text:
    Eugene J. Lamarre, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company et al., Appellants.
    Gen. No. 6,728.
    1. Appeal and ebrob, § 1184

      —when counts disregarded. Where, in an action to recover for the death of a minor killed by defendant’s train, no evidence is offered by plaintiff as to a failure to ring a bell or blow a whistle, on appeal from a judgment for plaintiff, counts in the declaration setting up such omissions will be disregarded.
    2. Railroads, § 651*—when recovery for ordinary negligence barred by contributory negligence. In an action to recover for the death of one killed by defendant’s train as he was walking on its track at a street intersection, where there were eyewitnesses to the accident, plaintiff offers no evidence tending to show that deceased was in the exercise of ordinary care for his safety at the time of and just before the accident and the only one of his witnesses who saw the accident or saw deceased within half a block thereof testified that he did not see deceased until just before the accident and that deceased was crossing at his natural gait, whereas the evidence of defendant’s witnesses tends to show that deceased was guilty of contributory negligence, no recovery can be had under the counts of the declaration charging ordinary negligence.
    3. Appeal and error, § 1392*—when refusal to direct verdict not disturbed. In an action to recover for the death of one killed by defendant’s trains, the Appellate Court will not overrule the action of the trial court in refusing to direct a verdict for the defendant, notwithstanding there is no evidence in the record tending to show that deceased was not guilty of contributory negligence and the evidence tending to show wanton and wilful negligence on defendant’s part is very slight.
    4. Railroads, § 779*—when instruction erroneous as ignoring element of due care on plaintiff’s part. In an action to recover for the death of one ■ struck by defendant’s train while he was on its track in a public street, it is error to instruct that “under the law of this State the general public have the right to use and travel upon the entire street in any city, including that portion of it on which railroad tracks are laid, and that the public are in no sense to be considered as trespassers for so doing,” and that if the jury believe from the evidence that the place where deceased was killed was a public street in the city upon which railroad tracks had been laid, still deceased “had a right to use and travel upon the entire street including that portion of it on which said tracks were laid, and that he in no sense is to be considered as a trespasser for so doing,” as it ignores the question of due care on the part of deceased and tends to mislead the jury into thinking that he had as much right on such track as defendant's train had at that time.
    5. Railroads, § 607

      —rights and duties on streets compared with street railways. The respective rights and duties of pedestrians and railroad trains at street intersections in cities are not the same as the respective rights and duties of pedestrians and street cars.
    6. Railroads, § 611*—duty to persons using streets. A railway company having its track in a city street must employ all reasonable means to avoid injuring persons rightfully using that portion of the street occupied by its' tracks, subjegt to the rule that such persons must exercise ordinary care for their own safety and not obstruct the passage of the cars.
    7. Railroads, § 611*—right of pedestrian to walk upon tracks laid in street. A person may walk upon the tracks of a railway company laid in a street without becoming a trespasser, but in obedience to the well-known custom of the country, it is his duty to leave the tracks when his presence there serves to impede the passage of the cars.
    8. Instructions, § 118*—basis on evidence. Instructions must be based on the evidence.
    9. Railroads, § 775*—when instruction on duty to warn erroneous as not supported by evidence. In an action to recover for the death of one killed by being struck by defendant’s train, it is improper to give an instruction as to defendant’s liability in case its employees saw deceased on the track in a position of danger in time to have warned him or to have stopped the train, where there is no evidence in the case in support thereof.
    10. Words and phrases—recklessness defined. Recklessness is “the state or quality of being reckless; heedlessness; carelessness; negligence.”
    11. Railroads—when instruction on wilfulness erroneous as making it synonymous with recklessness. In an action to recover for the death of one killed by being struck by defendants’ train, it is error to instruct the jury that “certain of the counts of the plaintiff’s declaration allege that the deceased, Louis Walters, was killed by the wilful and wanton act of the defendants, and the court further instructs you that contributory negligence of a person who Is injured or killed is no defense in any case where the action of the defendant is wilful, wanton and reckless, and injury or death ensues from the result. And the court further instructs you that if you believe from a preponderance of the evidence that the employees of the defendants operating tie train in question, saw Louis Walters in a position of danger a sufficient length of time to have warned him or to have stopped the train and thereby avoided the injury to him, or that said employees failed, through their own recklessness, to discover the . danger of Louis Walters when by the exercise of ordinary care they could have discovered the danger, and averted the injury, and thereby Louis Walters was killed, then the fact that you might find that the said Louis Walters was guilty of contributory negligence would be no defense,” since such instruction makes recklessness the equivalent of wilful and wanton negligence and does not distinguish between negligence and wilful and wanton negligence.
    12. Negligence, § 91

      —what degree of recklessness creates liability irrespective of contributory negligence. Recklessness of a defendant which will render him liable in the absence of ordinary care on the part of the plaintiff is such negligence as shows a disregard for life or property.
    Appeal from the Circuit Court of Kankakee county; the Hon. A. W. De Selm, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed March 9, 1920.
    W. R. Hunter, for appellants.
    J. Bert Miller, for appellee.

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

      See Illinois Notes Digest, A’ols, XI to 2¡;v, and Lumulaiive Quarterly, same topic and section number.

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

   Mr. Justice Heard

delivered the opinion of the court.

At Kankakee the Illinois Central Eailroad runs north and south and the Kankakee & Seneca Eailroad, which is a part of the Cleveland, Cincinnati, Chicago & St. Louis Bailway, commonly called the “Big Four,” runs east and west. A “ Y” turns oil from the Illinois Central tracks some distance north of the crossing of .the roads and runs to the southeast on a curve until it joins the Kankakee & Seneca east of the crossing. The Kankakee & Seneca tracks are laid in Cypress street, one of the public streets of the City of Kankakee. After coming around the Y, Big Four trains from the north run east on Cypress street a few blocks to the passenger station of the Big Four. The railroad tracks on Cypress street are frequently used for the public travel.

On February 27,1916, Louis Walters, a boy 15 years of age, while walking east upon the main track of the Kankakee & Seneca on Cypress street, at its intersection with Dearborn street, was struck and killed by a passenger train which had just come from the Y and was going east to the Big Four station. This suit was brought by the administrator of the estate of Louis Walters, deceased, appellee, against appellants, the Big Four and Illinois Central Railroad Company. The trial in the circuit court resulted in a judgment of $5,000 in favor of appellee, from which appellants appealed to this court.

The declaration in the case contains twelve counts, the first alleging general negligence in operating the train. The fifth is the same except that the negligence is charged to have been wilful and wanton. The second count is upon the statutory requirement as to sounding a bell or whistle and alleges failure to ring a bell or blow a whistle. The sixth is the same except that the failure to ring bell or blow whistle is charged to have been wilful and" wanton. The third count charges that there was an ordinance of the City of Kankakee requiring the bell of each locomotive to be rung continuously while running within the city and a failure to comply therewith. The seventh count was the same except that the failure to ring bell was alleg*ed to have been wanton and wilful. The fourth count charges a violation of a city ordinance limiting the speed of passenger trains to 10 miles per hour. The eighth count charges such violation to have been wilful and wanton. The ninth count charges that defendants wantonly and wilfully ran the train over deceased. The other counts were repetitions.

Appellee offered no evidence as to a failure to ring a bell or blow a whistle and those counts are eliminated from our consideration.

There were eyewitnesses to the accident. Appellee offered no evidence tending to show that deceased was in the exercise of ordinary care for his own safety at the time of and just prior to the accident. The only one of the appellee’s witnesses who saw the accident or who saw deceased within half a block of the accident is Fred Jewett, who testified that he did not see deceased until just .before deceased was struck and that he was walking east at a natural gait on Cypress street within the limits of Dearborn avenue. The evidence of appellants’ witnesses tended to show that deceased was guilty of contributory negligence. In this state of the record no recovery could be had under the counts of the declaration charging ordinary negligence.

