text:
    Victoria Patelski, Plaintiff in Error, v. John W. Snyder, Defendant in Error.
    Gen. No. 17,323.
    1. Husband and wife—actions and defenses. The “Act to revise the law in relation to husband and wife,” approved in 1874, providing that a married woman may in all cases sue and be sued without joining her husband, did not create for the wife a right of action for personal injuries to the husband which did not before exist, nor did it undertake to give her any more control of her husband’s property, earnings or other choses in action than she had before.
    2. Husband and wife—right of action of wife for injuries to husband. Where a married man receives personal injuries because of the negligence of a person who is liable to him for the injuries, his wife has no right of action against such person for her loss or damage caused by such injuries.
    Error to the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    James E. Ward, for plaintiff in error.
    Mann & Miller and Hans L. Howard, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

A question of law only is presented by this writ of error. The plaintiff below and plaintiff in error here, Victoria Patelski, on April 29,1910, began suit in case against John W. Snyder, defendant below and defendant in error here, designating her damages at $15,000. About a month later she filed her declaration, from which it appears that her claim results from the following alleged facts:

That she was on July 27,1908, the wife of one Stanislaus Patelski, and living with her husband in Chicago, and that (to quote now from the declaration):

“For many months prior to said July 27, 1908, the said Stanislaus Patelski was by occupation a stone and brick mason and had pursued his vocation for a long time prior thereto, and earned and received for his services as a stone and brick mason in working for divers persons in and about the City of Chicago on and prior thereto the sum of at least forty dollars ($40.00) per week, which monies and earnings the said Stanislaus Patelski from time to time brought home to and expended the same together with the plaintiff in support of and in maintaining the plaintiff, himself and his family comfortably and suitably to their station in life. And plaintiff avers that on the 27th day of July, 1908, aforesaid and prior thereto and ever since her said marriage to the said Stanislaus Patelski she was entitled to in law and did receive the support and maintenance aforesaid from her husband suitable to their station in life and had always demeaned herself faithfully toward her husband and was entitled to a continuation of said support and maintenance.”

The declaration then sets up in detail the employment of the said Stanislaus Patelski by the defendant Snyder and his serious and permanent injury through the negligence of said Snyder, whereby the said Stanislaus Patelski was (quoting again)—

“permanently lamed and impaired in health and body and mind and unable to work at his occupation or perform other services and earn compensation and means with which and by which to support and maintain the plaintiff as his wife aforesaid from thence hitherto, and was compelled to remain and lie in bed and be subjected to divers painful surgical operations and treatments for said injuries and was necessarily kept and detained away from his home and the plaintiff, whereby the plaintiff was deprived of the comfort, society and assistance of her said husband and of the means of support and maintenance which he had been accustomed to provide and give to her, whereby the plaintiff became and was, and was necessarily caused to become ill, sick and distressed and increased burdens of earning for her family and children were necessarily imposed upon her as a result thereof, and plaintiff avers also that by reason of the premises she was required to expend and lay out divers sums of money caring for and assisting her said husband during his illness and in going from her home to the hospital, to-wit, St. Anne’s Hospital at a great distance in the City of Chicago aforesaid from the home of the plaintiff, * * * whereby the plaintiff says she has sustained damage and is damaged in the sum of Fifteen Thousand Dollars ($15,000), etc.”

To this declaration the defendant Snyder filed a general demurrer, which after argument the Circuit Court sustained, entering in consequence a judgment of nil capiat and for costs against the plaintiff. To reverse this judgment this writ of error has been prosecuted.

The only question presented is whether for a personal injury to a married man, through the negligence of another, the person liable for the injury to the man himself is also liable for it to the man’s wife.

The argument of the plaintiff is ráther founded on general grounds urged as comformabl’e to logic and right reason than on authority, although one or two citations are made which we shall notice.

Counsel says in his argument:

“Why not declare the law to be as follows: For injuries received by a married man two actions may lie; one by the husband for damages resulting to himself, and if by reason of such injuries the wife has received a separate loss or damage,—as if she has thereby been deprived of the protection, society, services and means of support of and from her husband, or has been put to expense or increased burdens in supporting, maintaining and caring for him, she may bring an action in her own name against the wrongdoer and recover the damages she has sustained?”

The answer to this question is that we have no right or power to declare the law to be other than it is, even though it should seem that a change would be for the better. If the law should be changed, it is the duty of the legislature and not of the courts to change it. But since much emphasis is placed by counsel’s argument on the natural justice of the plaintiff’s claim, it might be suggested that if the wife is to be given an action for personal injuries to the husband because of the probable pecuniary loss to her, it would be difficult to distinguish in reason and natural justice between her right and that of any other person dependent on or entitled to a portion of his earnings. If the wife can recover, why not each of the minor children dependent on him for support and education? . If the minor children, why not those family relations whose support, in case of their indigence, is placed on him by law? Or why not each of his creditors, who suffers a pecuniary loss in his inability to pay? Or even the societies or charitable associations to which he is' no longer able to contribute? Where would the right of action for a single injury end?

Since, however, by his injury the injured man is not relieved by law from any of his legal obligations, among which is primarily the support of his family, why is it not the most feasible method of securing the result desired, to give to him the right of action and hold him, as before, to a discharge of his legal obligations? That, we think, is exactly what the law in all jurisdictions has done, almost universally supplementing it in order that there may not be a failure of justice, by the Campbell Acts, which provide in favor of widows and next of kin for death losses.

The plaintiff, however, insists that because by the “Act to revise the law in relation to husband and wife,” approved March 30, 1874, it is provided:

“That a married woman may in all cases sue and be sued without joining her husband with her, to the same extent as if she were unmarried, and an attachment or judgment in such action may be enforced by or against her as if she were a single woman,” married women are placed on an equality of natural rights with married men, and that such equality demands and makes it the law for us to administer, that as a husband has a right of action to recover loss and damage to him by reason of a personal injury to her, the wife, by parity of reasoning, has a right of action to recover loss and damage to her by reason of a personal injury to him.

We do not see that this statute places married women on an entire equality of right in this respect with married men any more than it bestows on them an equal right of suffrage or makes them eligible for all offices in the state.

None of these things seem to us to have been the purpose of the statute. That purpose was apparently simply to extend, to include all pecuniary or property claims belonging to her, the right which the Act of March 24, 1869, had first given to a married woman in regard to her own earnings; that is, the right to receive and sue for her own earnings without the intervention and free from the interference of her husband.

But it did not profess to vest in her or create for her any pecuniary claims which she did hot before have.

The law of 1869 indeed not only gave her the right to sue in her own name for her earnings, but for the first time gave her the right to those earnings, which previously had belonged to her husband. But the law of 1874, while extending the legal independence of a married woman as to all legal proceedings and in many particulars increasing her responsibilities and diminishing those of her husband, did not undertake, as we read it, to give her any more control of her husband’s property, earnings or other choses in action than she had before. Nor did it create for her a right of action for personal injuries to him which did not before exist.

The question then is, did such a right exist before the passage of the act. It does not, in this view, advance the argument to point to the fact that the husband had before and has now the right of action for an injury to his wife, whereby he was deprived of her services, for he had and has a legal right to her services before and since the passage of the act, as indeed seems to be recognized by the statute of 1869, which expressly declare that the act shall not be construed to give to the wife any right to compensation for any labor performed for her husband.

But we cannot find in the law as it existed before the Acts of 1869 or 1874 any such legal right or interest of the wife in the labors or services of her husband.

The theory of the law was different. Imposing on the husband the duty of supporting his wife and family, it gave to him solely the right to dispose of Ms labor in any way he saw fit, and gave to Mm solely the right to the wages he earned, which were the means with which these obligations were to be met. And to Mm belonged, the compensation for an injury which deprived him of those wages. The compensation thus received was supposed to furnish him the means to meet his family obligations, as Ms wages previously had done.

Nor can we find any authority to sustain an action like the present one, unless those cases which have supported the right of the wife to sue for the alienation of her husband’s affections, and the case cited by the plaintiff in error (Clark v. Hill, 69 Mo. App. 541), in wMch the St. Louis Court of Appeals sustained the right of a wife to damages given to her by the lower court, for the defendants driving her husband to insamty by threats, can be so considered. We think this last case may be disregarded. The real question involved seems hardly to have been considered, the court is of inferior jurisdiction, and the opinion is very summary, citing in its support only a case of an action for the alienation of a husband’s affections.

And although there is much variation in the reasoning of the opinions in the many reported cases from various jurisdictions which have supported actions for such alienation, we think that the soundest ground on which they have ever been put has been that the common law gave to a married woman the right to the action for the loss of the “consortium” of her husband, but that the enabling acts which allowed her to sue without joining her husband have given to her the first practicable method of enforcing that right. This is the view taken by the Court of Appeals of New York in the leading and well considered case of Bennett v. Bennett, 116 N. Y. 584, and by the Appellate Court of this State for the Fourth District in Bassett v. Bassett, 20 Ill. App. 543. But in any case, if courts have supported this kind of action on the theory that advancing justice in regard to the marriage relation demanded that the wife’s rights in this regard should be correlative or identical with those of the husband, it can hardly be expected that this court, which is not one of last resort or of ultimate appeal, should adopt and extend the effect of this reasoning to support an alleged right of the wife to recover for physical injuries to a husband caused by the negligence of another. The new departure, if it is to come, should not come from an intermediate court. There is, in our view, no precedent for it, which in itself is evidence of the consentient opinion of the courts and the profession against the right claimed, since occasions for its exercise, if it exists, arise continually in every jurisdiction.

