text:
    Minnie Parker et al., Appellees, v. Lewis Wainwright et al., Appellants.
    Gen. No. 4,910.
    1. Will—what not ground for setting aside. The fact that improper relations may have existed between a testator and a beneficiary is no ground for setting aside a will.
    2. Conduct of counsel—when ground for reversal. In a will contest, the conduct of counsel in repeatedly insinuating by his questions and in urging in his argument that a beneficiary was a dissolute person, where no sufficient foundation for such insinuations and argument appears, is so prejudicial as to require the award of a new trial.
    Bill to contest will. Appeal from the Circuit Court of Jo Daviess County; the Hon. Oscae E. Heabd, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    Hobson & Campbell, for appellants.
    Sheean & Sheean and Thomas H. Hobson, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

John Hileman died December 28, 1905, in Jo Daviess county, leaving a will executed December 9, 1905, which was duly admitted to probate. He was in his eighty-eighth year when he died, and he left an estate of about $5,000, all of which was personalty. He left a son and three daughters. He bequeathed small sums of money to two- of his daughters and to his son and to a son-in-law and to two of his grandchildren, who, however, were called “nephew” and “niece” in the will. The total of the sums so bequeathed was $510. He ordered the erection of a suitable monument over the graves of himself and his deceased wife at an expense of not over $500 and gave the rest of his property to Lewis Wainwright and his wife Hilda, share and share alike. The heirs at law and the legatees, other than the Wainwrights, filed a bill to contest the validity of said will on two grounds; first, that at the time said will was executed the testator was mentally incapable of making a will; second, that the Wainwrights used many fraudulent practices and resorted to falsehood and misrepresentation to induce testator to execute said will, and that in executing the same he was under improper restraint and undue influence from the arts and fraudulent practices of the Wainwrights, said alleged arts and fraudulent practices being set out in detail in the bill. The bill was answered by the Wainwrights and by the executor, and upon a jury trial there was a verdict that the instrument in question was not the will of said John Hileman, and a decree to that effect was entered, from which this appeal is prosecuted.

The testator’s wife died in 1884. Thereafter he had several different women to act as his housekeeper and part of the time a relative. While one of these women Avas acting as his housekeeper a young woman named Anne Beverly came there to live. Afterwards the housekeeper left and Anne Beverly became the housekeeper, and he lived alone with her in two or three different places. During this time she married one Brenneman, and they removed to Kansas, and John Hileman lived in Kansas with them until Brenneman died. John Hileman then left that household and returned to Jo Daviess county, and Avent to live Avith Mr. and Mrs. Wainwright in Warren, and there lived and was cared for till his death.

In 1899 his children filed a petition in the County Court to have a conservator of his estate appointed. He resisted the application. His estate at that time consisted of a note for $6,000 secured by a real estate mortgage. A compromise was effected between Hileman and his children, by which Hileman transferred said note and mortgage to a trustee, and the trustee was to keep the principal of the fund invested in interest-bearing securities, and from the interest pay the taxes, and spend the rest of the interest upon Hileman’s support during the rest of his life, with a provision that, if Hileman should think he needed any portion of the principal, he might petition the County Court for an order to have some of the principal expended in his behalf; and in consideration thereof the children were to dismiss their petition for the appointment of a conservator. It was provided in said agreement that the settlement should not prevent the children from contesting any will that Hileman might make. The children, by another contract between themselves, agreed that if their father made a will distributing his estate unequally between his children, they would nevertheless share the property in equal parts. That controversy seems to have been brought on because Hileman persisted in living in the same house with Anne Beverly or Mrs. Brenneman, and would not go to live with Mrs. Johnson, the daughter whose name was entirely omitted from the will.

Counsel for appellees in opening the case to the jury called Mrs. Brenneman a disreputable woman and a harlot, and told the jury that John Hileman had lived with her in open and notorious improper relations, and that it was an outrage for him to give his property to absolute strangers. In the cross-examination of appellants’ witnesses, and sometimes in the cross-examination of witnesses who did not know Mrs. Brenneman, they were asked by appellees’ counsel if they knew of his having had improper relations with Mrs. Brenneman; if the witness knew that Hileman had an insane desire towards Mrs. Brenneman; if he knew what kind of a character Anne Beverly or Mrs. Brenneman was; if Hileman and Anne Beverly were living in an open and notorious state of adultery; and the like. These questions were put by appellees’ counsel to many witnesses, and many such questions were asked of witnesses who knew nothing about her, either before or after her marriage to Brenneman. In the closing argument to the jury appellees’ counsel called Mrs. Brenneman a harlot and a prostitute. This attack had very little foundation in the testimony. Hileman must have been over seventy-five years old when Anne Beverly first lived in his household. Our attention is not called to any proof in the record that she was a dissolute woman. The only fact in evidence subjecting her to criticism is that she lived alone with Hileman in a house, or a part of the time alone with Hileman in a part of a house occupied also by another family. There was proof also that she and Hileman had been seen riding together and sitting upon the porch of the house and talking together. There was no proof that any one had ever witnessed any improper conduct between them. She married during the time she was keeping house for Hileman, which makes it very improbable that their relations were improper. If their relations were meretricious, no charge of that kind was made in the bill, and immorality affords no ground for setting aside a will. Moreover, he left Mrs. Brenneman in Kansas when her husband died, and he returned to this State and lived here between two and three years thereafter before his death. There is no proof that he ever afterwards was under the influence of Mrs. Brenneman at all, or ever afterwards saw her, or that she desired him to make a will in favor of the Wainwrights, or knew that he had done so. If the fact that he lived in the same house alone with Mrs. Brenneman before her marriage has any tendency to show a mental incapacity to make a will, then appellees were entitled to that fact. Beyond that this evidence and these remarks to the jury-had no proper place in this suit. The court repeatedly sustained objections to this line of argument and evidence, but it was persisted in and carried to a very great length. It is obvious that the jury were made to imagine that Hileman had had improper relations with Mrs. Brenneman, and that condition was used to prejudice the jury very greatly against this will. We conclude that the course pursued by appellees’ counsel on this subject during the trial deprived appellants of a fair trial of the true issues in the case, and that they are therefore entitled to a new trial.

The evidence upon the subject of mental capacity was conflicting, but there seems to be a clear preponderance in support of the will. There was practically no evidence of any undue influence exercised on the testator by the Wainwrights, except that, though paid for his support by the trustee, they probably exercised greater kindness towards the testator than money could have bought. If the certificate of evidence had plainly shown that it contained all the evidence inti'oduced, it would be a serious question whether the court should have given any instructions for appellees on the subject of undue influence; but the usual statement that this was all the evidence heard at the trial was omitted from the certificate, and while it probably does contain all the evidence, that fact can only be established by a process of reasoning or inference, and we therefore do not discuss these instructions.