At the close of appellee’s evidence and at the close of all the evidence, appellants moved the court to instruct the jury to find the defendants not guilty, which motion the court denied and this action of the court is assigned as error. While there is no evidence in the record tending to show that deceased was not guilty of contributory negligence and the evidence tending to show wilful and wanton negligence on the part of the appellants is very slight, we are not disposed to overrule the court’s action in this respect. McCune v. Reynolds, 288 Ill. 188.

It is urged that the court erred in giving appellee’s third instruction, which is as follows: “The court instructs you that under the law of this State the general public have the right to use and travel upon the entire street in any city, including that portion of it on which railroad tracks are laid, and that the public are in no sense to be considered as trespassers for so doing, and in this case you are instructed, that, if you believe from the evidence, that the place where Louis Walters was killed was a public street in the City of Kankakee upon which railroad tracks had been laid, still Louis Walters had a right to use and travel upon the entire street including that portion of it on which said tracks were laid, and that he in no sense is to be considered as a trespasser for so doing.”

In Toledo, W. & W. Ry. Co. v. Jones, 76 Ill. 316, it is said: “It is further complained that appellant’s first instruction was modified to their injury. As asked, it was as follows: ‘The court instructs the jury that it was not the duty of the engineer in charge of the locomotive, on nearing the road crossing, to stop his train for the purpose of avoiding a collision with the wag’on and team he saw approaching the crossing, though by applying the brakes he could do so in time to avoid the collision; but it was the duty of the person in charge of the team, in obedience to the known custom of the country, to stop his team and not attempt to pass in front of the advancing train. ’ ” This instruction states the law, and is in conformity with the rulings of this court in St. Louis, A. & T. H. R. Co. v. Manly, 58 Ill. 300, and Chicago & A. R. Co. v. Jacobs, 63 Ill. 178. In Newell v. Cleveland, C., C. & St. L. Ry. Co., 261 Ill. 511, it is said: “By the second instruction the jury were informed that the deceased bad a right to use any part of Walnut street in crossing the railroad of plaintiff in error, and that in so doing he ‘had an equal right with the defendant railway company to pass over said railroad track of the defendant. ’ By this instruction the jury would have been warranted in believing that the deceased was not required to use ordinary care in crossing over the railroad tracks of plaintiff in error, or that the servants of plaintiff in. error were required to use the same degree of care and caution to avoid injuring the deceased as he was required to use to avoid being injured. This is not the law. Where a. railroad train and a person traveling on the highway each approaches a railroad crossing at the same time, it is not the duty of the company to stop its train, bnt it is the duty of the traveler, in obedience to the known custom of the country, to stop and not attempt to pass in front of the advancing train. (Toledo, W. & W. R. Co. v. Jones, 76 Ill. 311; Chicago, B. & Q. R. Co. v. Damerell, 81 Ill. 450.) While the deceased had the right to pass over the railroad track at its intersection with Walnut street, it was incumbent upon him to use ordinary care for his own pafety while doing so, which would include observing whether a train, engine or cars were about to pass over the crossing. This instruction should not have been given. ’ ’

The instruction in the present case ignores the question of due care on the part of deceased which might tend to mislead the jury into thinking that deceased has as much right in walking in the railroad tracks in Cypress street as the railroad train had at the particular time in question,. This is not the law in this State. The respective rights and duties of pedestrians and railroad trains at street intersections in cities are not the same as the respective rights and duties of pedestrians and street cars. The railway company must employ all reasonable means to avoid injuring persons rightfully using that portion of the street occupied by its tracks, subject to the rule that such persons must exercise ordinary care for their own safety and not obstruct the passage of the cars. A person may' walk upon the tracks of a railway company laid down in a public street without becoming a trespasser, but in obedience to the well-known custom of the country, it is his duty to leave the tracks when his presence there serves to impede the passage of the cars. North Chicago Elec. Ry. Co. v. Peuser, 190 Ill. 67.

In Pienta v. Chicago City Ry. Co., 284 Ill. 246, the following instruction was given: “If you find from the preponderance of the evidence, under the court’s instructions, that Ashland avenue where the accident in question occurred was at said time a public highway, then the general public had the right to use and travel upon the entire street, including that portion of it on which car tracks were laid, and in so doing they were not trespassers; and it was the duty of operators of street cars in said street, when approaching places where part of the street occupied by their tracks was being used by another, to exercise reasonable care not to run into or injure the person so occupying such part of the street.” In commenting on* this instruction on page 263, the court says: “In our judgment this instruction, in the light of the facts in this record, might tend to mislead the jury into thinking that defendant in error and the driver, Ptasek, had as much right in driving on the northbound track as the northbound car had on that track. This is not the law in this State. Without question it is the duty of those operating street cars, even under such circumstances, to exercise reasonable care not to injure other persons occupying that portion of the street, but it is clearly not the law that a wagon would have a right on this northbound track equal with that of the northbound street ear, and while, obviously, the driver of the wagon by driving on the northbound track in the opposite direction from the northbound car would not be a trespasser in so doing, yet the driver of the wagon would not have the same right on that track as would the northbound street car, and this instruction, worded as it was, in our judgment, in the light of this record, might tend to lead the jury to believe that he did have an equal right on this northbound track.” The giving of the instruction in question was error.

Complaint is made of the giving of plaintiff’s sixth instruction, which is as follows: ‘ The court instructs you, that certain of the counts of the plaintiff’s declaration allege that the deceased, Louis Walters, was killed by the wilful and wanton act of the defendants, and the court further instructs you that contributory negligence of a person who is injured or killed is no defense in any case where the action of the defendant, is wilful, wanton and reckless, and injury or death ensues from the result. And the court further instructs you that if you believe from a preponderance of the evidence that the employees of the defendants operating the train in question, saw Louis Walters in a position of danger a sufficient length of time to have warned him or to have stopped the train and thereby avoided the injury to him, or that said employees failed, through their own recklessness, to discover the danger of Louis Walters when by the exercise of ordinary care they could have discovered the danger, and averted the injury, and thereby Louis Walters was killed, then the fact that you might find that the said Louis Walters was guilty of contributory negligence would be no defense in this case. ’ ’

Instructions must be based on the evidence. There is no evidence in the case that any employee of appellants saw deceased in a position of danger a sufficient length of time to have warned him or to have stopped the train. It assumes that appellants’ employees were guilty of recklessness and makes such recklessness the equivalent of wanton and wilful negligence. The word “recklessness” is defined in Webster’s dictionary as: ‘ ‘ The state or quality of being reckless; heedlessness; carelessness; negligence.” The instruction in question does not make a distinction between ordinary negligence and wilful and wanton negligence. We are mindful of the fact that the Supreme Court has twice, used language which might be so construed where the recklessness shown by the evidence clearly showed an utter disregard for life and property, but the later decisions and the great weight of authority is that the recklessness of a defendant which will render him liable in the absence of ordinary care on the part of the plaintiff is such negligence as shows a disregard for life or property.

“In order that one may be held guilty of wilful or wanton conduct, it must be shown that he was conscious of his conduct, and conscious, from his knowledge of existing conditions, that injury would likely or probably result from his conduct, and that with reckless indifference to consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result. In order to establish wantonness it is not necessary to show an entire want of care. The violation of a statute does not constitute a wilful wrong. A wilful injury will not be inferred when the result may be reasonably attributed to negligence or inattention.” 29 Cyc. 510.

This instruction should not have been given. Neice v. Chicago & A. R. Co., 254 Ill. 604; Freeman v. United Fruit Co., 223 Mass. 300, 111 N. E. 789.