“The argument of negative usage as applicable to this case, if not decisive, is extremely strong.” Duke of Newcastle v. Clark, 8 Taunton 602, p. 621.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Browh

license: Public Domain

text:
    Max Rice, Defendant in Error, v. Katie Krasne, Plaintiff in Error.
    Gen. No. 17,378.

      Contracts—performance. In an action for extra work and materials furnished, held, under the evidence, that a finding and judgment for plaintiff should not be disturbed.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Pry, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed April 21, 1913.
    Johh J. Poultoh, for plaintiff in error.
    Graham & Bowah, for defendant in error.
   Mr. Justice Browh

delivered the opinion of the court.

This writ of error was sued out to reverse a judgment for $110 secured in the Municipal Court by the defendant in error, Max Bice, against the plaintiff in error, Katie Krasne. Bice is a plumber and did some plumbing work for Mrs. Krasne described in certain plans and specifications. He was paid $750, which was the price contracted for. Bice maintained that for certain work and materials not included in the plans and specifications he was entitled to further payment. He sued for it. Mrs. Krasne, after filing an affidavit of defense that she never ordered any additional work or material as alleged, nor was any such work done or material furnished, testified on the trial of the case that Bice agreed to do said extra work and furnish said extra material without any additional charge, and was corroborated by various witnesses, who swore that they heard a conversation in which Bice made such an agreement. But Bice denies this, and circumstances and the testimony of one Lippert as to a conversation he heard between the parties tend to corroborate him.

The case turns on the credibility of witnesses as to a question of fact. We shall not disturb the finding and judgment of the court below. The judgment of the Municipal Court is affirmed.

I'Affirmed.


author: Mr. Justice Browst

text:
    W. J. Turnes, Trading as W. J. Turnes Company, Appellant, v. L. M. Johnson, Appellee.
    Gen. No. 17,403.
    1. Evidence—when proof of contract is improperly excluded. Where plaintiff sues as an individual doing business under a trade name, it is error to exclude proof of the contract alleged in the declaration because the style under which the plaintiff did business is not established, without indicating that the ruling relates merely to the order of proof.
    2. Corporations—contract made by individual doing business in corporate name. A contract made by an individual under a corporate name is not void though there has been no incorporation.
    3. Criminal law—doing business under a corporate name. Criminal Code, § 220, does not make it an offense to do business under a “corporate name” or a name which implies an incorporation when there has been no incorporation.
    4. Corporations—doing business without warrant under a corporate name. The Corporation Act, § 18, provides the only penalty for doing business without warrant under a corporate name, namely, that the person or persons doing so are “jointly and severally liable for all debts and liabilities made by them and contracted in the name of such corporation or pretended corporation.
    Appeal from the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed April 21, 1913.
    Rehearing denied May 5, 1913.
    James Hibben, for appellant.
    Hebel & Haft, for appellee.
   Mr. Justice Browst

delivered the opinion of the court.

December 14, 1908, praecipe was filed in the clerk’s office of the Municipal Court of Chicago, demanding a summons to the defendant in a plea of trespass on the case on promises in a cause of the first class entitled W. J. Turnes Company, plaintiff, v. L. M. Johnson, defendant.

A summons was issued in conformity with the prae cipe, returnable on the 21st day of December, 1908. December 16, 1908, a declaration was filed in said cause, by which “W. J. Tumes Company, a corporation,” purported to complain of L. M. Johnson, defendant, for that the defendant has not paid to the plaintiff certain sums of money, to the damage of the plaintiff in the amount of $2,500, wherefore it brought suit, etc.

The averments of the declaration, except the consolidated common money counts, were based on a certain contract in writing, which the plaintiff alleged the defendant had entered into with the plaintiff for constructing a three-story factory building in Chicago, which the plaintiff further averred it had fully carried out and on which it asserted a balance of the contract price of $1,200 damages to the amount of $500 and compensation for extra work to the amount of $357.03 were still due and unpaid.

The contract was set out in full in the declaration. It begins:

‘ ‘ This agreement, made at the City of Chicago, this twelfth day of March, 1907, between W. J. Turnes Company, 167 Dearborn St., * * * party of the first part (hereinafter called the Contractor) and M. Í. Johnson, * * * party of the second part, (here: inafter called the Owner);
Witnesseth: That the said party of the first part,” etc.

As recited in the declaration it closes and is signed as follows:

“In witness whereof, the said parties have hereunder set their hands and seals the day and year first above written.
First Party: W. J. Turnes Company, "
By W. J. Turnes (Seal)
Second Party: L. ML Johnson . (Seal)
Witness: Thomas H. Mullay (Seal)”

As offered in evidence, however, at the trial to be hereinafter described, the contract appears to be signed:

(First Party) W. J. Turnes Company
(w, ¡T. TURNES COMPANY)
( CORPORATE SEAL ) Wm. J. TURNES, Pl'CS. (SEAL)
( CHICAGO, ILL. )
(Second Party) L. M. Johnson (Seal)
(Witness) Thomas H. Mullay (Seal)”

An affidavit of merits was annexed to the declaration running as follows:

“W. J. Turnes Company vs. L. M. Johnson.
William J. Turnes, being first duly sworn, deposes and says that "he is the President of the plaintiff in the above entitled suit. That the demand of the plaintiff in the said suit is for work, labor and services rendered and materials furnished by plaintiff for defendant at the request of the defendant and for damages for wrongful withholding from said plaintiff a final certificate, to which it was duly entitled; and there is due to the plaintiff from the defendant, after allowing to Mm all just credits, deductions, demands and set offs, the sum of Two Thousand Fifty Seven Hundred and 03/100 ($2057.03) Dollars.
William J. Turnes.
Subscribed and sworn to before me this 15th day of December, A. D. 1908.
Geo. C. Guthrie,
Notary Public.”

L. M. Johnson, the defendant, entered Ms appearance by Ms attorney and afterward pleaded that he, the defendant, had sued the W. J. Turnés Company on the identical contract set up in the plaintiff’s declaration, and that said suit was pending in the Appellate Court of tMs District, and that a final judgment entered for said Johnson would be a complete bar to the plaintiff’s7 action in this case. He also pleaded nomas sump sit and filed an affidavit of defense to the whole of the plaintiff’s demand. To this plea the plaintiff demurred, still under the name of the W. J. Turnes Company, and the demurrer was sustained and the defendant ruled to plead. On the 4th of June, 1909, the defendant added to the plea of the general issue, already on file, a plea of “mil tiel corporation,” denying the existence of any such corporation as “W. J. Turnes Company,” and verified said plea by affidavit.

On the 5th of June, 1909, the plaintiff filed a replication to this plea of mil tiel corporation, averring that on March 12, 1907, the defendant entered into a written sealed contract with the plaintiff, on which the suit was based, as a corporation, and afterward on May 19, 1908, sued the plaintiff as a corporation upon said contract, in which suit a judgment was rendered in favor of the plaintiff herein (defendant in said suit) by the name of the W. J. Turnes Company; by reason of all which the plaintiff claimed that the defendant was estopped from pleading in this cause that there was no such corporation as the W. J. Turnes Company.

It does not appear that any disposition was ever made of this replication or that any rejoinder was ever made to it.

The transcript of the record before. us, however, contains a recital that on June 23, 1909, “a certain Amendment of the Declaration” was filed in the office of the Clerk of the Municipal Court, “in words and figures following,” and then shows, not “an amendment of the declaration” nor an order allowing an amendment, but a document signed by the plaintiff’s attorney, by which he “moves the court to amend the declaration filed herein by substituting the words (W. J. Turnes, doing business as W. J. Turnes Company,’ in lieu of the words ‘V. J. Turnes Company, a corporation,’ wherever the same occur in the declaration filed herein.”

When the case came on for trial in January, 1911, however, this condition of the record seems to have been taken as equivalent to an amendment of the pleadings and all other necessary papers, and as showing that the action was being prosecuted by W. J. Turnes as an individual and not by the W. J. Turnes Company. This is shown by the following portions of the colloquy set forth in the bill of exceptions:

The signatures to the contract—

W. J. Tubnes Company,

Wm. J. Tubnes, Pres. (Seal)

and

L. M. Johnson (Seal)

having been proven to be made by Turnes and Johnson respectively, the contract was offered in evidence by Mr. Hibben, the counsel for the plaintiff. Then occurred this conversation:

“Mb. Haft: I object to it as incompetent, irrelevant and immaterial and for the reason that no foundation is shown for its introduction in evidence or pleading, and on the further ground that this action is now being prosecuted by W. J. Turnes, an individual, and that this contract offered does not purport to be his contract, but that of W. J. Turnes Company, a corporation.
The Coubt : You want the record to show you made the offer?
Mr. Hibben : Yes, I want a ruling on it first.
The Coubt: The objection is sustained.
(Exception by plaintiff’s counsel.)
Mr. Hibben: Let the record show that because of the sustaining of the objection to the admissibility of the contract testified to by the witness on the stand, the plaintiff rests. ■
Mr. Haft: So there won’t be any question on the pleading you made a motion in writing and was granted leave to amend the declaration.
Mr. Hibben: Yes.
Mr. Haft: That has not been done in form. You got leave to amend but have never formally amended.
# * * * :V: $ * * *
Mr. Hibben: I think the record of this Court will show leave to amend.
Mr. Haet: Yes, but you haven’t done it. We have been arguing it as if you had.
Mr. Hibbeh : Let this motion stand as a motion to amend the declaration.
Mr. Haft: Let the record show this: It is stipulated and agreed that the declaration filed herein may be treated as if the amendment heretofore moved for and allowed by the Court had in fact been made, and that the declaration be treated as if the plaintiff appeared to be W. J. Turnes doing business as W. J. Turnes Company.
Mr. Hibbeh: Yes, that is all right.”

