‘ ‘ Trading with the Enemy Act. ’ ’ The Supreme Court of Michigan, in Mittelstadt v. Kelly, 168 N. W. 501, held that an alien enemy, residing here and conducting himself properly under the law of our land, has the right to the protection of the law and may assert that right in our courts. See also, Fritz Schulz, Jr. Co. v. Raimes & Co., 99 N. Y. Misc. 626, 164 N. Y. Supp. 454, and Arndt-Ober v. Metropolitan Opera Co., 102 N. Y. Misc. 320, 169 N. Y. Supp. 304, and 182 N. Y. App. Div. 513, 169 N. Y. Supp. 944. In Posselt v. D ’Espard, 87 N. J. Eq. 571, 100 Atl. 893, it is said: “To shut the door of the court in the face of an alien enemy resident here would be a distinct violation of not only the spirit but the letter of this proclamation. ’ ’ Other considerations support the ruling of the court. In Kershaw v. Kelsey, 100 Mass. 561, on p. 564 (a case containing a reference to many authorities on this general subject), it was said that the reason for allowing this defense is “that the fruits of the action may not be remitted to a hostile country and so furnish resources to the enemy. ’ ’ The same suggestion is found in other cases above cited by us. We take judicial notice that the United States Government has an alien enemy property custodian, who has taken possession of much alien enemy property in this country during this war, and it would be his duty to prevent the proceeds of this judgment being transferred to Austria during this war. Again, when this judgment was entered, this railroad had been taken over by the government of the United States, and if paid during this war the judgment would be paid by the United States, and it therefore has ample power to prevent the avails of this judgment reaching Austria during the war. Other suggestions occur to us. Some of the authorities hold that this defense must be interposed by plea; some say by plea in abatement, others by plea in bar. An authority above cited by us will lead to a form for such a plea of alien enemy. No such plea was filed here. If such a plea is not required by our practice, still there is nothing to show but that officers and attorneys for the defendant knew before the trial began that plaintiff was an alien enemy. In such case they should have presented the motion in time, so that, if granted, plaintiff would not be put to the expense of bringing his witnesses from G-ary to Joliet. It would have been a serious injury to plaintiff to permit such a motion to be granted in the middle of the trial. Ten witnesses for plaintiff had been examined before this motion was made. When made at that time, without any showing of an excuse for the delay, the court should have at least permitted the case to proceed to judgment, and could have then entered an order staying the collection of the judgment until the expiration of the war, if the motion had been otherwise well founded. We approve the ruling of the court upon the motion. It will be observed that defendant did not raise the question of the right of plaintiff to proceed after the United States Government had taken over this railroad. That would have presented a different question which we do not decide.

Defendant offered in evidence the depositions of three witnesses taken by it in the City of Gary, Indiana. Plaintiff thereupon produced two of said witnesses and objected to the depositions, and insisted that, the witnesses being present, defendant had no right to read the depositions in evidence. Plaintiff’s counsel claimed that defendant had not asked the first of said witnesses if he would attend this trial in Illinois. After this colloquy, the first deposition was permitted to be read in evidence, and immediately after the close of that deposition plaintiff called the witness to the stand and insisted on his right to cross-examine, and the court overruled objections and permitted him to proceed, though the court did not rule that he could cross-examine. Counsel for plaintiff then did cross-examine and examine the witness in chief. A similar course was pursued as to the second deposition. The cases of Frink v. Potter, 17 Ill. 406; Bradley v. Geiselman, 17 Ill. 571; and Board of Trustees v. Adler, 49 Ill. 311, show that plaintiff had no right to pursue the course which he did. Plaintiff saw fit to bring this suit in another State than that in which the accident happened and where the witnesses mainly resided. The law gave defendant a right to take these depositions. It could not safely rely upon any promise by a witness to attend in another State. It could not enforce the attendance of witnesses in another State. Plaintiff’s counsel appeared when the depositions were taken and cross-examined them. The course pursued was calculated to prejudice the jury against the depositions, and to lead the jury to believe that the depositions were subject to suspicion. Under the authorities cited plaintiff had no right to a further cross-examination of said witnesses. His only right was to call them in rebuttal after defendant’s proofs were closed. Defendant’s rights were violated over its repeated objections, whether the further oral examination in open court was considered as a cross-examination or as the production by plaintiff of proof in rebuttal. These witnesses testified to matters vital to the defense. Gregory, a witness for plaintiff, having testified concerning the heel of a shoe which he said was found upon the rail at or near the street crossing, was asked on cross-examination if he did not state to a certain person at a certain time that he found it near where plaintiff was lying right after the accident, which was shown to' be a considerable distance west of Taft street (and probably 300 feet or more), to which an objection was sustained. We are of opinion that defendant should have been permitted to make that inquiry of the witness on cross-examination.