For the errors in giving instructions the cause is reversed and remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Heard

license: Public Domain

text:
    Olaf Lindblom et al., Appellees, v. Purity Ice & Refrigerating Company, Appellant.
    Gen. No. 6,737.
    1. Appeal and eebob, § 731

      —what not part of. record. Notes on the judge’s docket and the printed calendar are no part of the record.
    2. Appeal and ebbor, § 931*—remedy where minutes on judge’s docket differ from record as written by clerk. If the minutes of the judge’s docket differ from the record as written by the clerk, the proper remedy is to apply to the court below to have the record amended and corrected, as such office cannot be performed in the Appellate Court.
    3. Nuisance, § 50*—when evidence does not support joint cause of action for. The count in a declaration in a joint action brought by a husband and wife to recover for damages caused by the operation of an ice plant across the street from their property is not supported by evidence tending to show that by reason of such noises plaintiffs and their family suffered from loss of sleep which made them nervous and ill in health, that the husband put cotton in his ears to shut out the noise so that he could sleep but was compelled to desist from doing so because his physician advised him that it was affecting his hearing, and tending to show personal annoyance and discomfort caused by the noises, since such evidence does not show or tend to show a joint cause of action.

      4. Nuisance, § 5*—when noise not actionable. There can be no recovery for the annoyance and discomfort arising from the noises necessarily caused by the lawful operation of a legitimate business enterprise in a crowded manufacturing city.
    5. Nuisance, § 4*—right to recover for injury to property due to mist being blown against house. A- husband and wife may recover in a joint action for injury to property owned by them and in their joint possession through mist caused by the operation of defendant’s ice plant being blown by the wind on such property interfering with the use of that side of the house.
    6. Nuisance, § 4*—when method of operating and not laws of nature proximate cause. Where, owing to the manner in which water used for making ice in defendant’s plant is handled, a mist is created, defendant is liable for the injury to adjoining property by the deposit of such mist thereon, notwithstanding the carrying of such mist to plaintiffs’ property is caused by the operation of the laws of nature, since defendant’s method of handling the water whereby the mist is created is the proximate cause of the injury.
    7. Appeal and error, § 1423

      —when judgment affirm.ed notunthstanding errors. Where the evidence necessitated a judgment for plaintiffs and the judgment was only nominal, it will be affirmed, notwithstanding there may have been errors on the trial.
    Appeal from the Circuit Court of Lake county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 9, 1920.
    Rehearing denied April 14, 1920.
    Maguire, Mooney & Castagnino, of Chicago, and H. C. Coulson, of Waukegan, for appellant.
    Cooke, Pope & Pope and Leslie A. Needham, for appellees.

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

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

   Mr. Justice Heard

delivered the opinion of the court.

Appellees are husband and wife living on Walnut street in the City of Highland Park, with the rear of their premises on Deerfield avenue north of, and about 70 feet from, the ice plant of appellant, which faces north on Deerfield avenue, across the street from the rear of appellees’ property.

Appellees’ declaration consists of three counts, the first count alleging damages arising from noises coming from the operation of the plant. The second count is based upon noises coming from trucks hauling away ice between the hours of 2 and 4 a. m. every day, and the third count alleges the erection, above the buildings used as an ice plant, of a high water tower from which sheets of water were permitted to fall around the outtside of the water tower, down upon high platforms, and to be blown by the wind into the sleeping apartments of appellees, damaging the property and furniture of appellees therein and rendering the premises less fitted for habitation, and that in consequence thereof appellees were obstructed and prejudiced in the use and enjoyment of said dwelling house. The trial resulted in a verdict of $1 and judgment thereon in favor of appellees, from which appellant has taken this appeal.

Appellees moved to strike the bill of exceptions from the record and that motion was taken with the case. Each side suggested diminution of the record and requested leave to file additional records and these motions were also taken with the case. Appellant’s motion for leave to file additional record will be granted. Appellees’ motion to file additional record as to the placita contained therein will be granted, but will be denied as to the copy of notes from the judge’s docket and printed 'calendar, because the notes on the judge’s docket and the printed calendar are no part of the record. People v. Leinecke, 290 Ill. 560. If the minutes of the judge’s docket differ from the record as written by the clerk, the remedy is to apply to the court below to have the record amended and corrected. We cannot perform that office here. The motion to strike the bill of exceptions from the record will be denied.

It is argued that the court erred in refusing to permit the jury to view the premises, in the admission of evidence and in the giving of instructions. In the view which we take of this case, we deem it unnecessary to discuss these questions.

All of the evidence introduced by appellees to sustain the first and second counts of the declaration was evidence tending to show that by reason of the noises emanating from the ice plant, appellees and their family suffered from loss of sleep which made them nervous and ill in health; that Olaf Lindblom used cotton in his ears to prevent the hearing of the noise in an endeavor to sleep, but was compelled to discontinue it on the advice of a physician, because it was affecting his hearing, and evidence tending to show personal annoyance and personal discomfort caused by the noises. This is a joint action brought by Lindblom and his "wife and none of this evidence shows or tends to show a joint cause of action. The fact that the grievance of husband and wife are similar does not justify joining them in one action.

“When the interests are several, there could as a rule be no joinder, even when the rights of all the plaintiffs have been violated by one and the same wrongful act on the' part of the defendant, or had arisen ex- contractu out of one and the same transaction with defendant.” 30 Cyc. 106; Tennant v. Pfister, 51 Cal. 511; American Plate Glass Co. v. Nicoson, 34 Ind. App. 643, 73 N. E. 625; Brunner v. Bay City, 46 Mich. 236, 9 N. W. 263; Girard v. Lehigh Stone Co., 280 Ill. 485. The noises shown by the evidence were necessarily caused by the lawful operation of a legitimate business enterprise and the annoyance and discomfort arising therefrom, while vexatious, are but incidents of life in a crowded manufacturing city. Under the evidence in this case there could be no recovery under the first and second counts of the declaration.

There is evidence which shows that the water tower built on the top of the ice plant was used for cooling the water afterwards to be put in cans, to be made into ice. The water-was carried up to the tower by pipes and then permitted to flow over a series of slats so as to break up the water and cool it. ' The four sides of the tower were constructed of slats set in on a slant so that the air could blow freely into and through the tower to cool the water, and when the wind was in the southwest or west it would blow the water or mist from this tower over onto the appellees’ residence so that the appellees had to keep their windows and doors next to the plant closed both night and day at times to prevent the water from blowing in and spoiling the interior of the house. The sleeping porches on the south side of appellees’ residence had to be abandoned for that purpose whenever the wind was such that it carried the mist against appellees’ Residence; that Mrs. Lindblom had to" wipe up the floors 3 or 4 feet into the bedroom; that sometimes the whole south side of the building was spotted with fine mist and that clothes on the sleeping porch were wet and damp.

Appellees were the owners of the premises in question and were jointly in possession. The evidence shows that appellees jointly suffered a material, physical injury to their possession and right of occupancy and enjoyment of the premises for which an action will lie. Wylie v. Elwood, 134 Ill. 281.

It is claimed that the mist is carried upon appellees ’ premises by an act of nature and therefore appellant is not responsible. This is no defense.. In almost every action of tort the basis of the action is some act or failure to act on the part of the one person which action or failure to act, by reason of the operation of the laws of nature, results in injury to the person or property of another. If A .on his own premises by means of a hose should continuously project into the air a stream of water which by reason of nature’s law of gravitation falls upon and into the sleeping porch of B, depriving B of the use thereof, no one would question B’s right of action against A. The fact that in the present case the water is projected from a tower instead of a hose and is only occasionally and not continuously carried upon appellees’ premises does not affect the liability but only the amount of damages.

Appellant’s action in causing the water to fall upon the slats is the proximate cause of the mist being cast upon the winds, where the natural consequence was a material physical invasion of appellees’ rights which deprived appellees temporarily of their joint right to the use, occupancy and enjoyment of a portion of their premises, as charged in the third count of the declaration.