The defendant then offered in evidence a “Contract- or’s Bond” to secure Johnson against loss by breach of the contract aforesaid, which purported to be signed by the W. J. Turnes Company, as principal, and the Metropolitan Surety Company as surety. He interrogated Turnes as follows concerning it:

“I ask you if that name appearing there above the words, ‘Name of corporation, W. J. Turnes Company, Wm. J. Turnes, Pres.,’ was placed thereon by you?”

To which Turnes replied in the affirmative. Then defendant’s counsel referring to what purported to be a corporate seal of the W. J. Turnes Company, also on the bond, asked if it was put there by the witness, who replied: “Yes; under the assumption that it was a corporation.”

This is substantially all that occurred at the trial so far as the bill of exceptions shows.

The court instructed the jury to find for the defendant, and a verdict was rendered in accordance therewith. A motion for a new trial and one in arrest of judgment were overruled and a judgment of nil capiat and for costs entered against the plaintiff. The plaintiff appealed to this court and assigned as the principal error on which the other errors assigned really turn, the refusal to admit in evidence the contract sued on and set forth in the declaration.

We think this refusal, under the circumstances shown by the record and under the situation fairly inferable therefrom, was erroneous and might well result in a failure of justice.

Despite the anomalous state of the record, in the making of which very little regard for accuracy seems to have been had by anybody concerned, we have concluded that we must treat the case as though all necessary amendments had been made to constitute it, to use the language of the appellee’s counsel in making his objection to the contract, one “prosecuted by W. J. Turnes as an individual.”

On this assumption the declaration must be considered to include among its allegations material and relevant to the controversy, one that William J. Turnes, the plaintiff, was doing business as W. J. Tumes Company, and another that the contract set forth in the declaration was made. It was competent and relevant to prove both the one and the other, and the order in which they were proved was in the first instance immaterial. Undoubtedly the court could control the order of proof, but it seems to us an abuse of discretion to refuse the evidence of the existence of the contract until the name under which William J. Tumes was doing business was proven, without indicating that the ruling was one relating to the order of proof merely, and that the contract might be admissible later if the style under which Turnes did business was first established. In that view, therefore, if the ruling was one based on the power of' the court to control the order of proof, we think the cause should be remanded for a new trial. If the connection between the contract and the plaintiff as an individual were not proven after the contract had been admitted, the peremptory instruction would have been justified. But the exclusion of the contract without the indication that we speak of, we do not think was justifiable.

But the tenor of the colloquy between counsel and between counsel and the court would seem to imply that the ruling was not on this ground, but on the ground that the contract under the pleadings as amended would at any time and with any other proof have been incompetent or irrelevant. This is not our opinion.

Counsel for appellee argue that the contract, if made by William J. Turnes in the name of W. J. Turnes Company, was “in violation of a statute” and therefore void, and one on winch no action could be maintained. We know of no statute of which it would be in violation.

By Section 220 of the Criminal Code as enacted in 1874 (said section incorporating the material pari of an Act of March 10, 1869) it is provided that “if any person puts forth any sign or advertisement and therein assumes, for the purpose of soliciting business, a corporate name not being incorporated,” he may be punished by a fine; but the offense thus constituted is not doing business under a “corporate name” or a name which implies an incorporation. It is only the putting forth a sign or advertisement under such a name for the purpose of soliciting business which is made a misdemeanor.

Section 18 of the Corporation Act provides the only penalty (which would exist indeed without it) for doing business without warrant under a corporate name, namely—that the person or persons doing so are “jointly and severally liable for all debts and liabilities made by them and contracted in the name of such corporation or pretended corporation.”

The judgment of the Municipal Court is reversed and the cause remanded to said court.

jReversed and remanded.


author: Mr. Justice Fitch

text:
    Chicago & Riverdale Lumber Company, Defendant in Error, v. James W. Garside and Maryland Casualty Company (Marshall E. Boynton, intervening claimant, Plaintiff in Error).
    Gen. No. 19,105.
    1. Appeals and errors—affidavit to contradict recitals over signature 'of trial judge. A court of review cannot consider an affidavit to the effect that the trial court did not sign the statement of facts on the date recited.
    2. Appeals and errors—record is conclusive. When the record is once made up, it is conclusive upon all parties until altered or set aside by a court of competent jurisdiction, and all questions relating to the time when it was in fact made, or in regard to the authority on which it was made, or in respect to the truthfulness of its recitals, must be settled by reference to the record alone.
    3. Appeals and errors—failure to enter a nunc pro tunc order. Where the failure to enter a nunc pro tunc order is the only defect in the record, it is a mere irregularity and does not make the bill of exceptions void.
    4. Municipal court—when nunc pro tunc order is void. An order by a municipal court judge more than thirty days after judgment is entered, permitting a certificate of evidence to be filed nunc pro tunc as of an earlier date when he signed the certificate, is void, since the court has lost jurisdiction.
    5. Appeals and errors—stipulation to change recital of trial judge on certificate of evidence. Where a certificate of evidence bears the signature of the trial court under a certain- date, a motion in the Appellate Court to withdraw the record for the purpose of having the date “corrected” will be denied, nor can it be corrected by stipulation.
    6. Appeals' and errors—where certificate of evidence is signed as of earlier date. Where a certificate of evidence is signed by the trial judge nunc pro tunc as of an earlier date, it is presumed by the appellate • court that the delay was the fault of the judge and not of counsel.
    7. Appeals and errors—when certificate of evidence is not filed in time. 'Where a certificate of evidence from the municipal court is signed by the trial judge within an extension of thirty days, but is not filed until after the time is up, a motion to strike it from the record in the appellate court .is allowed.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 24, 1913.

      Lee & Lee, for plaintiff in error.
    Gustave E. Beerlt and Archibald Cattell, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

This writ of error was sued out to reverse a judgment for $890, entered in the Municipal Court against Maryland Casualty Company as garnishee, in favor of James W. Garside, for the use of the Chicago & River-dale Lumber Company. A motion has been interposed to strike the stenographic report or statement of facts from the record upon the ground that it was not filed within apt time. The suit was a fourth-class case in attachment. It appears from the certified transcript of the record that the judgment was entered on November 15, 1912. On December 11, 1912, an order was entered extending the time within which to file a statement of facts thirty days from that date. There appears in the record a statement of facts or stenographic report which is marked “Presented this 8th day of January, 1913. Charles N. Goodnow, Judge.” At the end of the certificate to the statement of facts appears the following: “Dated this 8th day óf January, 1913. Charles N. Goodnow, Judge of the Municipal Court of Chicago,” and immediately beneath the judge’s signature is the file mark of the clerk showing that it was filed March 28, 1913.

If the record is to be taken as truly reciting the facts, it appears from the foregoing quotations that the statement of facts was presented to the trial judge on January 8, 1913, and was signed by him on the same day. This presentation and signing were within the time limited by the ord,er. of December 11, 1912, which time, by that order, did not expire until January 10, 1913, but that through no fault of the judge, it was not filed until over two months later, viz: March 28, 1913. An affidavit has been filed in this court by appellant’s counsel to the effect that the court did not in fact sign the statement of facts until March 25, 1913, and that the delay was the fault of counsel for defendant in error, who desired time to examine the statement of facts before it should be signed, and that when it was finally agreed upon, the trial judge dated it back, instead of inserting the true date upon which he actually signed it. Such an affidavit cannot, however, be considered by this court. If the certificate of the trial judge could be thus contradicted by affidavits in this respect, it could be so contradicted in any other particular, in which case the requirement of the law that the trial judge shall, “within thirty days after the entry of any final order or judgment or within such time as may, upon application therefor within said thirty days be allowed by the court, sigp and place on file * * * either a correct statement * * * of the facts * * * and of all questions of law involved * * * 0r * * * a correct stenographic report of the proceedings of,the trial,” would have little, if any, practical effect. In West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288, it was said: “It is a well settled rule of law that a record imports absolute verity and cannot be impeached by parol testimony. * * * When the record is once made up it is conclusive upon all parties until altered or set aside by a court of competent jurisdiction, and all questions' relating to the time when it was in fact made, or in regard to the authority on which it was made, or in respect to the truthfulness of its recitals, must be settled by reference to the record alone.”