Plaintiff’s fourth instruction was directed to the care required of plaintiff “before and at the time of receiving the injury.” It is argued this was incorrect because it might have been understood by the jury to mean immediately before receiving the injury and after plaintiff had put himself in a place of danger, whereas it is insisted the rule is that he must have exercised due care before he put himself in a place of danger, as well as afterwards. This would present a serious question but for the fact that defendant embodied the same language, or substantially the same, in two instructions which the court gave at its request. This bars defendant from questioning its correctness. The court gave instruction No. 15, requested by defendant, which specified matters which the jury should consider in determining on which side was the preponderance of the evidence, and included in such items the interest or absence of interest of the witnesses in the result of the case; and it refused instruction No. 42, requested by the defendant, which authorized the jury in considering the credence to be given to the testimony of the plaintiff to consider that he is the plaintiff and interested in the result of the suit. It is urged that defendant was entitled to have said last instruction given. It is insisted by plaintiff that instruction No. 42 was improper in any event, and, if proper, was sufficiently covered by instruction No. 15, given. Defendant cites cases where No. 42 has been approved, and its refusal held reversible error and plaintiff cites cases where it has been held error to give it. In Hartshorn v. Hartshorn, 179 Ill. App. 421, we collected the chief cases pro and con on that subject up to that date, 1913, and held that where both parties were individuals and able to testify, it was error to give the instruction aimed at the evidence of only one of the two parties, but that where one of the parties was a corporation and unable to testify, it was proper to give the instruction, directed to the testimony of the only party who could testify. Later decisions have cast doubt upon the propriety of giving such an instruction as No. 42, even when a corporation is the sole party on one side. In this state of the decisions, we conclude to abide by our opinion in Nau v. Standard Oil Co., 154 Ill. App. 421, wherein we held that where a party requested instructions, such as Nos. 15 and 42 in this case, the giving of the general instruction, such as No. 15, was a sufficient reference to the interest of the party, and that the refusal of such an instruction as No. 42 was not error in such a case. The instruction given for plaintiff on the measure of damages is questioned as not requiring the jury to base their verdict on the evidence, but we think it sufficiently directs the jury to the evidence as the basis for their verdict.

Defendant submitted to the jury the following special interrogatory: “Was the plaintiff on the Taft street crossing when struck by the defendant’s train”? This question was answered in the affirmative. It is contended by defendant that this answer is not supported by the preponderance of the evidence. We are of the opinion that the preponderance of the more credible testimony warrants the conclusion that plaintiff was struck a considerable distance west of the Taft street crossing on the private right of way of the defendant, and if the jury had so found, plaintiff could not have had judgment, both because the declaration in each count charged that plaintiff was struck upon the Taft street crossing, and because, if struck'at a point a considerable distance west of that crossing, he was a trespasser according to the evidence now before us, and the company owed him no duty except to avoid wilfully injuring him after his presence there was discovered, and the evidence did not show any such wilful conduct. But defendant filed a written motion for a new trial and, though it therein asserted that the verdict was contrary to the evidence, it did not make any point that the special verdict was contrary to the evidence. It is held in Avery v. Moore, 133 Ill. 74; City of Aurora v. Rockabrand, 149 Ill. 399; Pennsylvania Coal Co. v. Kelly, 156 Ill. 9; Empire Laundry Machinery Co. v. Brady, 164 Ill. 58, and Voigt v. Anglo-American Provision Co., 202 Ill. 462, that the objection that the verdict is against the weight of the evidence applies only to the general verdict and not to the answers to special interrogatories, and that the special findings, when not mentioned as a ground for a new trial, cannot be assigned as error in the Appellate Court and the judgment cannot on that ground be reversed. The authorities above cited have been followed in numerous cases in the Appellate Court for the First District, and also in the Appellate Court for the Fourth District. Defendant therefore cannot have a reversal on that ground.

Defendant contends that, assuming that the accident took place on the Taft street crossing, the preponderance of the proof shows that the plaintiff was not in the exercise of due care for his own safety, but was guilty of contributory negligence leading to his injury, and that defendant was not guilty of any negligence charged in the declaration and occasioning plaintiff’s injury. Plaintiff had been in a saloon north of the railroad and on or near the east side of Taft street for 20 or 25 minutes in the evening. According to his own account he came out, went south across the railroad on the east side of Taft street, and then east on a street running parallel with the railroad to a shoe shop and, not finding the proprietor in, he retraced his steps, went west to Taft street and north on the east side of Taft street until he reached the railroad. At that place the railroad had four tracks. The south track, nearest to plaintiff, was a switch track. Then came the eastbound main track, then the westbound main track, and the north track was a switch track. When plaintiff reached the railroad crossing going north, according to his version of what happened, he waited for a freight train to pass on the eastbound track and then started ahead. On the north switch track a local passenger train was slowly proceeding west from the east end to the west end of that switch track, waiting for a fast passenger train to pass it on the westbound track, going west. It was proceeding at slow speed, and we are of opinion that the more credible evidence should have led the jury to find that its bell was ringing and that it had a sufficient headlight, and that the crossing bell was also ringing. Apparently, the jury should have found that plaintiff, when the freight train had passed east, carelessly went across the other two tracks without looking east. Others saw the headlight coming. It would serve no useful purpose to discuss the evidence of the several witnesses. But we conclude that a new trial should be awarded, for the reasons herein stated.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.