The evidence in the case, necessitated a judgment in favor of appellees, and as the judgment is only nominal, appellant could not have been injured by any errors upon the trial, and the judgment therefore is affirmed.

Affirmed.


text:
    Harry H. Orman, Appellant, v. Sam Bargas, Appellee.
    Gen. No. 6,746.
    Forcible entry and detainer, § 20

      —right of contract purchaser to sue. One who with another has entered into a contract for the purchase of certain premises of a third person which contract does not provide for their possession prior to their receipt of the deed, and. the deed to which has not been delivered cannot, as sole plaintiff, maintain forcible entry and detainer against a tenant under an existing lease for the possession of the premises, even though the contract provides that the purchaser shall be entitled to the rent from the time of the delivery of the deed, in such suit he sues as the assignee of the right to collect the rent but not of the reversion.
    Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 9, 1920.
    Kenworthy, Dietz, Shallberg, Harper & Sinnett, for appellant.
    J. B. & J. L. Oakleaf, for appellee.

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

   Mr. Justice Heard

delivered the opinion of the court.

April 19, 1916, J. W. Stewart being the owner of certain premises in East Moline, Bock Island county, entered into a contract with Peter Clemence and Peter Cristis to rent to them a building to be thereafter erected on a certain portion of such premises for a term from June 1, 1916, to June 1, 1919, at $15 per month rent, payable monthly in advance, with an option of an additional term of 2 years at $20 per month. The lease also contained an agreement that if Stewart sold the property and. the purchaser did not desire to continue the lease, the tenants would consent to the cancellation of the lease on receipt of 60 days’ notice from Stewart and upon the- payment by Stewart to the tenants of $15 per month, in one payment, for the unexpired term of the lease.

March 31, 1918, Stewart entered into a written contract to sell the premises to Harry H. Orman, the appellant, and Lulu B. Orman, the purchase price to be paid in instalments. This contract provided that it was made subject to an existing lease, the purchaser to be entitled to the rents, if any, from the time of the delivery of the deed. No deed was at any time delivered under the contract. March 21, 1918, J. W. Stewart assigned the lease to Harry H. Orman.

September 24, 1918, Clemenee and Cristis in writing assigned their interest in the lease to the appellee, Sam Bargas, and in the writing guaranteed the performance by Sam Bargas of all the covenants in the lease on their part to be performed. The lease provided that the tenant could not assign it except on the written consent of the first party. It contained a provision that it should bind the executors, administrators, heirs and assigns of the respective parties thereto. Stewart did not consent to the assignment to Bargas, but appellant did on the express provision that Clemenee and Cristis should remain liable for the prompt payment of the rent and performance of the covenants of the lease on their part to be performed.

March 28,1919, appellant served a written notice on appellee to vacate the premises in 60 days and at the same time tendered to appellee $31,50. A few days thereafter appellant offered appellee $50, but did not tender the same to him.

Appellee on May 5,1919, served on Harry H. Orman and Lulu B. Orman and on May 7, 1919, on Stewart, a notice of his election to avail himself of the option contained in the lease for an extension of the time to June 1, 1920, at the rental of $20 per month.

On June 2, 1919, which was more than 60 days after the notice given by appellant to appellee, appellant brought suit in forcible detainer against appellee before a justice of the peace. The case was appealed to the circuit court, where a jury was waived and the case was tried before the court and judgment rendered in favor of appellee, from which judgment the present appeal is prosecuted.

Many questions are argued by appellant and appellee which we do not deem it necessary to consider.

It does not appear from the evidence that the Or-mans have completed their payments to Stewart or received from him a deed to the premises. The contract does not provide for their possession prior to their receipt of the deed, and, even if it had, the reversion would be in Harry H. Orman and Lulu B. Orman and not in appellee alone and he could not by reason of the contract maintain a suit for possession of the premises as the sole plaintiff.

Appellant obviously sues only as the assignee of the landlord. According to the holding of this court in Bordereaux v. Walker, 85 Ill. App. 86, the assignment was an assignment of the right to collect the rent only and not an assignment of the right of reversion. The reversion belonged to Stewart and was not assigned to appellant.

Appellant not having the right to the reversion cannot maintain an action for the possession of the premises and the judgment of the circuit court is therefore affirmed.

Affirmed.


text:
    Ethel A. Wilkinson, Administratrix, Appellant, v. Edward Nowers, Appellee.
    Gen. No. 6,760.
    1. Executors and administrators, § 615

      —right to petition for 'removal of administrator * de bonis non. One who is indebted to the estate has not such interest as to entitle him to petition the court for the removal of the administrator de bonis non.

    2. Executors and administrators, § 48*—power to remove. While a court has the power to set aside, of its own motion, letters of administration granted by it, the power is not arbitrary, but can only be exercised when good cause therefor is shown, by the record.
    3. Executors and administrators, § 616*—power to appoint administrator de bonis non after estate declared administered. Even though the court has declared an estate fully administered, such order will not prevent the subsequent appointment of an administrator de bonis non on the petition of persons interested if, in fact, the estate had not been fully administered.
    4. Executors and administrators, § 34*—duty of court as to approval of appointment by clerk in vacation. Chapter 25, Rev. St. sec. 23 (J. & A. If 2148) giving the clerks of county courts authority to grant letters testamentary or of administration in vacation, subject to the approval or disapproval of the court at its next regular term, does not confer upon the court an arbitrary or even a discretionary power as to approving or disapproving such appointments by the clerk, but it is mandatory upon the court to approve the appointment if the petition therefor is regular on its face and no cause for disapproval is shown.
    5. Executors and administrators, § 616*—order in which entitled to administration de bonis non. The general rule is that persons are entitled to administration de bonis non in the same order as they would have been entitled to an original grant in case of intestacy or to letters with the will annexed in case of a will.
    Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded with directions.
    Opinion filed March 9, 1920.
    Rehearing denied April 6, 1920.

      Harry E. Brown, for appellant.
    Henry Waterman, for appellee.

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

   Mr. Justice Heard

delivered the opinion of the court.

Lyman J. Wilkinson died September 30, 1905, and in and by his last will and testament nominated as the executor thereof T. H. Chesley, who was then county judge of Henry county. The will was duly probated in the circuit court of Henry county and Chesley appointed by the circuit court as executor. He acted in that capacity until his death. His widow and executrix filed a report and was discharged and thereupon Willis L. Wilkinson was appointed administrator de bonis non, with the will annexed, of the estate of Lyman J. Wilkinson.

Willis L. Wilkinson and George T. Wilkinson, a resident of the State of Colorado, were the only heirs at law of Lyman J. Wilkinson. August 30, 1907, Willis L. Wilkinson, as such administrator, filed a report in the circuit court of Henry county, a portion of which report was as follows: “That he has paid out all moneys that have come into his hands as such administrator, that all claims against said estate of which he ■has any knowledge have been paid; that the court costs have been paid and that all the property of which he has any knowledge belonging to said Lyman J. Wilkinson, deceased, has been accounted for, with the exception of one note, dated September 9, A. D. 1901, for the sum of $409.75, bearing 7 per cent interest after date, due in four (4) months after its date and payable to the Farmer’s National Bank of Cambridge, Ill., and signed by one Edward Nowers, upon which there is a credit of interest paid to March 13, 1902, and $103 applied on the principal March 13,1902.

“Tour petitioner respectfully requests that the court order such claim to be filed in this court for the benefit of such of the heirs of said decedent, as will sue .for and recover the same as provided for by section 82 of the Revised Statutes of Illinois, for the year 1905.”