In Hall v. Royal Neighbors of America, 231 Ill. 185, the transcript of the record showed that an appeal had been taken from a judgment entered in the County Court of Ford county, and that such appeal had been granted upon condition that the appellant should file its bill of exceptions on or before thirty-five days; that the bill of exceptions was in fact signed and sealed by the judge of the court seven days before the expiration of the time allowed, so that the failure to file it was not due to any neglect or delay of the judge in signing and sealing the same. It was there contended that in legal contemplation a bill of exceptions is in the possession of the clerk and filed as soon as it is signed and se'aled: To this contention the court said (p. 190):—“That is saying the law contemplates that a bill of exceptions is filed when it is not filed, and we cannot give our assent to a proposition so absurd.” That case recognized the principle that if a bill of exceptions is presented to the trial judge at such time that it can be filed within the time allowed by the order of the court, the party presenting it will not be prejudiced by any delay or neglect of the court, and if it is signed and sealed by the judge after the time limited has expired, and the date of presentation appears on the bill, an order may be entered, at the time of such signing, to file it nunc pro tunc as of the date it was presented to the judge for his signature. But the court declined to apply that principle in that case, for the reason, as stated by the court (p. 192):— “This case, does not come within that rule, but the failure to file the bill of exceptions was chargeable solely to the attorney who had possession of it.” The rule being as above stated, that affidavits cannot be considered to contradict the recitals made over the signature of the trial judge, the case above cited seems to us to be clearly decisive of the question presented in this case.

Counsel for plaintiff in error has filed a motion for leave to withdraw the record from this court “for the purpose of having the same corrected,” by showing what is claimed to be the real fact, as shown by the affidavit above mentioned. In reply to this motion, appellant’s counsel have filed certain counter-suggestions, in which they say they are willing to waive the actual withdrawal of the record for the purpose named, and are willing to agree that the facts were as stated in the aEdavit, Notwithstanding the recitals of the certificate of the trial judge. Appellant’s counsel insist, however, that such a correction, if made, would not cure the defect, for the reason that no order was entered permitting the certificate to be filed mmc pro time as of January 8, 1913. If it were to be conceded that the mere failure to enter a nunc pro tunc order is the only defect in the record as it stands, such a defect would be a mere irregularity, which does not of itself render a bill of exceptions void. Hill Co. v. U. S. Fidelity & Guaranty Co., 250 Ill. 242. But, as pointed out in Hall v. Boyal Neighbors of America, supra, that is a different case from the one under consideration. Here the defect is not the mere failure of the trial court to enter an order nunc pro tunc permitting the record to be filed on January 8, 1913, instead of March 28,1913, for the certificate of the judge shows that it was in fact signed on January 8th; and therefore, if the trial judge had entered an order on March 28, 1913, permitting the certificate to be filed mmc pro tunc as of January 8th, such an order would be void and of no effect because entered at a time wheh the court had lost all jurisdiction and control of the matter. Nor can we consider the consent of appellant’s counsel that the record may be “corrected,” for the reason, as stated by the court in Wurlitzer Co. v. Dickinson, 247 Ill. 27, 30: “ The provisions of the statute on this point cannot be waived by.stipulation.”

It is urged that the Supreme Court has defined the proper practice to be followed in cases like the present one by the following language in Hill Co. v. U. S. Fidelity & Guaranty Co., supra-.—“As a matter of proper practice the judge should have dated it, after signing, as of the date when it was presented, and an order should have been procured filing it as of that date.” Conceding that, such is the proper practice, that practice was not followed in this case; for, if it be assumed that the certificate was presented to the judge for his signature on January 8, 1913, but was not in fact signed "by him until March 25, 1913, then, under the rule above quoted, the proper conclusion of the certificate should have been: “Signed this 25th day of March,' 1913, as of January 8, 1913.” With such a recital, accompanied by the prior recital showing the actual date of presentation to the judge, the presumption would prevail that the delay was the fault of the judge and not of counsel. When, however, instead of making such a recital, the trial judge states over his own signature that he signed it on a particular day, we are hot authorized to indulge in any presumptions, nor consider any affidavits or stipulations, to the contrary. The motion to strike the statement of facts from the record must, therefore, be allowed, and such will be the order. The counter-motion to withdraw the record “for the purpose of having it corrected” will, for the reasons above stated, be denied.

Upon an examination of the assignment of errors, we have been unable to find among those assigned any error which can be considered in the absence of a certificate of evidence or stenographic report. This being true, there remains nothing for this court to consider, and therefore the- judgment of the Municipal Court must be affirmed.

Statement of facts stricken and judgment affirmed.


author: Mr. Justice McSurely

text:
    Albert Grabarski et al., Appellees, v. Leonard J. Stankowicz et al., on appeal of The Prudential Insurance Company of America and Henry Chodakiewicz, Appellants.
    Gen. No. 19,424.
    1. Chancery—when verification of bill insufficient. A verification of a bill stating that complainant “has read the bill of complaint subscribed to by him; that he knows the contents thereof, and that as to all matters and .things therein contained, he states them to be true, except as to such matters as are stated on information and belief and that as to such matters he verily believes them to be true,’’ is insufficient.
    2. Injunctions—when no grounds alleged for issuing injunction without notice. There are no grounds for issuing an injunction without notice where the bill and affidavits allege on information and belief that complainant will be irreparably damaged unless an injunction is issued without notice, but no facts are set up which would warrant such a conclusion.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed April 24, 1913.
    Hoyne, O’Connor & Irwin, for appellants; Carl J. Appell, of counsel.
    No appearance for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from an interlocutory injunctional order entered without notice, restraining inter alia the appellant Henry Chodakiewicz from paying out or transferring any money or property, and restraining the other defendants from paying or turning anything over to him.

The bill filed was a bill for contribution, alleging, in substance, that the complainants and defendants had entered into a contract of guaranty, guaranteeing the accounts of The Bell, a corporation, which had become insolvent and adjudged bankrupt, and that complainants had compromised and paid at 75 cents on the dollar certain claims against The Bell, and by their bill they asked that the defendants be required to contribute their pro rata share of the same. The bill further stated on information and belief that the complainants feared that defendants might dispose of their property and assets unless restrained by injunction without notice, and that complainants feared they would suffer irreparable injury unless such injunction were issued without notice.

Three points are presented by appellants in support of their prayer in this court that the injunetional order be reversed and the injunction dissolved. We express no opinion as to the first point presented, which is the claim that the bill shows no ground for equitable relief, but shall leave the determination of this point to the trial chancellor.

The second point raised is that the bill is improperly verified. On reference to the affidavit to the bill we find that G-rabarsld, complainant, swears “that he has read the bill of complaint subscribed to by him; that he knows the contents thereof, and that as to all matters and things therein contained, he states them to be true, except as to such matters as are stated on information and belief and that as to such matters he verily believes them to be true.” This form of verification has been so repeatedly held to be insufficient that it is unnecessary for us to do more than cite some of the cases. Christian Hospital v. People, 223 Ill. 244; Siegmund v. Ascher, 37 Ill. App. 122; Stirlen v. Neustadt, 50 Ill. App. 378; Commerce Vault v. Hurd, 73 Ill. App. 107, and many other cases.

The bill and affidavit are also open to the criticism that the charges of fraud are made on information and belief only, and are also mere general averments of conclusions, without setting out any facts which would warrant such conclusions. Murphy v. Murphy, 189 Ill. 360; Toles v. Johnson, 72 Ill. App. 182.

It is also claimed that there were no grounds for issuing the injunction without notice. The statute provides that no injunction shall be granted without previous notice of the time and place of the application “unless it shall appear, from the bill or affidavit accompanying the same, that the rights of the complainant will be unduly prejudiced if the injunction is not issued immediately or without such notice.” Ill. Revised Statutes, chapter 69, sec. 3. In this case the bill and affidavits merely allege on information and belief that “your orators will be irreparably damaged” unless an injunction is issued without notice, but neither the bill nor the affidavits set up anyzfacts which would warrant such a conclusion.

“When a statute requires that a certain conclusion shall be made to ‘appear’ as a ground of proceeding by any tribunal, the facts from which that conclusion follows must be proved to that tribunal, and it should not accept the opinion of anybody else upon that matter.” Werner Co. v. First Nat. Bank of Miamisburg, 55 Ill. App. 321.

.“A mere statement of a conclusion in an affidavit is not sufficient to make it appear that the complainant will be unduly prejudiced if the injunction is not issued without notice. ’ ’ Brough v. Schanzenbach, 59 Ill. App. 407.

To the same effect are Goldberg v. Laughlin, 137 Ill. App. 283; Williams v. Harper, 127 Ill. App. 619, and many other cases.

For the reasons above indicated the injunctional order will be reversed.

Reversed.


author: Mr. Presiding Justice Duncan

text:
    H. D. Fulmer, Trading, as Fulmer & Company, Defendant in Error, v. J. H. Chaney and E. L. Archibald, Plaintiffs in Error.
    Gen. No. 17,272.
    1. • Contracts—instructions as to extra work. In an action for extra work and material furnished where the evidence is conflicting whether it was furnished as under the original contract or a special agreement hy which extra pay was to he given, defendant is entitled to an instruction that no recovery can he had if the work was performed as under the original contract to make it comply therewith.