It is said that this will is an outrage upon his heirs at law, and the case seems to have been ai’gued to the jury on that basis by appellees. That position is unsound, if the testator was mentally capable of making a will and did not act under the undue influence alleged. The owner of property has a right to will the same to such persons as he sees fit. It is his property, and not the propex-ty of his heirs at law. Moreover*, these children, in the testator’s extreme old age, practically deprived him of the use of the principal of his estate, or subjected him to the necessity of appealing to the County Court whenever he thought his actual necessities required more than the income. The proof shows that he became embittered towards his children because of this course of conduct. That result was natural. The Wainwrights and their children treated him kindly and affectionately and performed for him many kind offices in his last years and in his last and lingering illness. This kindness was not undue influence, and the testator, if mentally capable of making a will, had a right to reward them.

The decree is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Henrietta Vanderpoel v. William D. Cravens. Henrietta Vanderpoel v. H. Martin et al.
    Gen. Nos. 4,918 and 4,919.
    1. Equity practice—when dismissal of hill of complaint improper. A bill in equity may be dismissed upon the call of the docket for want of prosecution, but there is no authority for a dismissal thereof for want of equity after answer filed without a hearing upon the merits.
    2. Injunction—when damages upon dissolution should not he awarded. Damages upon dissolution of an injunction should not be awarded in favor of those who have been convicted of fraud or were adjudged to have been in privity therewith in a former proceeding for injunction involving the same subject-matter.
    Bill in equity. Appeal from the Circuit Court of Lake County; the Hon. Albert H. Frost, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed March 11, 1908.
    Hay & Brown and Mullen & Hoy, for appellant.
    Edward L. Hpton and Frank H. ¡Novak, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

Henrietta Vanderpoel filed a bill in equity in the Circuit Court of Lake county against William D. Cravens, Caroline Both, Joseph Husak, H. Martin, William O. Heinroth and the sheriff of Lake county, and upon said bill obtained an injunction. Cravens filed a sworn plea to certain parts of the bill, and demurred to certain other parts, and he answered the rest of the bill. Heinroth, Husak and Martin filed separate answers, F. H. Novak signing the answer of Martin as his solicitor, and attaching his own affidavit thereto. The other defendants did not answer. By agreement an order was entered that the demurrer and a motion to dissolve the injunction might be heard in vacation and the proper orders entered as of the preceding term. There was such a hearing in vacation and an order was entered dissolving the injunction and dismissing the bill for want of equity, but it was not entered as of the preceding term, but as a vacation decree; and there had been no stipulation that a final decree could be rendered in vacation. The same order gave leave to the defendants to file suggestions of damages, and such suggestions were filed by Cravens, separately, and by Husak and Martin, jointly. At the next term, with another judge presiding, it was held that so much of the vacation order as dismissed the bill for want of equity was void for lack of authority to so decree in vacation, and the application for damages was denied. Thereafter, at another term, on the call of the docket, the bill was dismissed for want of equity pursuant to said vacation order, and without a hearing upon the merits. It was 1hen ordered that the previous suggestions of damages should stand, and afterwards proofs were heard, and $600 was allowed Cravens for his solicitor’s fees, and $300 was allowed Husak and' Martin for their solicitor’s fees, in procuring the dissolution of the injunction. General Humber 4918 above; entitled is an appeal by complainant from the order as to Cravens, and General Humber 4919 is an appeal by hc-r from the order as to Martin and Husak. The appeals have been consolidated in this court.

The record before us is certified to be a complete record, and it contains no justification for the dismissal of the bill for want of equity. The bill appeared to state grounds for equitable relief upon its face. A bill may be dismissed on the call of the docket for want of prosecution, but we know of no authority for the dismissal thereof for want of equity, after answer filed, without a hearing upon the merits. It is argued that the suggestions of damages were not filed in time, and that relief thereunder is lost. But we prefer to pass to the meritorious question arising on this appeal.

Section 12 of chapter 69 of the Revised Statutes, entitled “Injunctions,” authorizes the court upon the dissolution of an injunction to “hear evidence and assess such damages as the nature of the case may require and to equity appertain, to the party damnified by such injunction.” Appellant contends that it is not equitable that damages should be awarded under the circumstances of this case. The hill in this case was filed by appellant as a judgment creditor of the Winthrop Harbor and Dock Company. Prior to the dissolution of the injunction in this case a final decree had been rendered by the Circuit Court of Lake county in another suit in equity by the judgment creditors of the same company, wherein Arthur E. Burnham and Henrietta Vanderpoel and others were complainants, and William D. Cravens, Caroline Roth, Joseph Husak, H. Martin, William C. Heinroth, E. H. [Novak and the sheriff of Lake county and others were defendants. That decree was reviewed and affirmed by this court, and the facts stated at great length, in Roth v. Burnham, 126 Ill. App., 222. Upon the hearing of the suggestion of damages in the case now before this court, that decree was offered in evidence. As all the parties to this suit were parties to that suit, that decree is conclusive upon all the parties here as to the matters thereby established. The bill in that case related to the same general subject-matter and contained like charges of fraud as the bill in this case, and that decree found that the same general fraudulent practices against the judgment creditors of the Winthrop Harbor and Dock Company, including Henrietta Vanderpoel, the appellant here, had been committed by the parties defendant to the present bill, except Cravens, and by others. The relief there asked and granted was in the main like the relief sought by the present bill. The defendants there and the defendants here, except Cravens, had been finally enjoined in that suit before the injunction was dissolved in the present suit. We refer to our opinion in Eoth v. Burnham, supra, for a detailed account of the fraudulent practices established against Husak, Martin and others. We are of opinion that, whether the dissolution of the injunction and the dismissal of the bill in the present case was or was not free from error, nevertheless it does not “to equity appertain” that persons who have been convicted of the fraud established against Husak and Martin by a decree binding upon all the parties to this suit, should be awarded damages for the dissolution of the injunction in the present case. Even if the second injunction attempted against them failed, yet the first injunction having been established and made final, and they having been therein convicted of fraud, they ought not to be awarded damages by a court of equity. The allowance to Husak and Martin should therefore be reversed.

It is claimed in behalf of Cravens that the decree in the Burnham case found him not guilty of fraud, and therefore he is entitled to have damages awarded him for the dissolution of the injunction in this case. That decree found that Cravens had for several years sustained close, friendly and confidential relations to Heinroth, who was one of the principal conspirators against the judgment creditors of said Winthrop Harbor and Dock Company; that Cravens for a long time occupied the same office with Heinroth, and acted as his confidential clerk and bookkeeper; that as such bookkeeper he kept a business book wherein certain items were entered by him of one of the transactions by which said frauds were perpetrated, and that he afterwards altered said entry by the addition of words with the intention and design of giving such item in the books the appearance of belonging to Cravens instead of Heinroth; that some of the instruments by which the fraud was effected were taken out in his name or assigned to him, and afterwards by him to another of the conspirators; and that in these transactions he was lending the use of his name to Heinroth. That decree did also find that he was not a party to the conspiracy or fraud, and that no relief should be granted against him, but in the same connection he agreed in open court to claim no costs or damages by reason of any matter, cause or thing mentioned in that proceeding. In other words, he was treated by that decree as a confidential tool through whom in part the fraud had been accomplished, but was held not responsible therefor, the evident consideration for so holding being that he should waive any claim for damages in that case. We are of opinion that a person who has held such a position towards a transaction established to be fraudulent on the part of those to whom he has lent his name and whom he has confidentially assisted, ought not to be awarded any damages in this case because of the dissolution of the injunction against him. The recitals in the decree in the Burnham case would no doubt have justified a decree against Cravens, and the fact that he was let o£E from the charges of fraud in that case on the ground that he was a tool, and that his principal should be held responsible rather than he, if lie would waive all claim to damages, does not put him in such a position in this case that it is equitable that he should be awarded a large sum of money in damages against one of the complainants in that case who obtained that decree finding these facts against him. It is not equitable that the allowance to Cravens should stand.