He asked that the report be approved and that he and his bondsmen be relieved of all further liability in connection with the estate. No facts were stated in the report and no showing made to the court to bring the Nowers note within section 83 of chapter 3 (J. & A. ¶ 133) and no reason is assigned for asking to have the claim filed in court for the benefit of such of the heirs who would sue for the same. No reason is assigned why the administrator de bonis non did not bring suit upon the note and complete the administration of the estate.

September 2, 1907, the following was entered of record in the circuit court: “And now said report is approved by the court and Willis L. Wilkinson, administrator, and his bondsmen discharged and the following order entered.” Then follows an order ordering Willis L. Wilkinson, administrator, etc., to turn over to the clerk of the circuit court the Nowers note and claim for the benefit of such of the heirs as will sue for the same. There was no formal order declaring the estate settled.

Willis L. Wilkinson died testate leaving Ethel A. Wilkinson, his widow, Mabel E. Withrow, his daughter, and Elon G-. Wilkinson, his son, as his only heirs at law, legatees and devisees.

August 20, 1912, Ethel A. Wilkinson and Mabel E. Withrow filed a petition in the office of the clerk of the circuit court setting forth most of the above facts and that the Nowers note had never been paid and that it was a good and valid claim against Nowers in favor of the estate of Lyman J. Wilkinson, and praying letters of administration de bonis non ivith the will annexed be issued to Ethel A. Wilkinson in the matter of the estate of deceased not already administered.

The clerk of the circuit court by virtue of the authority given in section 206 of chapter 37 and section 23 of chapter 25, Revised Statutes of Illinois (J. & A. ¶¶ 3242, 2148), allowed the petition, and on Ethel A. Wilkinson giving bond in $500 issued to her letters as such administratrix, bearing date August 20, 1912. She took the required oath and entered upon the duties of her office. On March 5, 1915, Edward Nowers, the maker of the note heretofore mentioned, filed his motion in the circuit court to revoke the letters of administration issued to Ethel A. Wilkinson, setting up in his motion which is not verified, the former proceedings in the estate, and that he “is the defendant in a suit instituted by the said Ethel A. Wilkinson as administratrix de bonis non, as aforesaid, wherein and whereby she as such administratrix seeks to recover for the benefit of said estate on said alleged note and claim for reimbursement as the property of said estate and that said suit is still pending and undisposed of in this court.”

On July 14, 1916, the Nowers motion to revoke the letters of administration was denied by the circuit court.

The granting of letters to Ethel A. Wilkinson was neither approved nor disapproved by the court at the next regular term after granting the same, and on July 10, 1916, she filed a motion asking to have her appointment made absolute and unqualified. July 17, 1916, Nowers filed a motion for the modification of the order of July 14, 1916, and for a rehearing upon his motion to revoke the letters of administration. February 14, 1919, Ethel A. Wilkinson filed her motion to strike from the files the Nowers motion of July 14, 1916, on the ground that Nowers was not an heir, legatee, devisee or creditor of the estate of Lyman J. Wilkinson.

March 5, 1919, the various motions coming on to be heard, the court overruled the motion to strike the Nowers motion from the files and entered an order re-voting the letters of administration, etc., of Ethel A. Wilkinson, and from this order she appealed to this court.

Appellant claims that Nowers had not sufficient interest in the estate of Lyman J. Wilkinson to petition for the removal of the administratrix, etc., and that therefore his motion and petition should have been stricken from the files. So far as we are advised, this precise question has not been directly passed upon by a court of appeal in this state. In Tuttle v. Chicago Title & Trust Co., 172 Ill. App. 532, the question was raised and the court said that while they were of the opinion that the error was probably well assigned, they preferred to rest their opinion on other grounds.

The Iowa statute provides that a petition for the removal of administrators may be filed by “any person interested in the estate.” In Chicago, B. & Q. Ry. Co. v. Gould, 64 Iowa 343, 20 N. W. 464, a plaintiff, against whom suit had been brought by the administrator, petitioned for revocation of the letters of administration. In passing upon the question the court said: “Plaintiff has no interest in the property of the estate, either as an heir, creditor or otherwise. The interest contemplated by the statute is a right to benefits from the estate which prompts the person to act for preserving its assets, increasing their value, and directing their disposition and appropriation. Surely, the statute does not, in this provision, contemplate one whose interests would be promoted in the destruction of the assets. His interest would be in conflict with the rights of the estate and its beneficiaries. He could not be ‘interested in the estate’ in the sense of the expression as it is used in the statute just cited. The plaintiff has an interest to defeat the claim which the estate holds against it. This interest prompts it to resist the claim, and, if it is successful, it will destroy what is now regarded as defendant’s property. It is absurd to say that plaintiff is ‘interested in the estate’ in any other way than as a litigant is interested to defeat the claim of his adversary. Its interest is of the character of that which an enemy feels who seeks the destruction of his foe. * * * We reach the conclusion that plaintiff has no such interest in the estate as, under the statute, will authorize him to move for revocation of the letters of administration issued to defendant. This conclusion is supported by the following cases: Swan v. Picquet, 3 Pick. (Mass.) 443; White v. Spaulding, 50 Mich. 22, 14 N. W. 684; Augusta & S. Ry. Co. v. Peacock, 56 Ga. 146; Penniman v. French, 2 Mass. 140; Labar v. Nichols, 23 Mich. 310.” To the same effect is Hardy’s Estate v. Minneapolis & St. L. Ry. Co., 35 Minn. 193, 28 N. W. 219; Missouri Pac. Ry. Co. v. Jay’s Estate, 53 Neb. 747, 74 N. W. 259, and Missouri Pac. R. Co. v. Bradley, 51 Neb. 596.

We are of the opinion that Nowers had not sufficient interest in the estate of Lyman J. Wilkinson to entitle him to petition the court for the removal of the administrator de bonis non, etc., and that the motion to strike his petition from the files should have been sustained.

It is contended by appellee that the court has the power on its own motion to set aside letters of administration granted by it. This is undoubtedly true, but this is not an arbitrary power, but can only be exercised when good cause for such action is shown by the record.

In Munroe v. People, 102 Ill. 406, the court held that the probate court, in the absence of statutory authority, has no power to remove an administrator or revoke letters of administration after the administrator has accepted and qualified and entered upon his duties; that until some one of the causes mentioned in the statute is placed before the court for action, the court has no power to act at all in this regard—that is, it has no jurisdiction to act.

In Clark v. Patterson, 214 Ill. 533, the court approved the case of Munroe v. People, supra, and on page 544 said: “The legislature has not deemed it wise to confer on the courts unrestricted power to revoke letters of executorship, but has expressly declared the grounds on which such revocation may be ordered. It is only when one or more of such statutory causes are properly brought before the court for judicial action thereon that the courts have jurisdiction to revoke the letters of administration or letters testamentary.”

It is contended by appellee that the estate of Lyman J. Wilkinson had been fully administered and that neither the clerk nor the court had power to appoint an administrator de bonis non, etc.

In Stose v. People, 25 Ill. 600, it was said: “Whatever goods and chattels of the first estate remain in specie, or can be traced and distinguished, the administrator de bonis non has a right to recover.” In 18 Cyc. 106, it is said.: “Administration de bonis non may be granted * * * where the predecessor had reported debts as desperate which prove collectible.”

In the present case the Nowers note was not reported by the former administrator as desperate and no showing of any kind as required by statute was made to the court, authorizing' the court to order it turned over to the clerk under the statute. The order approving the report of Willis L. Wilkinson, administrator, etc., did not declare the estate of Lyman J. Wilkinson settled and technically the estate never was settled. Section 111 of chapter 3, Ill. Rev. St. (J. & A. ¶ 161) provides “that no final settlement shall be made and approved by tbe court, unless the heirs of the decedent have been notified thereof, in such manner as the court may direct.” The court did not direct what notice should be given the heirs. It is true that in bis report Willis L. Wilkinson says “that he presents herewith the waiver and consent of said George T. Wilkinson for the approval of this report and the discharge of your petitioner and bondsmen,” but the court order does not find that such consent and waiver were filed, and so far as this record shows no waiver or consent was in fact filed. Even had the court declared the estate fully administered, such order would not prevént the appointment of an administratrix de bonis non if, in fact, the estate had not been fully administered. Starr v. Willoughby, 218 Ill. 485; Atherton v. Hughes, 249 Ill. 317.