      2. Contracts—instruction as to extra work. An Instruction is erroneous, poorly worded, and calculated to mislead where it designates defendants as plaintiffs in an action for extra work and material furnished and states that if the extra work was not done under any arrangement by which it was to be paid for, but was done correcting the defective work which was under a former contract, the finding should be for plaintiffs for the portion done under such circumstances.
    3. Appeals and errors—judgment cannot he affirmed on theory that jury guessed at meaning of improper instructions. A judgment cannot be affirmed on the theory that the jury, though improperly instructed, may have properly guessed at the court’s meaning and rendered the right verdict.
    4. Evidence—when cross-examination of plaintiff improperly excluded. In an action for extra work and material furnished in repairing floors which bulged up, it is error to exclude cross-examination of plaintiff as to the cause of the bulging and whether there were ingredients in his material which would damage the concrete under it, where he testified in chief that his original contract was properly and completely performed and that faulty concrete caused the injury.
    5. Verdict—when excessive. Where there is no proof of an item in the claim in an action for extra work, a verdict which includes such item is excessive.
    6. Municipal Court—when striking of statement in set-off discretionary, It is discretionary with the trial court to strike from the files a statement in set-off or recoupment because not sworn to under the court rules before the trial was begun.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed April 30, 1913.
    John A. Bloomingston, for plaintiffs in error.
    M. A. Bamborough, for defendant in error.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

H. D. Fulmer sued J. H. Chaney and E. L. Archibald, plaintiffs in error, in an action of the fourth class in the Municipal Court, and recovered a verdict and judgment in his favor for $483. The items relied on for recovery in the statement of claim by defendant in error are for extra work and material itemized as follows:

for relaying 600 sq. ft. of flooring on the balconies, $114.00; for patching floors, $143.00; for relaying toilet floor, $49.40; for 3,740 lbs. filler used @ 5c, $187.00.

The evidence disclosed that defendant in error had on November 3, .1909, entered into a written contract with plaintiffs in error, contractors, to furnish materials and lay his asbestos, plastic flooring one-half inch thick in the Home Building for Aged and Disabled Bailroad Employes, to be built at Highland Park, Illinois, according to plans and specifications furnished by the architect, at the price of $1,821.06, and with a written guaranty that the work and materials would be of the very best. Defendant in error contended in the lower court, and contends here, that he performed the original contract to lay the floors in said building in accordance with the terms of the contract and that he was paid in full therefor by plaintiffs in error; that the extra work and materials for which this suit was brought were furnished by him to plaintiffs in error in the relaying and patching of said floors under new and special contracts with him that they would pay him for the same, and that they have not paid for the same as agreed. Plaintiffs in error admit that they paid defendant in error in full the contract price of the original contract, but deny that the contract was performed as agreed, and insisted in the lower court, and insist in this court, that all of the relaying and patching floors and furnishing materials for the same was necessitated by faulty construction under the original contract, and that the same, except the filler for the kitchen,- were furnished by defendant in error to make good his original contract and guaranty and that they do not owe him anything therefor, except a small amount for the filler for about twenty square feet of the kitchen floor. Both parties introduced evidence supporting their respective claims, and the evidence was therefore in conflict.

Plaintiffs in error were entitled to have the jury instructed upon their theory of the case, in substance, that if the jury believed from the evidence that the defendant in error relaid and patched the floors in question, or any portion thereof, as work under his original contract, and to make his work comply with the terms of said original contract, and not under a special contract by which he was to be paid extra for the same, that then as to such portion of the work so performed the defendant in error would not be entitled to recover in this suit. Only three instructions were given by the court, all being oral instructions given by the court of its own motion under the Municipal Court Act. The first was given for the defendant in error upon his theory of the case-and in which he was designated as “plaintiffs.” The third was an instruction as to the burden of proof simply, and the second instruction, probably intended as an instruction for plaintiffs in error, is in the following words:

“If you find that they did the work in question and it was not done under any arrangement, or any portion of it was not done under any arrangement, by which it was to be paid for, but it was simply done correcting the work which was defective and imperfect, which was under a former contract, then you should find in favor of the plaintiffs, if such portion of the work as you find was done under such circumstances.”

It was a clerical error in the court, no doubt, in using the word “plaintiffs,” instead of the word defendants, but nevertheless the instruction was erroneous in the particular named and was a very poorly worded instruction in other respects, and was calculated to mislead the jury. In the other instructions the plaintiffs in error are referred to as the “defendant.”

' The questions to be tried were simple and easy, and the court should have taken the time and the pains to have made the instructions plain, simple and accurate. We dislike very much to reverse judgments in simple cases like this, but we can not affirm any judgment upon the theory that the jury, although improperly instructed, may have properly guessed at the court’s meaning and rendered the -right verdict. The court also erred in ruling that the defendant in error could not be cross-examined by plaintiffs in error as to the cause of the original floors bulging up, and not being in proper condition, and, also, in refusing to allow him to be cross-examined as to whether or not there were any ingredients in his flooring material that would injure or damage the concrete under the same. Defendant in error had been allowed to state in his examination in chief that he had performed his original contract properly and completely, and had stated that it was faulty or bad concrete that had caused the floors to bulge. Plaintiffs in error had the right then without making him their witness to cross-examine him on those matters and to prove by him, if they could, that his work or his material was responsible for the bad floors in question.

There was no proof whatever of the third item in defendant in error’s statement of claim as above given and the verdict, therefore, was excessive. We think this case ought to be retried with permission to plaintiffs in error to refile their claim of set-off, if they desire to do so. We hold, however, that it was discretionary with the trial court to strike the statement in set-off or recoupment from the files, because not sworn to under the rules of the court before the trial was begun.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Jacob Grossky, Defendant in Error, v. John B. DeVoney, Trading as John B. DeVoney Company, Plaintiff in Error.
    Gen. No. 17,317.
    1. Bbokebs—commissions. In an action for profits or commissions on sales of realty, judgment for plaintiff held, supported by the evidence.
    2. Evidence—statement of witness as to profits of sale of realty. A statement by a witness that the profits of a sale of realty are a certain sum is not the statement of a mere conclusion.
    Error to the Municipal Court of Chicago; the Hon. John D. Tuenbaugh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed April 30, 1913.
    Bichard I. Gavin, for plaintiff in error; Gavin & Mater, of counsel.
    Aleck L. Bernstein and Samuel J. Shaeffer, for defendant in error.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

This action of the fourth class was brought in the Municipal Court by Jacob Grossky against John B. and Margaret DeVoney to recover his portion of the profits or commissions on nine sales of real estate specified in his statement of claim. On the trial the suit was dismissed as to Margaret DeVoney, and a verdict and judgment were rendered against John B. DeVoney in the sum of $764.63, and he prosecutes this writ of error.

The defendant in error proved by himself and Milton Plotke, the manager for plaintiff in error in his real estate business, that the plaintiff in error contracted and agreed with the defendant in error to pay the latter ten per cent, of the profits on all sales of lands by the plaintiff in error that should be listed for him for sale by defendant in error, and fifty per cent, of all net profits on sales by plaintiff in error for which sales defendant in error should find purchasers, and that in addition to the foregoing defendant in error was to be paid by plaintiff in error one dollar per day for his expenses while performing said services. Defendant in error also testified that said Milton Plotke was to first -receive ten per cent, of all the profits of such land sales and that his “net profits” were to be fifty per cent, of the remaining profits of such sales for which he furnished purchasers. The evidence of said two witnesses, portions of which were corroborated by other witnesses figuring in the sales as purchasers or sellers, shows clearly that under said contract defendant in error furnished purchasers to plaintiff in error for the following land sales mentioned in the statement of claim at profits indicated by the amounts immediately following the sales, to-wit:

F. H. Nelson property, sold to Joe Pernieiario..............$600.00
Nellie Bowe “ “ “ WolEson & Berger....... 350.00
Nellie Bowe resold “ Samuel Lieberman...... 100.00
Carlstead sold Frank L. Delameter.....150.00
Carlstead resold John Promisoo.......... 377.00
Jacob Graff sold ■ “ Michael Rolniek........ 370.41
Olson ' tt tt tt jj. j. Langhenry........ 150.00
Weber “ “ “ Harry Lapp............ 225.00
Beckman. “ “ “ Mr. Gutter.............. 200.00
$2522.41

The testimony of plaintiff in error clearly established by receipts signed by the defendant in error that the latter was paid by the former the total sum' of $424.60. The undisputed evidence of defendant in error in rebuttal was also, in substance, that one of said receipts signed by him for $118 was given for his ten per cent, of the profits on the sale of the Wagnér property (not,named in his statement of claim), for listing that property for sale for plaintiff in error.