The orders awarding damages to Cravens and to Husak and Martin for solicitor’s fees for procuring a dissolution of the injunction are therefore reversed.

Reversed.


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    H. M. Kelly, Appellant, v. George Armstrong, Appellee.
    Gen. No. 4,922.
    Landlord and tenant—effect of hold-over. If a tenant for a term of one year holds over after the expiration of his term he becomes either a trespasser or a tenant, at the option of the landlord. A tenant has no election and his mere continuance in possession after the term makes him a tenant for another year, if the landlord chooses, and this is true even if the tenant intends not to stay.
    Action commenced before justice of the peace. Appeal from the Circuit Court of La Salle County; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed March 11, 1908.
    Geoege II. Haight, for appellant.
    Thomas H. IIasicins, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellant sued appellee to recover for loss of rent after appellee, his tenant, removed from the premises and before another tenant was obtained, and for a diminution in rent thereafter. On a trial in the Circuit Court on an appeal from the justice, a jury was waived. There was a finding and a judgment for defendant, from which plaintiff prosecutes this appeal.

Appellant leased the premises to appellee by a written instrument signed by both parties. The term was from June 1, 1904, to May 31, 1905, and the rental was $25 per month, payable on the first day of each month in .advance. The rights of the parties depend upon the correspondence between them in 1905. On May 8th appellant -wrote asking appellee whether he wished to rent the premises another year, saying that he understood he intended to move, but if appellee wanted it he should have the first call. Appellant received no reply to that letter. On May 15th he wrote again, repeating the inquiry and telling appellee that if he did not hear from him within the next two days he -would assume that appellee did not want to rent it, and would relet it. On May 16th appellee wrote appellant that he had thought but little of moving but did not care to lease the premises for a year, as he did not know what a year might bring forth. On May 23d appellant wrote appellee acknowledging receipt of the letter of the 16th and informing appellee that if he desired to occupy the premises after his lease terminated it must be for a term of one year. In that letter appellant said that if appellee remained in possession of the premises after the termination of the lease “I shall assume that you are holding the premises as tenant for a further year from May 31, 1905, to May 31, 1906, under the terms of the lease that you are now occupying the premises under.” Appellant therein also said that he was satisfied with appellee as a tenant and would be pleased to have him occupy the premises another year, but that he could not permit the time for renting to go by and then let appellee vacate whenever he pleased, and that he wrote appellee this letter that he might be fully advised. On May 29th, which was two days before the end of the term, appellee wrote appellant that he was going to move out of the house within thirty days, as soon as he found a house that suited him, and that if appellant had a party that wished the .house he could rent it. About that time appellant went to California and was absent two or three weeks. On his return he found a letter from appellee awaiting him, dated June 21, inclosing the rent for June and saying that the house would be vacated by July first. To this appellant replied under date of June 22nd, acknowledging receipt of appellee’s letter of June 21st and telling appellee at considerable length that he should hold him as a tenant of the premises for one year from June 1, 1905, and that he would do his best to rent the premises to some one else and cut down the loss, but should look to him to make it good. On June 29th appellee wrote to appellant inclosing the key. On June 30th appellant wrote, acknowledging receipt of the key and saying he accepted it under the condition that he should re-rent the premises as soon and for as much as he could, and hold appellee liable for the loss. In August appellant wrote appellee, calling for the rent for the month of July and saying that he would secure a tenant as soon as he could. Afterwards appellant rented the premises to another party for $22.50 per month, beginning October 21, 1905. On December 29, 1905, he began this suit.

It is well settled in this State that a tenant for the term of one year, who holds over after the expiration of his term, becomes either a trespasser or a tenant, at the option of the landlord; that the tenant has no election, but his mere continuance in possession after the term makes him a tenant for another year if the landlord chooses, and that this is true even if the tenant intends not to stay. Clinton Wire Cloth Co. v. Gardner, 99 Ill., 151; Keegan v. Kinnare, 123 Ill., 280; Weber v. Powers, 213 Ill., 370; Directors Chicago Theological Seminary v. Chicago Veneer Co., 94 Ill. App., 492. The statement by appellant in the letter of May 15th that, if he did not hear from appellee within the next two days, he would assume that appellee did not want to rent it and would re-let it, does not prevent the application of this rule to this case. Appellant meant thereby that he would assume that appellee would move out at the end of the term. No suggestion had been made at that time that appellee would hold over for a time, and vacate when it suited his pleasure. As soon as appellee conveyed that information to appellant the latter notified appellee in positive terms that if he stayed beyond his term he would be held as tenant for another year.

Appellee is liable to appellant for the rent at $25 per month from July 1st to October 21st, three months and two-thirds, which amounts to $91.66. He is also liable to a loss of $2.50 per month from October 21 to December 29, 1905, when this suit was begun, or for two months, which amounts to $5. Appellant cannot recover in this suit for the loss after the suit was begun. Appellee proved an offset of $15. This leaves a balance due appellant of $81.66, for which judgment will be entered in this court.

Judgment reversed, and judgment for appellant against appellee for $81.66 and costs.

Reversed and judgment here.


text:
    Mike Grubic, Appellee, v. Western Tube Company, Appellant.
    Gen. No. 4,925.

      Verdict—when not set aside as against the evidence. A verdict will not be disturbed on review as against the weight of the evidence where a verdict under the conflicting evidence appearing in the case would have been justified either way.
    Action in case for personal injuries. Appeal from the Circuit Court of Henry County; the Hon. William H. Gest, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Chables K. Ladd, for appellant.
    Andebson & Andbews, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

This is an appeal by defendant below from a judgment for $375, which Mike Grubic recovered against his employer, Western Tube Company, appellant, for injuries which appellee received from stepping into a pit of hot water while at "work. The only point argued is that the court should have directed a verdict for appellant at the close of all the evidence. That only raises the question whether there was evidence fairly tending to make a case for appellee.