The claim against Nowers was an asset of the estate and Willis L. Wilkinson, had the same been collected during administration during his lifetime, would have been entitled to one-half thereof as his distributive share, and after his death his interest in his father’s estate descended to petitioners, his representatives. Petitioners had an interest in the proceeds of the Nowers note. They could not bring suit against Nowers as heirs of Lyman J. Wilkinson because they were not heirs of Lyman J. Wilkinson. His only heirs were his sons, Willis and George.

The right of petitioners to their distributive share in the proceeds of this note would be entirely lost unless an administratrix de bonis non, etc., be appointed.

It is claimed by appellant that the court should have approved the appointment of appellant as administratrix.

Section 23, ch. 25, Rev. St. (J. & A. ¶ 2148) is as follows: “The clerks of the several county courts of this State are authorized, upon filing petition and giving proper bond to grant letters testamentary or of administration, and citations in vacation, subject to the approval or disapproval of the court at its next regular term. ’ ’

The court’s power of approval or disapproval is not an arbitrary power. It is not even a discretionary power. If the petition for appointment be regular on its face and no cause for disapproval be shown to the court, the court must approve the appointment. This duty is mandatory and not discretionary. O’Rear v. Crum, 135 Ill. 299. The general rule is that persons are entitled to administration de bonis non in the same order as they would have been entitled to an original grant in case of intestacy or to letters with the will annexed in case there is a will. 18 Cyc. 106.

Q-eorge T. Wilkinson, being a resident of Colorado, was disqualified from acting as administrator and petitioners had the right of nomination. The appointment of Ethel A. Wilkinson as administratrix, etc., should have been approved by the court.

The cause is reversed and remanded to the circuit court of Henry county with directions to vacate the order of March 5,1919, and to strike from the files the motion of Edward Nowers filed March 5, 1919, and to approve the appointment of Ethel A. Wilkinson as administrator de bonis non with the will annexed of Lyman J. Wilkinson.

Reversed and remanded ivith directions.


author: Mr. Presiding Justice Niehaus

text:
    The People of the State of Illinois, Defendant in Error, v. Frank Barney, Plaintiff in Error.
    Gen. No. 6,703.
    1. Criminal law, § 55

      —right to change of venue. The right to a change of venue being statutory, the one seeking it must bring himself within the requirements of the statute.
    2. Criminal law, § 62*—notice of application for change of venue. What notice to the State’s Attorney of an application for a change of venue is reasonable is left to the discretion of the judge to whom the application is made, and this discretion will not be interfered with unless abused.
    3. Criminal law, § 62*—effect of failure to give notice of appli

      cation for change of venue. Failure to give any notice to the State’s Attorney of the application for a change of venue is sufficient legal ground for refusing the application.
    4. Criminal law, § 396

      —when Appellate Oourt without jurisdiction to pass on excessiveness of penalty prescribed by statute. The Appellate Court has not jurisdiction to pass upon a contention that the punishment fixed hy a statute as out of proportion to the nature of the offense, the determination of a constitutional question being involved.
    5. Criminal law, § 388*—sentence on more than one count. While the trial court may, in its discretion, cumulate the punishment fixed for the conviction on different counts of an indictment, the punishment on each particular count and with reference to such count must be specified, and it must also he specified that the punishment which defendant shall suffer with reference to the particular count shall commence at the expiration of the punishment under the last preceding count; it is not proper to sentence defendant in gross for a certain accumulated number of days.
    6. Criminal law, § 109*—judicial notice of practicability of street work during winter months. It is a matter of common knowledge that very little street work is feasible or practicable on the streets of towns or cities or on the public roads in the winter season, or for about 4 months of the year.
    7. Criminal law, § 387*—when sentence erroneous. It is error for the court, in sentencing to work upon the streets and roads one found guilty of selling intoxicating liquor in anti-saloon territory under forty-nine counts of the indictment, to provide that he shall be confined in the county jail when not at work on such streets and roads, in view of the fact that there are about 4 months of the year when such work is not feasible and such authority to inflict double punishment not being warranted hy the provisions of Hurd’s Rev. St. ch. 38, secs. 168a, 168c (J. & A. Ifjf 3794, 3796).
    8. Criminal law, § 383*—when statute not construed as providing for double punishment. In enacting Hurd’s Rev. St. ch. 38, secs. 168a, 168c (J. & A. HIT 3794, 3796), it was not the purpose of the General Assembly to empower the court to inflict double punishment by compelling a defendant to work upon the streets and alleys of cities or towns and also suffer punishment by imprisonment in the county jail, but that the court should administer either one punishment or the other.
    9. Convicts—custody. Hurd’s Rev. St. ch. 38, secs. 168a, 168c (J. & A. jfli 3794, 3796), contemplates that a defendant who is to be punished by being compelled to work upon the streets and alleys of a city or town shall be placed in custody and under the control of a street commissioner or marshal, or of some other particular official, who is to have legal charge of him for the street work or road work he is compelled to do, or that he may be placed in the custody and under control of the sheriff for work to be done for the county.
    Error to the County Court of Boone county; the Hon. William C. De Wolf, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded with directions.
    Opinion filed April 21, 1920.
    B. A., W. D. and A. J. Knight, for plaintiff in error.
    F. A. Oakley, for defendant in error.

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

      See Illinois Ncies Disest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number,

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

The plaintiff in error, Frank Barney, was indicted in the circuit court of Boone county for selling intoxicating liquor in anti-saloon territory. The indictment contains fifty counts. The fiftieth count is a nuisance count. The indictment was certified to the county court for trial, and the plaintiff in error pleaded not guilty to the indictment and waived a trial by jury, and agreed to have the issues tried by the court. The cause was thereupon set for trial for March 31, 1919, and on that day was called for trial. The plaintiff in error then asked for a continuance until 2 o’clock in the afternoon, and this motion was denied, but the court postponed the hearing until 11 o’clock a. m. Five minutes before 11 a. m., plaintiff in error filed a petition' for change of venue, alleging as a ground therefor that the judge of the county court, before whom the ca.se was pending, was prejudiced. The change of venue was denied, and thereupon the case proceeded to trial and the court heard the evidence, and found the plaintiff in error guilty on all the counts of the indictment including the nuisance count, and sentenced the plaintiff in error to hard labor on the streets and alleys of any city, town or public road of the county, for a period of 30 days consecutively on each of the first forty-nine counts, and to pay a fine of $100 on each of said forty-nine counts, the sentence to labor on the streets and alleys of any city, town or the public roads of the county on each of the first forty-nine counts to follow consecutively on each and every one of said counts at the expiration of the sentence on the next preceding count. And the court also ordered as a part of the sentence that the plaintiff in error be required to labor on the streets and alleys of any city, town or on the public roads of the county for 50 days on the fiftieth count, and that the sentence to hard labor on the streets and alleys of any city, town or public road of the county on said fiftieth count beginning at the expiration of the term imposed for the forty-ninth count, making a total sentence to labor of 1,520 consecutive days, and a total fine of $5,000. The court also ordered that he pay the costs of the suit. And as a part of the sentence to labor on the streets and alleys of any city or town or on the public roads of the county, if said fines and costs were not paid, that the plaintiff in error work out the same, on the streets and alleys of any city or town, or on the public roads of the county, at the rate of $1.50 per day, until such fine and costs were paid. The court also ordered as a part of the sentence that when the plaintiff in error was not at labor, as in the senténce directed, he should be confined in the county jail of the county. It is estimated that if the plaintiff in error be unable to pay his fine and therefore compelled to work it out, his imprisonment will extend over a period of 14 years. From this judgment of conviction and sentence, a writ of error is now prosecuted.