Plaintiff in error contends here that the verdict does not support the judgment, and that it is excessive on defendant in error’s own theory and proof. It will be found that after deducting Plotke’s ten per cent, of all the profits above listed, and dividing the remainder of the profits in halves, and deducting from that result the whole amount of payment, less $118 received by defendant in error on the sale of the Wagner property, there will remain $828.48, which exceeds the judgment. Plaintiff in error admitted the contract practically as stated and proved by defendant in error, but instead-1 of the word “profits,” he used the word commissions, and now insists that defendant in error should only receive fifty per cent, of the commissions ordinarily charged by brokers in Chicago on such sales, or one-half of 2% per cent, of the entire sales, except on a few of said sales about which he admits defendant in error’s theory is right. Not even his own testimony supports this contention, and if it did support it, it would be overwhelmed by the other evidence in the case, both in the number of the witnesses, and by the proving force of such evidence. Much of plaintiff in error’s contention in this case is based upon his statement that no profits were proved, because when a witness states that the profits of a sale are a certain sum it is the statement of a mere conclusion, and not proof or evidence of the fact. We cannot agree with this contention. Besides, the amount of the sale by DeVoney and what the property cost him was particularly proved in every case by the evidence, showing the profits above listed.

The judgment is fully supported by the weight of the evidence and it is affirmed.

Affirmed.


text:
    Hubbard-Zemurray Steamship Company, Defendant in Error, v. John Crescio, Plaintiff in Error.
    Gen. No. 17,336.
    1. Executions—arrest. A judgment in tort does not warrant imprisonment in jail tor failure to pay when malice is not the gist of the action.
    2. Municipal Court—tort verdict in action on contract. That the verdict is in the form and language of a tort verdict while the statement of claim is in contract is not error.
    3. Corporations—doing business without license. In the absence of proof it is not presumed that plaintiff is a foreign corporation doing business without a license.
    4. New trial—diligence in discovering evidence. A party who moves for new trial on the ground of newly discovered evidence must show that he used due diligence.
    5. Depositions—motion to quash. A motion to quash depositions must be made in apt time.
    6. Appeals and errors—judgment entered against defendant in business name. Where one doing business in the name of his brother, appears and defends a suit naming the brother as defendant and judgment is rendered against him in the name of his brother it will be reversed and judgment entered on appeal against him in his real name, it appearing under the evidence that justice is done thereby.
    Error to the Municipal Court of Chicago; the Hon. John D. Tubnbauoh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed with judgments.
    Opinion filed April 30, 1913.
    Haynie & Lust, for plaintiff in error.
    Charles A. Butler, for defendant in error.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

The Hubbard-Zemurray Steamship Company began this fourth class action in the Municipal Court against John Crescio, and recovered a verdict and judgment against him in the sum of $126 and costs. David Crescio prosecutes this writ of error in the name of John Crescio to reverse the judgment.

By its statement of claim defendant in error declared, in substance, that" John Crescio was liable to it in said sum for his failure, in accordance with his contract, to receive and pay for a certain car load of bananas shipped to him by said company, f. o. b. cars, Mobile, Alabama.

The appearance of David Crescio, doing business as John Crescio, was filed by his attorney in the lower court, together with an affidavit of merits, sworn to by David Crescio, in which he stated that he was the defendant in the cause and was doing business as John Crescio, and that he was entitled to his counterclaim in recoupment for his damages therein set forth. A jury trial was had in which David Crescio participated as the sole defendant by Samuel Frank Nox, his attorney. The summons issued in the cause directs the officer to summon John Crescio, and the officer made return that he “Served this writ on John Crescio * David Crescio herein named by delivering a copy to him,” etc. John Crescio did not plead or appear in person at the trial. Defendant in error introduced evidence completely proving its claim against the defendant, John Crescio. David Crescio, as the defendant, was sworn and testified for himself that he and John Crescio were brothers; that his brother, John Crescio, formerly did business at 101 S. Water street, Chicago, and that he$ David Crescio, since that time has done business there as John Crescio, and that he, David Crescio, made the contract in question with defendant in error, and that John Crescio, his brother, had nothing to do with making that contract. He also testified, in substance, that the car of fruit offered him by the defendant in error was not the character of fruit purchased by him of it and that by reason thereof he was entitled to his counterclaim for dam-' ages. At the close of the evidence he, by his attorney, moved the court to direct the jury to find the “defendant not guilty,” which was denied, and the jurj then returned the following verdict:

“We, the jury, find the defendant guilty as alleged in the plaintiff’s statement of claim and assess the plaintiff’s damages at the sum of one hundred twenty-six dollars in tort.”

David Crescio thereupon moved the court to grant him a new trial which the court overruled, and also overruled his motion in arrest of judgment. Thereupon the court entered “Judgment on the verdict in favor of the plaintiff and against the defendant” for said sum and costs, and fixed the stay bond at the sum of $250. David Crescio tendered and had signed the bill of exceptions herein, and signed the stay bond in said sum as principal with John Crescio as surety, the bond reciting that this judgment was rendered against David Crescio. All the files of the lower court filed by the defendant in error from the statement of the claim to and including* the judgment of the court run in the name of the defendant in error against John Crescio, none of them at any time having been amended, and, therefore, the judgment stands of record against John Crescio instead of David Crescio.

Plaintiff in error insists here that the judgment against John Crescio is absolutely void, as he was never served with process, and that there can be no judgment against him, David Crescio, because being a person distinct from John Crescio, he should have been, but was not, made a party defendant in the cause. He also insists this court has no jurisdiction and suggests that we ought to dismiss this writ of error for want of jurisdiction, because John Crescio never was served and never appeared in the lower court, and because David Crescio, not being* a party to the judgment, has no standing in this court. In the event that we should not be disposed to dismiss the writ of error for want of jurisdiction, it is then argued by plaintiff in error that we reverse the judgment for errors of the court, (1) because the record shows that defendant in error is a foreign corporation and it does not affirmatively appear that it was legally licensed to do business in this state; (2) because the court denied plaintiff in error’s motion to quash defendant in error’s depositions; (3) because the suit is in tort and the verdict and judgment are in tort, instead of in contract, thereby making the defendant therein subject to jail imprisonment, if he fails to pay the judgment; (4) because the court refused to grant a new trial to permit the plaintiff in error to make the newly discovered defense that defendant in error was a foreign corporation and was illegally transacting its business in this state without a license contrary to the statute.

There is absolutely no merit in any of the foregoing contentions, save the one suggestion that the judgment stands of record against, the wrong party, John Crescio, instead of David Crescio, the real defendant in the lower court. There is no contention here that under the evidence the defendant in error is not justly entitled to a judgment against David Crescio in the sum of $126 and costs. David Crescio appeared in the court below and defended the suit as the real defendant, and the jury and the court-in fact rendered the verdict and judgment against him. The verdict and judgment stand of record against John Crescio simply and only because of the negligence of defendant in error’s counsel in the lower court in failing to amend all his files in said cause, and to substitute therein the name of David Crescio as defendant instead of that of John Crescio. There is nothing in the argument that the statement of claim and the judgment are in tort. If they were in tort that would not warrant imprisonment in jail for failure to pay the judgment as malice was not the gist of the action. First Nat. Bank of Flora v. Burkett, 101 Ill. 391. It is of no consequence that the verdict of the jury was in the form and language of a tort verdict, and plaintiff in error asked the court to direct for the plaintiff in error a verdict of “not guilty.” which is also a verdict in the form and language of a verdict in tort, while the suit, as shown by the statement of claim, was in contract. There was no defense made on the trial that the defendant in error was illegally transacting business in this state without a license contrary to the statute. In the absence of such defense or proof it will not be presumed that the defendant in error was a foreign corporation transacting business without a license, nor that its business was transacted in this state. March-Davis Cycle Mfg. Co. v. Strobridge Lithographing Co., 79 Ill. App. 683. The plaintiff in error entirely failed to show that he used due diligence in discovering and making such alleged newly discovered defense on the trial, and also failed to show that he made his motion in apt time to quash the depositions. He is not in a position, therefore, to complain of error, and there was no error, in the court’s rulings refusing to quash the depositions and to grant a new trial. As David Crescio did business in the name of John Crescio, and appeared in person and defended this suit in the court below as the real defendant, and also prosecutes this writ of error in the name of John Crescio, he has had his day in both courts. The record substantially shows that the judgment was really rendered against him on the merits in his business name of John Crescio as aforesaid. The judgment, however, is erroneous because it was not rendered against him in his real name. Such a judgment against him in his real name would have been both substantial and exact justice under the evidence, and should be entered against him in this court. Edgerton v. Chicago, R. I. & P. R. Co., 240 Ill. 311.

The judgment is, therefore, reversed and judgment is entered in this court in favor of the defendant in error and against plairtiff in error, David Crescio, in the sum of one hundred and twenty-six dollars and all costs in the court below, and for one-half of the costs in this court. Judgment is also entered in this court in favor of plaintiff in error and against the defendant in error for one-half of the costs in this court.