This "was the third night appellee had worked for appellant. On that night his foreman caused him and others to carry a new furnace door to the furnace room, in a building in which appellee had not previously worked. Others hung the door, and appellee was then directed to adjust the weights by which the door was in part suspended. There was a pit of water under dr near where the weights were to be hung. When the ashes and cinders were raked off of the grates of that furnace, they were raked into this water, and they made the water very hot. While appellee was adjusting the weights, he stepped one foot into the pit and was severely scalded. The declaration alleged that appellee had not been about the furnace before; that he did not know of the existence of the pit of hot water, and ivas not informed thereof nor of its dangers; that appellant knew of the pit and its dangers and directed him to work there without warning him; that the lights in the furnace room were so hung that the pit was in a shadow, and that smoke from the furnace also dimmed the view; that his employer took him from a less hazardous place and put him at this work without warning him of the dangers of this place •; and it charged appellant with negligence in these respects, and averred that appellee was using due care for his own safety.

Appellee’s proof was to the effect that he was a Croatian and could not speak or understand English; that the foreman spoke English and could not speak appellee’s language, and gave his orders either by motions or through another servant who spoke both languages; that appellee did not know of the existence of the pit, and did not see it and was not warned of it; that the water was made black by the cinders and ashes, and the brick floor was black with the cinders and ashes upon it, so that the floor and the water looked alike; that the pit was in the shadow; and that appellant had shown that the pit was known to it to he dangerous by causing it to be guarded by a shield placed around it; and the evidence warrants an inference that the shield was not in place that night. Appellant’s proof was to the effect that the room was light and the water in plain sight, and that the foreman told the interpreter to warn appellee to look out for the water. The interpreter, a witness for appellant, vacillated in his testimony, and had made statements off the stand not in harmony with his testimony. He testified that the foreman told him to tell the fellows to watch for the water and not slip in the hole, and that he told that to them all in appellee’s language, but that he did not know whether they heard him; and that the foreman did not tell him that the water was hot hut only to watch the water. The proof showed that there was much noise and confusion in the furnace room.

The proof was sharply conflicting. That introduced by appellee supported the declaration. A verdict either way upon the facts, approved by the trial judge, should not be disturbed here. It would have been error to direct a verdict for appellant. The damages awarded are moderate for the injuries sustained.

The judgment is therefore affirmed.

Affirmed.


text:
    Reuben W. Coon, Appellant, v. F. H. Holtz et al., Appellees.
    Gen. No. 4,931.
    1. Equity practice—power to require dill of particulars. Upon reference of an equitable cause tó a master to state an account between the parties, the court or master may require the parties to file bills of particulars or written classified statements of disputed items, in order that the issues upon the amount may be narrowed down; but until the case has reached that stage, it is not within the power of the court to require the filing of a bill of particulars.
    2. Equity pleading—character of allegations required. A demurrer should be sustained to a bill of complaint, the material allegations of which are vague and uncertain.
    3. Jurisdiction—tohen court will not taTce. Courts of chancery will not take jurisdiction of a cause where it appears from the face of the bill that jurisdiction of the subject-matter thereof has already been properly assumed by another court of this State.
    Bill of interpleader. Appeal from the Circuit Court of Lake County; the Hon. R W. Wright, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    Lauder, King & Gage, for appellant.
    Orvis & Edwards, for appellee; Paul MacGuffin, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

On January 21, 1907, appellant filed in the Circuit Court of Lake county a bill of interpleader against F. H. Holtz, Lucius J. M. Malmin, Frank G. Delamater, The Security Loan & Building Association of Chicago and the A. B. Beck Lumber Company of Chicago. The bill stated that on July 6, 1903, appellant received from Hiram Coombs a sum of money due on a note signed by Coombs payable to S. Delamater and before then transferred to F. C. Delamater; that there were then pending certain garnishment suits concerning said note which were afterwards dismissed; that appellant paid to parties claiming the same and expended on the order and request of said parties a considerable sum of money, leaving in his hands $1,340.12; that Holtz claims said money; that in March, 1905, a garnishment suit was begun in the Superior Court of Cook county against Holtz and appellant by H. Bose Delamater and F. C. Delamater for the use of the A. B. Beck Lumber Company, and another like suit in the Circuit Court of Cook county by F. C. Delamater for the use of the Security Loan & Building Association, charging that Holtz and appellant or one of them had in their possession money belonging to F. C. Delamater; that on March 15, 1905, the A. R. Beck Lumber Company filed a creditor’s bill in the Circuit Court of Cook county against Holtz and appellant, also seeking to recover money or assets belonging to F. C. Delamater; that in each of said cases Malmin is the solicitor and attorney for the plaintiffs and complainant, and that he claims to be the owner of the judgments upon which said garnishment suits are based and the assignee thereof, and claims said money as assets of F. C. Delamater; that appellant has repeatedly and vainly urged Malmin to bring said creditor’s bill to a hearing; that Holtz and Malmin threaten to. begin various suits against appellant for the purpose of harassing him; that he has always been ready to pay said $1,340.12 to the person lawfully entitled to receive the some, and offers to bring it into court. Appellant made proper allegations of the absence of collusion on his part. He prayed that he might pay said sum into court, and that the parties might be required to interplead and adjust their demands in reference thereto. Holtz and Malmin demurred to the bill. Said demurrer was overruled. Holtz and Malmin then entered their motion for a bill of particulars, and appellant was ruled to file a bill of particulars by next morning and, failing to comply with that order, his bill of complaint was dismissed. Complainant appeals from that decree, and assigns that the court erred in ruling him to file a bill of particulars and in dismissing the bill. Holtz has assigned cross-errors upon the action of the court in overruling the demurrer to the bill.

Upon a reference of an equitable case to a master to state an account between the parties, the court or master may require the parties to file bills of particulars or written classified statements of disputed items, in order that the issues upon the account may be narrowed down. Remsen v. Remsen, 2 Johns. Chy., 495, 501; Patterson v. Johnson, 113 Ill., 559, 580. But this case had not reached that stage. It was held in Cornell v. Bostwick, Paige Chy., 160, that the defendant in a suit in chancery is not entitled to a bill of particulars before answering. The authorities relied upon by appellees are actions at law and criminal causes, and are not applicable. We are of opinion that the court should not have dismissed the bill for failure to file a bill of particulars before answering. We also conclude that the cross-errors are well assigned.

First. The allegations of the bill upon material matters are exceedingly vague and indefinite, and the reasons which no doubt induced the court to grant a bill of particulars should have caused the court to sustain the demurrer. Appellant does not state in the bill how much money he received, how much money he paid out, to whom he paid it, how much money he expended nor on whose order and request. Apparently the purpose of the bill was to preclude an inquiry into these matters, and to permit the parties to litigate only concerning the sum which he admitted he still had in his hands. We are of opinion he should have been required to state the facts.