A question is raised concerning the action of the court in refusing to grant the change of venue, and it is contended that it was error to refuse to grant it. The right to a change of venue is provided by the statute, under certain conditions. It being a statutory matter, the party insisting on the change of venue must bring himself within the statutory requirements. Hutson v. Wood, 263 Ill. 376. One of the requirements of the statute is that reasonable notice be given the State’s Attorney of the application for change of venue. What is a reasonable notice is left to the discretion of the judge to whom the application is made in the particular case, and the exercise of this discretion will not be interfered with unless it is abused. Glos v. Garrett, 219 Ill. 208. In this casej however, the record does not disclose that any notice at all was given the State’s Attorney of the application, which of itself was sufficient legal ground for a denial of the change of venue.

An objection to the sentence is made that the punishment, which is cumulated, is excessive. The record shows that the plaintiff in error was convicted on each count for a third offense, and the punishment fixed by the court is the minimum punishment provided by the statute for a conviction for a third offense. The contention is therefore in effect that the punishment, which is fixed by the statute, is out of proportion to the nature of the offense and involves the determination of a constitutional question, which this court is unable to adjudicate for lack of jurisdiction.

We are of opinion, however, that the sentence does not meet the requirements of the law in other respects. While the court may, in its discretion in a case of this kind, cumulate the punishment fixed for the conviction on the different counts of an indictment, it is necessary in that regard to specify the punishment on each particular count and with reference to such count; and, to further specify, that such punishment which the defendant shall suffer with reference to the particular count shall commence at the expiration of the punishment under the last preceding count. It is not proper to sentence the defendant in gross for a certain accumulated number of days. In People v. Elliott, 272 Ill. 592, the Supreme Court clearly defines the proper method of cumulating punishment under different counts of an indictment for a misdemeanor of which the defendant stands convicted. In that case the sentence imposed was substantially like the one in the present case, except that it was for imprisonment in the county jail instead of for work upon the highways, and the total number of days fixed in that case was 720 instead of 1,520 cumulated in this case. The court-states that: “The sentence as to imprisonment * * * was that he should be confined in the county jail of Macon county for a period of 10 days on each of the first seventy counts, and a period of 20 days on the last or the seventy-first count, and that the jail sentences should run consecutively, making a total of 720 days in jail”; and holds, that the provision that the sentences shall run successively is equivalent to providing that they shall run consecutively, but that the rule established in this State is, “that where a defendant is sentenced upon different indictments or different counts of the same indictment, the correct method of entering judgment is not for the total time in gross, but for a specified time under each count, separately, the time under the second count to commence when the first ends, and so on to the last.” It is apparent that this rule was not followed in the present case, and the sentence in that respect needs correction. And the sentence is also erroneous in other respects. In addition to sentencing the plaintiff in error to work upon the streets and alleys of any city, town or public roads of the county, the court sentenced him to confinement in the county jail when not at work upon the streets and alleys. It is a matter of common knowledge that very little street work is feasible or practicable on the streets of towns or cities or on public roads in the winter season, that is for a period of about 4 months of each year. It is evident, therefore, that this jail sentence may involve an additional period of imprisonment of many months. Section 168a of chapter 38 of Hurd’s Revised Statutes (J. & A. ¶ 3794) provides that hereafter any person convicted in any court of record of any misdemeanor under the criminal code of this 'State, the punishment of which in whole or in part now is, or hereafter may be, imprisonment in the county jail, the court in which such conviction is had may, in its discretion, sentence such person to labor in the workhouse of any city, town or county where the conviction is had, or on the streets and alleys of any city, town or on the public roads of the county, under any street commissioner, city marshal or person having charge of the workhouse, streets, or public roads of said city, town or county, or to such labor under the direction of the sheriff as the county may provide for; and section 168c of the same chapter (J. & A. ¶ 3796) provides that any keeper of any workhouse, street commissioner, city marshal or supervisor of roads, or person in whose keeping such convicted person shall be placed, may provide for the safe-keeping of such person, during the time he may be in his charge, bv providing balls and chains, and attaching them to such person at any time, and may, if deemed necessary to prevent the escape of such prisoner, confine him in the county jail during the night; and at any other time said prisoner cannot' be kept at work. It appears to be obvious that it was not the purpose of the General Assembly in enacting the foregoing sections of the statute to empower the court to inflict double punishment by compelling a defendant to work upon the streets and alleys of cities or towns and also suffer punishment by imprisonment in the county jail, but that the court should administer either one punishment or the other. The matter of the confinement of the plaintiff in error in the comity jail for safe-keeping, while not at work, is left by the statute to the ministerial discretion, of the official into whose custody and under whose control the, defendant is placed by the sentence. Under the general terms of this sentence, it cannot be determined which one of the different city or town officials shall have charge and control of the plaintiff in error, or who may have charge of him first; or, if one shall have taken charge of him, for what length of time he may hold him, or which one of the other officials he shall turn him over to, after that, nor for how long. We are of opinion that the statute contemplates that a defendant who is to be punished by being compelled to work upon the streets and alleys of a city or. town shall be placed in custody and under the control of a street commissioner or marshal, or of some other particular official who is to have legal charge of him for the street work or road work he is compelled to do, or that he be placed in the custody and under control of the sheriff for work to be done for the county.

For the reasons stated, the judgment and sentence of the court is reversed and the cause is remanded to the county court, with leave to the State ’s Attorney to move for, and with direction to the court to enter, a judgment and sentence in accordance with the views herein expressed.

Reversed and remanded with directions.


text:
    Elva M. Boulter, Appellee, v. Joliet National Bank, Appellant.
    Gen. No. 6,722.
    1. Bills and notes, § 307

      —when payment operates to release collateral. Where a note of which one is a joint maker is paid by the making of a cash payment and the giving of a new note of her comaker for the balance and the note is marked paid is canceled and returned by the payee, to the comaker who delivers it to plaintiff, the new note, not being signed by plaintiff, creates an individual obligation of the comaker which is a different indebtedness, in character and legal effect, from the original note and which is not the obligation of plaintiff, and the payee of the original note cannot, as against plaintiff and without her consent, retain, as collateral to secure the payment of such new note, collateral which she had deposited with the payee to secure the payment of the original note.
    2. Bills and notes, § 378*—when presumption of r payment arises. The presumption that the indebtedness for which a note was given was paid is raised by the act of the payee in stamping the note paid, canceling it and returning it to the maker.
    3. Bills and notes, § 196*—when extension of time of payment releases joint maker. A joint maker of a note is released by the act of the payee in extending the time of payment without her knowledge or consent, and is entitled to the return of collateral deposited by her in the payee’s hands to secure the payment of the note.
    4. Tboveb and convebsion, § 3*—when refusal to release collateral constitutes conversion. After the release of a comaker, the refusal of the payee bank to return to her, upon her demand, collateral which had been deposited by her with the bank to secure the payment of the note, constitutes a legal conversion of such collateral by the bank.
    5. Tboveb and conversion, § 39*—when evidence establishes conversion in refusing to release collateral. In trover by a joint maker of a note against the payee bank to recover the value of stock deposited as collateral for a note which had been canceled and returned to her comaker, who had executed a new note for the balance due on the original, it is not error to instruct the jury that if they believed from the evidence that the cancellation of the original note and the taking of a new note signed by the other maker was intended by the bank as a release and discharge of plaintiff from her obligation on the original note, they should find the issues in her favor.
    6. Interest, § 26

      —what interest may be recovered on conversion. In trover to recover the value of stock deposited as collateral, which defendant refused to return upon demand after plaintiff had been released, but sold, plaintiff is entitled to interest from the date of such refusal, which was the time of the conversion, not from the date the stock was sold.
    7. Appeal and erbob, § 1220*—when party cannot complain of error in instruction. One is in no position to complain on appeal of an error in an instruction which was in his favor.
    Appeal from the County Court of Will county; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed April 21, 1920.
    Garnsey, Wood & Lennon, for appellant.
    Bulkley, More & Tallmadge and Murphy & Anderson, for appellee.