Reversed with judgments in this court.


text:
    Heaton Owsley et al., v. George A. Neeves et al. On Appeal of George A. Neeves, Appellant, v. Heaton Owsley and Harry B. Owsley, Appellees.
    Gen. No. 17,459.
    1. Mortgages—when mortgagee is entitled to rents during period of redemption. Where a trust deed expressly secures to mortgagee a lien on the rents during the period of redemption, the owner of the equity is not entitled to any portion of the rents during such period until the mortgagee’s deficiency judgment is paid.
    2. Mortgages—rents and profits. Rents and profits are the subject of mortgage.
    3. Mortgages—when mortgagee has lien on rents. A mortgagee has a specific lien on rents and profits when they are expressly pledged by the mortgage as part of his security.
    4. Mortgages—rents and profits during period of redemption. At a foreclosure sale the rents and profits for the period of redemption are not sold, the mortgagee having a lien thereon by the terms of the trust deed.
    5. Mortgages—order as to application of rents and profits. Where by the terms of a trust deed, the mortgagee has a lien on the rents and profits during the period of redemption, no order can be entered that they be applied on the debt until after foreclosure sale.
    6. Mortgages—when rents and profits belong to owner of equity. Where rents and profits' during the period of redemption are not expressly mortgaged to secure the debt, they belong to the owner of the equity of redemption, if he is not personally liable for the mortgage debt and there is no deficiency judgment against him.
    7. Mortgages—final disposition of rents during period of redemption. Where the mortgagee has a lien on the rents for the period of redemption, the court need not wait until expiration of the period before making a final disposition of them.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed April 30, 1913.
    George A. Neeves, Jr., and Lelahd K. Neeves, for appellant.
    Bryah Y. Craig, for appellees.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

May 24, 1910, Heaton Owsley and Harry B. Owsley, appellees, obtained a decree in foreclosure of a trust deed to J ames Patten as trustee to certain premises in Evanston, improved with an apartment building, executed by Arthur Foster and wife, Eleanor J. Foster, as owners to secure Arthur Foster’s noté for $20,000, owned by appellees and dated December 5, 1904. By warranty deed said Foster and wife on January 18, 1906, conveyed said premises to appellant, George A. Neeves, subject to said trust deed, and also subject to a second trust deed to State Bank of Chicago, trustee, to secure a $2,000 note of said Foster and wife, owned by Thomas B. Warner. Appellant and his wife, said Foster and his wife, said trustee, and their successors in trust, Thomas B. Warner, and others, as tenants or secondary lienors, were defendants in said decree and foreclosure proceedings. April 18, 1910, on motion of appellees and said Warner, and by consent of appellant, a receiver was appointed to collect the rents of the premises and to hold the same subject to the further order of the court. Sale was had of the premises pursuant to the decree, July 16, 1910, appellees purchasing the same for $21,500, leaving a deficiency of $668.82 for which sum appellees obtained a judgment against Arthur Foster. On November 23, 1910, the receiver filed his report showing a net balance of rents collected by him of $845.17, after deducting proper charges and disbursements. On December 20, 1910, upon petition of appellees and proof that execution had issued against Arthur Foster on their deficiency judgment and had been returned “no part satisfied,” the court ordered and decreed that said judgment of $668.82, with five per cent, interest from the date thereof, July 22, 1910, as a first lien on the rents be paid by the receiver out of the rents in his hands. From that last mentioned order and decree appellant prosecutes this appeal.

The said trust deed of appellees expressly conveyed said premises and the rents, issues and profits thereof, and then provided as follows:

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

The trust deed further provided that the indebtedness, including attorney’s fees and other charges, shall be paid out of the proceeds of the sale of said premises, “or from rents, as other costs, if not paid by said party of the first part.”

The sole question on this appeal, as stated by appellant, is whether or not the court erred in ordering the rents paid to appellees to satisfy their deficiency judgment. The rents in question are those accruing after the sale, appellant conceding that appellees, as mortgagees, are entitled to have the rents accruing before sale applied to the payment of said judgment. Appellant contends that all the security under the trust deed was sold and exhausted by the sale, rents, profits and everything else; and that the trust deed upon which the proceedings were based became entirely merged in the decree and judgment, and ceased to further bind the parties to it or their privies. Appellant was deeded the premises subject to the trust deeds. He did not assume or promise to pay the mortgage debts secured by the trust deeds, and hence he was under no obligations to do so. He was not a party to the deficiency judgment, and was under no obligation to pay the judgment or any part of it, and there is no contention that he was so obligated. He did nevertheless take the mortgaged premises subject to whatever lien appellees secured thereon hy virtue of the trust deed. If the trust deed secured to appellees a lien on the rents of the premises during the period allowed for redemption from the sale, then appellant is not entitled to any portion of the rents accruing after sale and before the time for redemption expired, until appellees’ deficiency judgment is completely paid. Appellant cannot get away from the fact that his rights in the premises are subject to whatever lien was. created in favor of appellees by their trust deed. Bents and profits are the subject of mortgage. A mortgagee has a specific lien upon rents and profits of mortgaged land when they are expressly pledged by the mortgage as part of his security. The trust deed of appellee expressly provides for the appointment of a receiver for the benefit of appellees as the legal holders of the indebtedness thereby secured, with power to collect rents, issues and profits of the said premises pending foreclosure proceedings and until .the time for redemption shall expire. It also provides expressly that the debt shall be paid from the proceeds of the sale or from such rents, if hot paid by the mortgagee. Appellant, as subsequent purchaser, was bound by those terms of the trust deed, and the chancellor could not legally or equitably decree otherwise than that appellees were entitled to have their deficiency decree or judgment fully paid out of the rents in question. Appellees had this right, not as purchasers at the sale, but as prior lienors by virtue of the provisions of the trust deed. The property described in the mortgage was sold at the sale, but the rents and profits that accrued, during the redemption period were not sold. No order could have been properly entered for those rents to be applied on the debt until after the sale and after it was ascertained that the sale would not completely equal or satisfy the debt and costs. After the deficiency was established appellees then for the first time were entitled to an order applying the rents to extinguish their judgment, and they were entitled to such an order by reason of the express provisions of the trust deed to which appellant’s rights were subject by the express terms of the deed made to him. The foregoing principles are well established as law and equity in this state. First Nat. Bank of Joliet v. Illinois Steel Co., 174 Ill. 140; Oakford v. Robinson, 48 Ill. App. 270; Ortengren v. Rice, 104 Ill. App. 428; McLester v. Rose, 104 Ill. App. 433; Townsend v. Wilson, 155 Ill. App. 303; Bagley v. Illinois Trust & Savings Bank, 199 Ill. 76; Ball v. Marske, 202 Ill. 31; Prussing v. Lancaster 234 Ill. 462.

Appellant cites a number of cases to the effect that foreclosure and sale of mortgaged premises extinguishes the lien of the mortgage. They are not ap-plicable here as the rents in those cases named were not expressly mortgaged or pledged to secure the debt as in this case. He also cites Schaeppi v. Bartholomae, 217 Ill. 105, and Standish v. Musgrove, 223 Ill. 500, as authority for the propositions that appellees in this case as purchasers are not entitled to the rents in question, and that they rightfully belong to appellant as owner of the equity redemption. Appellees are not entitled to the rents as purchasers, as we have already suggested, and if the question in this case, as in those above cited, was a question pure and simple as to whether a purchaser, as purchaser, or the owner of the equity of redemption was entitled to the rents, we would hold that the latter is entitled to them. But the question here involved is not between appellees as purchasers and appellant as the owner of the equity of redemption, and, therefore, those cases cited are not in point. Where the rents and profits are not expressly mortgaged to secure the debt, they, during the period of redemption, belong to the owner of the equity of redemption, if he is not personally liable for the mortgage debt and there is no deficiency judgment against him.

As appellees had the equitable right to have their deficiency judgment satisfied out of the rents in question, appellant’s second contention that the court should have waited until the expiration of the period allowed for redemption before making final disposition of the rents, is also untenable. Appellees had the right to the rents whether the premises should or should not be redeemed from the sale. Redemption would certainly render the certificate of purchase null and void, but could not in this case defeat appellees in their right to have the pledged rents applied to the ex-tinguishment of their deficiency judgment.

The decree of the court is affirmed.

Decree affirmed.


text:
    Robert E. Cantwell, Appellant, v. C. H. Kimmerle, Trustee in Bankruptcy of Lyle, Gage & Co., Appellees.
    Gen. No. 17,475.
    1. " Chancery—when will not relieve from adjudication at law. Equity will not interfere to relieve from an adjudication of a law court having full jurisdiction except upon the ground of newly discovered evidence; of fraud in obtaining the judgment; or of some inevitable accident or mistake.
    2. Chancery—when will not enjoin enforcement of judgment at law. When in a suit on a note in a court having complete jurisdiction matters of set-off and payment were pleaded, evidence was heard and judgment was rendered for plaintiff, equity will not enjoin its enforcement on the grounds that it was unjust, irregular or erroneous or because the court of equity would have come to a different conclusion iff deciding the case.
    Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed April 30, 1913.
    A. N. Tagert, for appellant.
    Rosenthal & Kubz, for appellee.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

This appeal is prosecuted by Bobert E. Cantwell to reverse a decree of the Superior Court dismissing his bill of complaint for want of equity, on evidence heard in open court.