Second. The bill showed that there had been pending against him in the Circuit Court of Cook county for about one year and nine months a creditor’s bill, wherein a decree was sought against him concerning this same money. Under the allegations of the bill before us the Circuit Court of Cook county has jurisdiction of appellant and of the fund which he holds. His excuse that the solicitor in that case fails to bring it to trial is invalid. If there is improper delay in that respect he can apply to that court to set the case down for hearing. It may be that for his complete protection it is essential that H. R. Delamater, F. C. Delamater, the Security Loan and Building Association and Malmin should also be defendants in that suit in equity in the Circuit Court of Cook county. If they are not defendants there, appellee can take such steps in that cause as will compel the complainant there to bring before that court all parties who can have any interest in the fund. This appears to be an attempt by appellant to escape the jurisdiction of the Circuit Court of Cook county in said creditor’s bill. That court having first acquired jurisdiction of appellant and of the fund, it is entitled to retain it till the decree. The comity of courts requires the Circuit Court of Lake county not to take jurisdiction. Of course, if appellant has not been served with summons in that case and has not appeared therein, and if no jurisdiction has been obtained over him or over the fund by the Circuit Court of Cook county in said creditor’s suit, then a very different question arises. But as appellant avers that he has repeatedly urged Malmin to bring that cause to trial, the just inference against the pleader is that he has been subjected to the jurisdiction of that court.

The decree of the court below is therefore reversed on errors and cross-errors. Each party will pay the costs made by such party in this court. The cause is remanded to the court below for such further pfoceedings as to equity appertain, not inconsistent with the opinion of this court.

Reversed on errors and cross-errors and remanded.


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    Henry Springer, Appellee, v. Mary S. Baker et al., Appellants.
    Gen. No. 4,947.

      Instructions—when not subject to review. Rulings upon instructions are not subject to review where all the instructions given are not set forth in full in the abstract.
    Action commenced before justice of the peace. Appeal from the Circuit Court of La Salle County; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    I. I. Hanna, for appellant.
    Gleim & Oolwell, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellee sued appellants, who are husband and wife, before a justice to recover wages claimed to be due appellee for services as a farm hand. The case was appealed to the Circuit Court and there tried by a jury, and appellee had a verdict and a judgment for $80, from which defendants below appealed.

Appellee worked upon the farm occupied by appellants under two or three different contracts of employment, the last of which was made a few weeks before he quit work. There were disputed questions of fact as to the terms of the employment or employments prior to the last one, and also as to various items of credit claimed by the appellants. We see no reason to disturb the conclusion of the jury and the trial judge upon these disputed questions of fact.

It is contended that there is no evidence that Mrs. Baker was liable; that the farm was worked by Mr. Baker only; that the verdict and judgment against her are unsupported by any evidence; and that in this joint action against both defendants in assumpsit there could be no recovery against Mr. Baker alone. An examination of the evidence in the record, not fully abstracted, shows positive testimony that the contract was made by both defendants jointly and that most of the negotiations were conducted by Mrs. Baker. There is some evidence to corroborate this. The testimony of appellants denies that Mrs. Baker made the contract. We would not be authorized to disturb the conclusion of the jury upon this disputed question of fact.

By the last contract of employment aj>pellee agreed to work for appellants for five months at $25 per month, and he quit the employment in a few weeks. It is contended that he left without any justification, and therefore could not recover any wages earned under that last employment. The rupture arose over an attempt between the appellants (especially Mrs. Baker) and appellee to settle upon the amount due him for all his sendees to that time. Mrs. Baker figured the time he had worked at considerably less than appellee did, and produced various charges against him which he was unwilling to allow, and reached a balance due him of about $50, which he would not accept. That it was not the true amount due him seems to be settled by the verdiet of the jury. Thereupon he said that if she would not pay him more than that he would quit. He testified that Mrs. Baker then told him that if he did not like that he could quit, and he thereupon did so. This was not disputed, and it authorized the jury to find that the contract was terminated with the consent of appellants, as Mrs. Baker was acting not only for herself hut also for her husband.

It is argued that the court erred in rulings upon instructions. The abstract sets out in full a part of the given and the refused instructions, but omits.five instructions given for appellee and six instructions given for appellants. Where error in giving or refusing instructions is alleged on appeal or writ of error, such assignments of error will only be considered when all the instructions given are set out in full in the abstract. The reason is that the omitted instructions may supply that wdierein the instructions set out are insufficient, or it might appear from all the instructions that the party complaining requested instructions based upon the same principle or rule of larv, in which case he could not be heard to complain of the embodiment of that rule or principle in the instructions requested by his adversary. Thompson v. People, 192 Ill., 79; T., M. & N. Ry. Co. v. Haws, 194 Ill., 92; P., C., C. & St. L. Ry. Co. v. Smith, 207 Ill., 486. We are not required to search the record to ascertain whether error has been committed.

The judgment is therefore affirmed.

Affirmed.