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.-

In this case the appellee, Elva M. Boulter, brought suit in the county court of Will county in trover to recover the value of five shares of the capital stock of Gerlach-Ba-rklow Company, which it was alleged she owned, and the appellant, Joliet National Bank, converted to its own use. The declaration which was filed in the case consisted of one count and contained the usual averments in trover, to which the appellant filed a general issue. There was a trial by jury which resulted in a verdict in favor of the appellee for $550 damages. The court entered judgment on the verdict and this appeal is prosecuted from the judgment.

The evidence shows that John Boulter, the father of the appellee, a commercial reporter for Bradstreet & Company, in the course of his business frequently visited Joliet, and often„ called at the appellant bank on business, and otherwise, and had a checking account there. On November 23,1914, he obtained a loan from the bank of $300 upon a promissory note for that amount, payable 3 months after date, signed by himself and his daughter, the appellee. As collateral security for the payment of this note, the appellee also assigned to the bank her five shares of stock in the G-erlach-Barkiow Company. The note was not paid when it became due, and was carried by the bank until February 23, 1916. Boulter then took up the note by paying the bank $100 and giving his individual note for $200, payable 3 months after date, and the five shares of stock in question were then retained by the bank as collateral security for the payment of this note; and the bank canceled the $300 note, marked it paid and turned it over to John Boulter, who returned it to the appellee. The appellee .testified that when she received the canceled note from her father, he told her that he had paid it, and that she then asked her father for her certificate of stock which had been pledged, and that he told her he had left it in the bank for safe-keeping, but promised to return it to her, but never did so. Boulter after-wards disappeared. Appellee also testified that the first information she had that the bank was holding her stock as security for other notes of her father was contained in the letter requesting a return of her stock, in which letter the bank informed her that it was holding the stock as collateral for an indebtedness of her father amounting to $404, and money which the bank had furnished him. On receipt of this letter from the bank, appellee again wrote a letter to the bank demanding a return of the stock certificate, for the return of which she had in her previous letter already sent to the bank the necessary postage and registration fee. Other demands were made by her on the bank for a return of the stock. All the demands however were refused, the bank claiming the right to hold the stock as security for the remaining indebtedness of John Boulter. About March 21 she received notice from the bank that the stock would be sold at public auction on the 21st day of April, 1917, to pay the indebtedness referred to. On April 30 following, she was notified that the stock had been sold pursuant to the notice given her, and $500 had been realized therefor; that of the amount realized, $304.03 had been applied to pay the notes of her father, which the bank held, and that the bank was holding the balance of $195.97 subject to her order.

It is claimed by the appellant bank that it could legally hold the stock in question as collateral security for the payment of all of Boulter’s indebtedness, but at least for the payment of the $200 note, because this indebtedness was an unpaid balance of the indebtedness for which she pledged her stock. It is apparent, however, that the original indebtedness, ■namely, the $300 note, was a joint indebtedness of appellee and her father. The $200 note created an individual indebtedness of her father for which appellee had not in any way obligated herself, the note having been executed by her father on his own responsibility and of his own accord, and therefore constituted his individual obligation. The $200 note, therefore, was a different indebtedness in character and legal effect. The question to be determined, and which appears to be decisive of the rights of the parties, is whether the $300 note, for which the bank received the stock from appellee as collateral security, was really paid and canceled. Did the bank receive the $100 in cash, and Boulter’s individual $200 note in payment and discharge of the $300 note? All the evidence in the case seems to indicate that it did. The fact'alone that the bank stamped the note as paid, canceled it and returned it to the makers as paid, raised the presumption that the indebtedness for which the note was given was paid. Walker v. Douglas, 70 Ill. 445; Sutphen v. Cushman, 35 Ill. 186. And there is no evidence in the record which can be considered as in conflict with this presumption. If the $300 note for which appellee pledged her stock as collateral was paid, then appellee was entitled to a return of the stock at the time the note was paid. But even on the assumption that the $200 note given by Boulter must be considered as an unpaid part of the original indebtedness for which appellee pledged her stock, and that the time of payment was merely extended thereon, the acceptance by the. bank of this $200 note from Boulter, extending the time of payment, released the appellee and entitled her to a return of her stock. Her obligation on the $300 note was that of surety, and Boulter was the principal debtor. The extension of the time of payment of the indebtedness, which was without her knowledge or consent, therefore, operated as a discharge of her obligation as surety for the payment of the indebtedness. Parlin & Orendorff Co. v. Hutson, 198 Ill. 389; Home Nat. Bank v. Waterman’s Estate, 134 Ill. 461; Dodgson v. Henderson, 113 Ill. 360; Crossman v. Wohlleben, 90 Ill. 537; Myers v. First Nat. Bank of Fairbury, 78 Ill. 257; Danforth v. Semple, 73 Ill. 170; Montague v. Mitchell, 28 Ill. 481; Kennedy v. Evans, 31 Ill. 258. And the rule is well settled that when a third person pledges his property as security for the payment of a debt or obligation of another, such property also stands in the position of a surety of the debtor; and hence, any change in the contract of suretyship which will discharge a surety will.also release and discharge the property, which is held as collateral. Price v. Dime Sav. Bank, 124 Ill. 317; Highland Park State Bank v. Sheahen, 149 Ill. App. 229; Merchants & Farmers State Bank v. Sheridan, 156 Ill. App. 30. We are of opinion, therefore, that the appellee’s stock was released as collateral security when the bank accepted the $100 in cash and the $200 note from Boulter in payment and discharge of the note signed by the appellee, and canceled the same, and that she was entitled to a return of the stock in question at the time she made a demand therefor on January 28, 1917; and that the refusal of the bank to return the stock constituted a legal conversion of the same by the bank.

Appellant contends that the giving of the second instruction for appellee was error. By this instruction the jury were told that if they believed from the evidence that the cancellation of the original, or $300 note, signed by the appellee, and the taking of a new note signed by John Boulter was intended by the bank as a release and discharge of the appellee from her obligation of the original note, then they should find the issues in her favor. Under section 118 of the Negotiable Instruments Act (J. & A. ¶ 7758), the obligation incurred by the signing of a promissory note is discharged by the intentional cancellation of such note by the holder. The only obligation which the evidence shows that the appellee assumed was the signing of the $300 note; and it was for the payment of this obligation that she pledged her stock. If, therefore, it was the intention of the bank, by canceling the $300 note and taking a new note from John Boulter, to release and discharge the appellee from her obligation on the $300 note, such release and discharge would necessarily result as a matter of law to release her stock which she pledged for such obligation, and the appellee was entitled to have the same returned to her on demand, and by refusing to return it the appellant became liable. And it was proper under these circumstances to submit to the jury the question of fact whether the transaction embodied in the instruction was intended to be a release and discharge of appellee’s obligation. The instruction relative to the amount of interest which the appellee was entitled to was erroneous in assuming that the sale was the conversion of the stock in question, and that appellee was entitled to interest from the date of sale. But appellant was not injured by this error. The conversion of the stock actually occurred several months prior to the date of sale, and appellee was legally entitled to interest from the prior date, and to more interest than this instruction allowed her. The error injured the appellee and not the appellant, and the appellant is therefore not in position to complain. The judgment is affirmed.

Judgment affirmed.