The facts averred in the bill are, in substance, that on April 8, 1907, appellant at Chicago bought from Frank Lyle some law books for $1,300, by paying $1,000 in cash and giving his note to Lyle for $300; that on November 19, 1907, said note was surrendered to appellant by Lyle in consideration of a renewal note for $311 due January 2, 1908, signed by appellant and payable to Frank Lyle,/ ‘by the style and description of The City Bank, Lyle, Cage & Co., Bankers, Dowagiac, Michigan;” that in March, 1908, Lyle, Cage & Co. were adjudicated bankrupts by the District Court of the United States for the Southern District of Michigan, and C. H. Kimmerle appointed trustee in bankruptcy of said bankrupt estate; that on May 13, 1909, said trustee in bankruptcy obtained in the Municipal Court of Chicago a judgment on said second note for $338.40 and $9.50 costs, against appellant; that said Frank Lyle was at the time of said adjudication in bankruptcy, and still is, indebted to appellant for legal services rendered to him during the year prior to said bankruptcy for an amount exceeding the amount of said judgment; that about October, 1907, appellant paid the Chicago American one hundred dollars at Frank Lyle’s request, and that said Lyle after-wards agreed with appellant that said sum and the amount due appellant for services should be applied to the payment of said indebtedness' and the note returned to appellant; that said Lyle was a member of the firm of Lyle, Cage & Co., and that each and all of them were at the same time adjudged and are bankrupts, and had knowledge that said note was so paid, and that it belonged to said Frank Lyle; that by reason of the possession of said note by said trustee, appellant could not in a court of common law secure said set-off, and therefore prays that said trustee be em joined perpetually from attempting to collect said judgment, etc.

The evidence of appellant on the trial tended to prove his bill. The evidence, however, also showed that he had pleaded the matters of set-off and payment set up in his said bill in the Municipal Court, and that a trial was had and evidence heard upon said issues and that the verdict and judgment of the court were rendered against him on those issues in the Municipal Court. Frank Lyle testified in the Municipal Court, in substance, that he turned this note over to said banking firm and took credit for it on his personal account there; that the note was never paid by appellant and that appellant had no rightful claim or set-off against the payee of the note, and it is conceded by appellant that he made Ms defense in the Municipal Court, the same defense now made in this court. There is no question that the Municipal Court had full jurisdiction to hear and decide the matters there and here in issue. A court of equity will not interfere to relieve a party from such an adjudication, except upon the ground of newly discovered evidence' since the trial; of fraud in obtaining the judgment; or of some inevitable accident or mistake. 2 Story’s Equity Jurisprudence, Secs. 1572, 1573; Hofmann v. Burris, 110 Ill. App. 348; Telford v. Brinkerhoff, 163 Ill. 439.

A court of equity will not enjoin the enforcement of such a judgment when the law court had complete jurisdiction, on the grounds simply that it was unjust, irregular or erroneous, or because the court of equity would in deciding the cause have come to a different conclusion. A writ of error was appellant’s proper remedy. 1 Black on Judgments, Sec. 367; More v. Bagley, 1 Ill. (Breese) 94; Clark v. Ewing, 93 Ill. 572.

The decree of the court is affirmed.

Decree affirmed.


author: Mr. Presiding Justice Dustcart

text:
    John Bierma for use of Chicago Laboratory Sanitarium, Appellee, v. Columbia Typewriter Manufacturing Company, Appellant.
    Gen. No. 17,488.
    1. Replevin—objection to jurisdiction to enter judgment in replevin in action on replevin bond. Plaintiff in a replevin action cannot urge when sued on his replevin bond that the judgment in replevin is void because the necessary orders of continuance by the justice from whom a change of venue was taken to the justice who entered judgment are not shown where he appeared in person before the justice who entered judgment and asked for and was granted a non-suit and a writ of retorno habendo was ordered.
    2. Replevin—when plaintiff in replevin estopped in action on bond to set up lack of jurisdiction to enter judgment in replevin. When sued on his replevin bond, plaintiff in the replevin action is estopped to set up want of jurisdiction of the justice before whom his action was brought, or before whom he appeared and prosecuted his action or before whom he obtained an order and judgment of non-suit and return of the property replevied.
    3. Replevin—material facts to be proved on action on replevin bond. In an action on a replevin bond, the material facts to be proved are the termination of the replevin action, judgment for defendant and the order for the writ retorno habendo.

    4. Replevin—when plaintiff loses right to contest defendant's claim to the property. Plaintiff in replevin by suffering his action to be dismissed with an order for the return of the property, loses all right to contest defendant’s claim to the property except, under the statute, to plead and prove his title in mitigation of damages.
    Appeal from the Circuit Court of Cook county; the Hon. Mebbitt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed April 30, 1913.
    Fred A. Bastgs, for appellant.
    Gr. E. M. Pratt, for appellee.
   Mr. Presiding Justice Dustcart

delivered the opinion of the court.

This is a suit on a replevin bond, brought in the name of the officer, John Bierma, for the use of the Chicago Laboratory Sanitarium, and against the Columbia Typewriter Manufacturing Company, appellant, to recover the value of a typewriter taken under a replevin writ. In a trial before the court without a jury the court found the issues for appellee, his debt to be the sum of $200, the amount of the replevin bond, and assessed his damages at $100, the proved value of the typewriter, and rendered judgment accordingly.

The facts, in substance, are that about November 23, 1903, Dr. Pratt’s American X-ray Journal Company purchased the said typewriter new from appellant and paid for the same in advertising in a paper published by the said Journal Company. Dr. Pratt’s American X-ray Journal Company then sold and delivered the typewriter to the Chicago Laboratory Sanitarium, and it was in the possession of the latter company, July 19, 1905, when appellant began the replevin suit against the said Journal Company before John Richardson, a Justice of the Peace, who delivered the writ to Bierma, a constable, who took the typewriter from the sanitarium company and turned it over to appellant. The journal company defended the replevin suit and secured a change of venue from Justice Richardson to Justice James C. Martin, July 31, 1905; and on July 24, 1905, the cause reached Justice Martin from Justice Richardson, and was continued to July 28, 1905, and on September 22, 1905, the case was called for trial, the parties being present, and a change of venue was granted by Justice Martin to Justice John C. Everett, according to the transcripts taken from the dockets of Justices Richardson and Martin. The evidence then discloses the following orders in the replevin suit before Justice Everett:

“September 22, 1905, 9 a. m. This case comes to this court on change of venue from Justice Martin and is continued to September 29, 1905, 9 a. m., when continued to October 5, 1905, 9 a. m. October 5, 1905, 10 a. m. Case called. Plaintiff asks for a,nd is granted non-suit—Retomo habendo ordered.”

The files accompanying the transcript of Justice Everett show the replevin writ, affidavit and bond all bear date July 19, 1905, and the writ was returnable July 24, 1905, before Justice Eichardson.

Appellant contends that the judgment in this case was not and is not supported by the evidence, because the transcript of Justice Everett’s docket signed by him of date September 7, 1906, shows that the case in replevin came to him on change of venue from Justice Eichardson on September 22, 1905, when the cause was continued to September 29, 1906, more than a year later, when it was again continued to October 5, 1906, at which time the case was called and plaintiff asked for and was granted a non-suit and a writ of retorno habendo was ordered. The transcript introduced in evidence did so show, but it also is clearly shown by the docket of Justice Everett that the two dates in the transcript, September 29, 1906, and October 5, 1906, were the result of clerical errors and should have appeared as of dates September 29, 1905, and October 5, 1905. The transcript itself bears evidence of such errors, as it was issued on September 7, 1906, or long before either of such erroneous dates. The docket itself also shows that the change of venues were from Justice Eichardson to Justice Martin and from Justice Martin to Justice Everett. It is also argued that jurisdiction of the replevin suit was lost by Justice Eichardson and by Justice Everett, and the judgment in replevin void, because the only order appearing upon Justice Eichardson’s docket was that of a change of venue on July 31, 1905, and that no order appears on Justice Martin’s docket between the dates July 28, 1905, and September 22, 1905, almost two months, and that, therefore, no proper and necessary orders of continuance were shown, if they were ever granted. It is true that the dates given in the last named transcripts are irreconcilable and that proper entries of continuances in the case do not appear, but it does not matter how the case came before Justice Everett. The appearance of appellant before, the last named justice gavé jurisdiction of his person and he is bound by the order and judgment of non-suit and order for the return of the property entered by the justice at his own instigation. Wiggins v. City of Chicago, 68 Ill. 372.

A plaintiff in a replevin suit, when sued upon his replevin bond, is estopped to set up a want of jurisdiction of the justice of the peace before whom he brought his suit, or before whom he appeared and prosecuted his suit, or before whom he obtained an order and judgment of non-suit and return of the property replevied. Mayer v. People, 190 Ill. 109; Fahnestock v. Gilham, 77 Ill. 637; Bates v. Williams, 43 Ill. 494; Tedrick v. Wells, 39 Ill. App. 657.

The material facts to be proved in a suit on a replevin bond are the termination of the replevin suit, judgment in the defendant’s favor, and the order for the writ retorno habendo. It is wholly unimportant what led to that result, or in what phraseology it was declared. A plaintiff in replevin, by suffering his suit to be dismissed with an order for the return of the property, loses all right to contest the claim of the defendant in replevin to the property, except that given him by the statute, which is to plead and prove bis title to the property in mitigation of damages. Stevison v. Earnest, 80 Ill. 513.

The evidence in the record amply sustains the judgment and it.is affirmed.

Judgment affirmed.