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    Rose Ellen Haley, Appellee, v. Supreme Court of Honor, Appellant.
    Gen. No. 4,951.
    1. Pleading—when duplicity established. Beld, that the pleas interposed in this cause to an action upon a benefit certificate were subject to the charge of duplicity.
    2. Pleading—when inartificial in praying judgment in bar of action. A plea which professes to answer the whole declaration and prays judgment in bar of the action is irregular where it contains no answer to the common counts.
    3. Fraternal benefit societies—what does not avoid certificate. A certificate will not be avoided by reason of a statement made by the applicant to a general question that he was not a “plow polisher,” when in answer to another question he made the statement that he was a laborer, and the society did not specifically seek to ascertain what kind of labor he performed.
    4. Fraternal benefit societies—when "by-laws not retroactive. Held, that the particular by-laws in question in this case adopted after the admission of the member, were not intended to be retroactive in their operation.
    5. Fraternal benefit societies—when by-laws not given retroactive operation. The by-laws of a fraternal benefit society are not given a retroactive operation unless the intention that they shall so operate clearly appears.
    6. Interest—when need not be claimed in declaration. Interest need not be made the basis of a claim in a declaration where the allowance of such interest is authorized by statute.
    Assumpsit. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Statement by the Court. In this action, brought by Rose Ellen Haley against the Supreme Court of Honor, the declaration charged that the defendant was a fraternal beneficiary society organized under the laws of Illinois for the purpose of furnishing life indemnity for pecuniary benefits to the -beneficiaries of deceased members, and that on December 19, 1899, defendant issued to Joseph L. Haley, plaintiff’s husband, a certificate of membership set out in said declaration, which provided among other things that, in case of his death while a member in good standing, $2,000 should be paid to his wife, Rose Ellen Haley; that Joseph L. Haley died Hay 10, 1905, while said certificate of membership was in full force and effect; that from the issuance of said certificate to the date of his death said Joseph L. Haley continued a member of said order in good standing and paid all fees, dues and assessments required by his certificate and the constitution, rules and by-laws of the order, and kept all legal conditions and requirements of the order; that after his death, plaintiff furnished to defendant proofs of death, as required by the rules of the order; that defendant, by the constitution, by-laws and rules and said certificate, undertook and agreed to pay plaintiff as his beneficiary in said certificate the sum of $2,000, and promised so to do, but, though often requested, failed and refused to make such payment. To this declaration the common counts were afterwards added. Defendant filed seven pleas, the first the general issue, and the others special pleas. A general and special demurrer to the special pleas was sustained. Defendant withdrew the general issue and elected to abide by the special pleas.. Defendant was defaulted for - want of a plea. Thereafter a jury was waived, though this was unnecessary, and the court heard the evidence and found for plaintiff and assessed her damages at $2,158. A motion in arrest of judgment was denied, plaintiff had judgment on the finding and defendant appeals.
    The second plea averred that the benefit certificate stated that said Joseph L. Haley (hereinafter called the insured) had been accepted as a member of the order on the faith of the warranties, statements and representations shown in his application for membership and that said certificate was issued upon condition that the insured shall comply with the constitution, laws, rules and regulations of the order and with the constitution and by-laws of the district courts in force or that may be in force hereafter, and that the statements made in the application are true and that, if said application shall be found in any respect untrue, said certificate shall be null and void and of no effect and all moneys which have been paid and all rights which have accrued under said contract shall be forfeited. The plea further averred that the insured executed an application for said certificate, which contained, among other things, the following statements, provisions and agreements, and set out among other things that the insured declared, answered and warranted that he was not now engaged in any of a large number of occupations named, among which was plow polisher, “or other like hazardous occupations,” and that the insured agreed that he would not hereafter, while h member of the order, engage in any of said occupations, “except at the same time recognizing the full force of the order’s law limiting or extinguishing its liability upon the certificate of any member engaging in such occupation”; that the insured agreed to conform in all respects to the constitution, laws and usages of the order, now in force or which may hereafter be adopted by the Supreme Court thereof, and that any untrue or fraudulent statement to the medical examiner or any concealment of facts intentional or otherwise in such application, should forfeit the rights of the insured and his beneficiaries to any and all benefits arising therefrom. The plea averred that the insured stated in his application that his occupation was a laborer; and that he fully understood the laws of the order and the restriction in its membership, and that part of the laws defining the restrictions upon its membership and which provided for the forfeiture of the indemnity for untrue statements, and understood that the laws of the order now in force or hereafter enacted became a part of the contract of indemnity, and understood and agreed that the order would not indemnify against death resulting from occupations prohibited by its laws. The plea further stated that at the time said application was made and said certificate was issued and from thence to July 1, 1900, said constitution and laws contained certain provisions set out in the plea. Among these were that persons to become members of the order must not be “engaged in any of the prohibited occupations hereinafter mentioned or any other hazardous or extra hazardous occupations.” Section two of said laws was headed “Occupations excluded” and stated that the persons engaged in the following occupations would not be admitted to membership, and then named various occupations (not, however, including “plow polisher,” “plow grinder,” “brass finisher,” “file finisher and grinder;” or “grinder in cutlery works”), “or other like hazardous occupations.” Said section two then provided that if, after having become a member of the order, he shall engage in any of the above named or like hazardous occupations, his certificate shall become for-felted and void, unless before entering upon any of the foregoing occupations, he files with the supreme recorder a written w-aiver of liability of this order upon his benefit certificate founded upon his death or permanent disability, either as the result of accident occurring in, or of disease directly traceable to, his employment in such prohibited occupation, the acceptance of such waiver to be subject to the approval of the board of directors. The plea averred that said section also provided that if he entered upon a prohibited occupation before filing such waiver, he might file such waiver at any time during the continuance in said employment, if accompanied by a certificate of sound bodily health. The plea then alleged that afterwards a certain other constitution and other laws were adopted by the supreme court of the order, which went into force July 1, 1900, and continued in force till July 1, 1903. They contained a section 63, entitled “Occupations prohibited,” which had similar provisions to those above described in section 2, except that it enlarged the list of prohibited occupations. It ended with the words “or other like hazardous occupations.” Said section, however, did not include “plow polisher,” “plow grinder,” “brass finisher,” “file finisher and grinder,” or “grinder in cutlery works.” Said plea further averred that afterwards certain other constitution, laws and provisions were enacted by the supreme court of the order, which went into effect December 7, 1904, and continued in force till the death of the insured; that in section 107 of said new constitution and laws, entitled “prohibited occupations,” were a large number of employments prohibited, including “file finishers and grinders,” “grinders in cutlery works,” and “plow finishers and grinders,” concerning which prohibited occupations there were similar provisions for waiver. The plea then averred that when said application and said certificate was issued the insured was not a laborer as stated and warranted by him, but was a plow polisher, which it Avas averred the insured kneAV Avas a different occupation from that of laborer; that insured thereafter during substantially the entire time between the date of said certificate and his death, and for four years just prior to his death, was engaged in the business of plow polisher, in violation of said policy and the statements, warranties and agreements of his application and the constitution, laws, by-laws and regulations of the order, and that he did not at any time file with the supreme recorder a written waiver of the liability of the order upon his certificate, and that by reason thereof this certificate was null and void, and the supposed rights of the plaintiff did not accrue to plaintiff, but were forfeited, and that plaintiff has no right of action.
    The abstract does not set out the remaining special pleas, except to say that in the third plea there was an averment that the insured was a “plow grinder” instead of a “plow polisher”; in the fourth plea that he was a “plow grinder,” and that that was an occupation of great hazard and of much greater hazard to health and life than that of laborer, and similar in hazard and danger to that of “plow polisher,” “brass finisher,” “file finisher and grinder,” “grinders in cutlery works,” and other occupations prohibited by the certificate, application and laws of the order; in the fifth plea that the insured was a “plow grinder,” an occupation different from that of laborer within the meaning of the constitution and laws of the order; in the sixth plea that these terms are within the meaning of the policy and application, and that the insured contracted disease and died from the effects of such prohibited employment; and that in the seventh plea the same averments are contained as in the sixth, except that the occupation of the insured is stated to be that of “plow polisher.”
    The demurrer was general and special. Among the special causes of demurrer assigned were that these pleas are double, setting out the supposed duplicity; that they are repugnant to each other, setting out the supposed repugnancy; that they do not allege that the statement of insured in his application that he was a laborer was fraudulently or falsely made; that they do not aver that the insured had any notice of any change in the constitution and laws of the order; that the statement in the application that the insured was not engaged in the occupation of “plow polisher” was mere surplus-age of representation, as that occupation was not then prohibited by the constitution or laws of the order, and that said application further contained the words in the same paragraph wherein it was stated that the applicant was not engaged in any of certain occupations, including plow polisher, as follows: “I will not hereafter while a member of this order engage in any of these occupations except at the same time recognizing the full force of the order’s law limiting or extinguishing its liability upon the certificate of any member engaging in such occupation”; that there was» no allegation that the constitution and laws of July 1, 1900, or of December 7, 1904, were legally adopted by the order or by its supreme court in conformity with the laws of the order; that the certificate does not allege that the insured agreed to be bound by any change in the constitution and laws enacted after the date of his application; and that said pleas are otherwise informal and insufficient.
    It is argued that the court erred in sustaining the demurrer to these pleas, and also in awarding interest on the face of the policy.
    William B. Risse and Searle. & Marshall, for appellant.
    Rudolph & Reynolds and S. R. Kenwortiiy, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

We are disposed to hold these pleas bad for duplicity. Each special plea seems to set up the following defenses: First, that the statement in the application that the insured was a laborer, when in fact he was a plow polisher, was a warranty and was a falsehood, and that because thereof the certificate never was valid; second, that the continuation of the insured in the employment of plow polisher after the issue of the certificate was a breach of the contract and invalidated the policy; and third, that the constitution and laws which went into force December 7, 1904, forbid plow polishers to be members and that as the insured had agreed to be bound by the laws subsequently enacted, he was bound by said enactment of December 7, 1904, and that, by continuing in the occupation of plow polisher after that date without filing a waiver as said new laws required, he broke his contract and the certificate then became void.

But we prefer to place our decision chiefly on other grounds. The statement by the insured that he was a laborer was true, for a plow polisher is also a laborer. The laws of the order in force when this certificate was issued, did not prohibit plow polishers from being members. This was not then a prohibited occupation. The occupations then prohibited by the laws of the order did not include any employment resembling that of plow polisher. The statement in the application that the applicant was not a plow polisher was not in the form of a question calling for a categorical answer or for any answer. The term “plow polisher” was included among a large number of other specified occupations, and the applicant’s only assent to the statement that he was not engaged in said occupations was by his signature at the end of the application. There is no averment that he wrote the words “plow polisher” or that his attention was called to these words further than is evidenced by the fact that he signed the application wherein that statement is contained. If the order desired to know more fully what kind of labor he did, it could have asked him to specify more fully at what kind of labor he was employed. This it did not do. It is not reasonable to suppose that the insured, while engaged in the occupation of plow polisher, took this certificate and thereafter paid dues and assessments thereunder for the rest of his life, with a knowledge that he had stated in his application that he was not a plow polisher, and that by reason of the contents of the application he had signed, the certificate was void from its issue, and that he forfeited to the order all dues and assessments paid thereon, and that said certificate and such payments would not in any way benefit either himself or his wife. We think this case is within the reasoning of Minnesota Mutual Life Ins. Co. v. Link, 230 Ill., 273, and that the statement in question was a mere representation.

This certificate was issued December 19, 1899. As already stated the laws of the order did not then prohibit plow polishers from becoming members. The averments of the declaration that the insured paid all dues and assessments from the issuing of the certificate to the date of his death are not controverted, and indeed the proofs at the hearing, not abstracted, show that the supreme recorder of the order stated to appellee’s attorney that the proofs of death were in proper form and properly filed, and that the insured was in good standing at the time of his death, and that the only ground for refusing payment of the certificate was that the insured had been in a prohibited occupation. Plow polishers were first placed in the prohibited list on December 7, 1904. The insured agreed to be bound by the laws of the order enacted after the issue of his certificate. If therefore it had afterwards passed a law providing that persons already members who should thereafter be engaged in certain occupations should forfeit their certificates, that would have bound the insured, if it was a valid law, of which we have grave doubts. But the new laws of this order, which went into force on December 7, 1904, so far as they are set up in the second plea, are not retroactive in their language. Section 106, entitled “Who may be admitted,” reads “Persons to become benefit members of this society must be * * * not engaged in any of the prohibited occupations hereinafter mentioned, or in any other hazardous occupation.” Section 107 of said new laws, entitled “Prohibited occupations,” reads, “Persons engaged in the following occcupations, or who shall engage therein occasionally for hire or otherwise, shall not be admitted to benefit membership in this society,” and this is followed by an enumeration of occupations which includes many not theretofore prohibited, and among them “plow polishers.” The words “shall not be admitted” are wholly prospective. Their natural meaning applies to the future only. There is no language in the new laws set out in the plea which would naturally apply to those who were already members of the order and who were engaged in occupations then for the first time prohibited. It is reasonable to suppose that if the order had intended that the prohibition of certain additional occupations should apply to those already members of the order, some words would have been used which would plainly give it a retrospective operation, and that some reasonable time would have been given old members engaged in occupations then newly prohibited in which to change their employments. Ko language of that kind is found in the new laws as pleaded. The general principle governing the construction of such laws of a beneficiary society is that they are prospective only in their operation, and relate only to contracts thereafter made, unless the intention to give the law retrospective operation and to apply it to existing certificates and contracts clearly appears, and that intention we assume must clearly appear from the new laws themselves. This rule of construction is laid down in Kaemmerer v. Kaemmerer, 231 Ill., 154; Moore v. Guaranty Fund Life Society, 178 Ill., 202; Voigt v. Kersten, 164 Ill., 314; and Benton v. Brotherhood of Railroad Brakemen, 146 Ill., 570. Under this rule of construction, the new law prohibiting the occupation of “plow polisher” was not intended to and did not apply to this prior beneficiary certificate and did not invalidate it. The plea therefore does not state a defense to the action.

The second plea is bad for another reason. It professes to answer the whole declaration and prays judgment in bar of the action, yet it contains no answer to the common counts, which were filed long before the pleas were filed, nor does it allege that plaintiff’s sole and only cause of action is upon the beneficiary certificate set forth in the first count of the declaration.

The other special pleas were equally defective. The demurrer was properly sustained.

It is urged that interest could not be recovered because the special count of the declaration did not declare for interest. Where interest is claimed by virtue of an express contract to pay for interest, no doubt the declaration should count upon the agreement to pay interest, but where interest is payable by virtue of the statute, and not by virtue of the contract we think it is not necessary to specify the interest in the declaration. Grand Lodge A. O. U. W. v. Bagley, 164 Ill., 340. Section 2 of the statute relating to interest allows interest at 5 per cent per annum for all moneys after they become due on any instrument in writing. This certificate was an instrument in writing, and the money was due before this suit was begun. The suit was started on September 5, 1905. Through an excess of caution, appellee only asked for and computed interest on the principal at 5 per cent per annum from October 1, 1905_, a date later than the date- of the commencement of this suit. Appellant’s brief states that the ad damnum in the declaration was $2,000, and its abstract of the declaration makes it so appear, but an inspection of the record shows that both the praecipe for summons, and the ad damnum in the declaration, laid the damages at $4,000.

The judgment is affirmed.

Affirmed.


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    The People, ex rel. Board of School Inspectors of City of Peoria, Appellant, v. City Council of Peoria, Appellee.
    Gen. No. 4,955.

      Taxation—power of city council of Peoria with respect to, for educational purposes. The city council of the city of Peoria is hbund to levy such sum for taxes for educational purposes as the board of school inspectors of that city fixes, not exceeding the statutory limit of such taxation. The power to fix the rate levied also rests in such school inspectors.

      Mandamus. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding.
    Heard in this court at the December term, 1906.
    Reversed and remanded.
    Opinion filed March 11, 1908.

      Winslow Evans and H„ C. Fullee, for appellant.
    Henry Manseield and W. II. Moore, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

The special charter of the city of Peoria, in force February 20, 1869, is still in force so far as relates to the subject of public schools, notwithstanding the subsequent adoption by the city of Peoria of the general act for the incorporation of cities. Chapter 13 of said special charter relates to the subjects of public schools and the board of school inspectors, a body corporate thereby created. The fourth power conferred upon said board of school inspectors by section 8 of said chapter 13 is “To establish, support and maintain public schools for all children of the city, and determine the rate of taxation for school purposes in the manner hereinafter provided.” Section 12 of said chapter is as follows: “On or before the first Tuesday in August of each year the board of inspectors shall determine the amount of money which, in their opinion, will be required to be raised by taxation for the support of the public schools of the city the ensuing year, and notify the city council of the rate of tax to be levied and collected for that purpose, as provided by the second clause of chapter I of this act, not exceeding the percentage authorized by said clause; and the amount so reported to the city council shall be levied and collected in the same manner and at the same time as other city taxes, and when collected shall be paid over to the treasurer of the board.” On July 2, 1906, the board of school inspectors passed a resolution reciting1 that in its opinion in order to maintain the schools of said city for the ensuing year 1906-1907 a tax of 2% per cent for educational purposes ivas necessary to be levied upon all the real and personal property subject to taxation for such purposes; and another resolution directing the city council of the city of Peoria to have levied and extended on all the real and personal property subject to taxation by said city of Peoria for school purposes a tax of 2^4 per cent for educational purposes; and that the president and. secretary of the hoard certify that action to the city council of the city of Peoria. On July 3, 1906, said president arid secretary did certify such-action to the city council, and the same was received by said body and referred to its finance committee. Subsequently the city council passed a tax levy ordinance wherein it levied for educational purposes a tax of one cent, two mills and 77-100 of a mill. Thereupon the hoard of school inspectors, in the name of the People, filed a petition in the Circuit Court praying for a mandamus to be directed to the city council of the city of Peoria, commanding it to levy an additional tax of 973-1000 of 1 per cent for educational purposes, being the difference between the amount fixed by the board of school inspectors and the amount levied hy said tax levy ordinance. The original petition for mandamus also involved the amount required hy the hoard of school inspectors for building purposes, but by an amended petition the prayer on that subject was eliminated, and the amended petition only sought relief as to the tax for educational purposes. The city council demurred to said amended petition, the demurrer was sustained, and there was a judgment for costs against the board of school inspectors. The petitioner appealed to the Supreme Court. The appeal was held improperly taken to the Supreme Court, and the cause was transferred to this court. People ex rel. v. City Council of Peoria, 229 Ill., 225.

We understand that it is here admitted that under the provisions of the present school law made applicable to schools under special charters, the amount and rate requested by the board of school inspectors to be levied for educational purposes did not exceed the limit of such taxation established by law. We understand the sole question to be whether the city council of the city of Peoria is bound to levy such sum for taxes for educational purposes as the board of school inspectors fixes, not exceeding the statutory limit of such taxation. That question has been passed upon several times by the courts of review in this State. In Trustees of Schools v. Board of School Inspectors of the City of Peoria, 115 Ill. App., 479, speaking of that portion of said special charter relating to schools, we said, on page 489: “Section 12 of chapter 13 provides that the hoard of school inspectors shall annually determine the amount of money that, will he required to meet the expenses of the public schools and certify the same to the city council, whose duty it is to see that the same is levied, collected and paid over to the treasurer of the board.” That case went by appeal to the Supreme Court, and is reported as Trustees of Schools v. Board of School Inspectors, 214 Ill., 30.

Speaking of said charter provisions, the Supreme Court there said: “The board is given full power to establish and maintain a system of free schools, and the office of township trustee of schools is abolished, and the duties devolve upon the board of school inspectors. It is made the duty of the board of school inspectors to certify to the city council the amount of money necessary each year for school purposes, and the city council by proper ordinances is required to levy the taxes thus required.” These charter provisions were again taken before this court in Gray v. Board of School Inspectors of the City of Peoria, 135 Ill. App., 494, where, in discussing this subject, which was there involved in a controversy between a taxpayer and said board of school inspectors, we said: “It is insisted that, under the provisions of the charter of the city of Peoria above set out, it is the city council and not the school board which levies the taxes. It is the school board which determines the amount of money required to be raised by taxation for the support of the schools for the ensuing year. It notifies the city council of such amount and of the rate to be levied, and the city council is then required to levy and collect such amount with said city taxes. Bo discretion seems to be given the city council as to the amount to be levied. The school board fixes the amount, and can no douht compel the council to levy that sum. In this respect it differs from the provisions of the special charter of the city of Joliet (Private Laws of 1857, 188, 219), which were under discussion in The People ex rel. v. Mottinger, 215 Ill., 256, for by that charter the city council possessed practically all powers which by the Peoria charter are conferred upon its board of school inspectors.” That case went by appeal to the Supreme Court, and is reported in Gray v. Board of School Inspectors, 231 Ill., 63. The court there said, on page 70: “By the special charter of the city of Peoria the board of school inspectors appoints a treasurer who is to receive all moneys under the control of said board, and keep a true and accurate account of the same, paying out such money only upon the order of said board. (Private Laws of 1869, pp. 169, 170.) The said board determines the amount of money required to be raised by taxation for the support of the schools, notifies the city council of such amount and the rate to be levied, and the city council is then required to levy and collect such amount with the other city taxes. No discretion is given to the city council as to the amount to be levied,—when it is fixed by the school board the council must levy that sum. * * * Under the city charter this board possesses practically all the powers that any school board of a city or counrry district possesses. True, it certifies the rate to the city council, and the charter says that body must levy; but the ordinary school district returns its levy to the township treasurer, and he gives it to the county clerk.”

When it is seen that by the charter provisions above stated the board of school inspectors is not only to determine the amount of money which will be required to be raised by taxes for the support of the public schools for the ensuing year, but also that said board of school inspectors is to determine the rate of taxation for school purposes, and that it is to certify the city council of the rate to be levied and collected, it is manifest that by the language used the city council is deprived of all power to reduce either the amount to be levied or the rate of taxation. The words used do not import any discretion in the city council, but it is made its duty to levy and collect the amount fixed by the board of school inspectors. Counsel for appellee have cited us to various other provisions of the said school charter, and therefrom argue that it cannot be that the legislature intended, in enacting this charter, to confer absolute power upon the board of school inspectors to fix the rate of taxation and the amount of taxes to be levied for school purposes, but must have intended that the city council should exercise a discretion as to whether or not it ivould levy the amount named by the board of school inspectors. They also rely upon the language used in People v. City of Bloomington, 130 Ill., 406, which, however, relates to an entirely different statute, and is not in point here. The language of the foregoing decisions, construing the charter of the city of Peoria in relation to the subject of schools, is so specific and so decisive of the point here raised, that it seems unnecessary for us to undertake to discuss the other provisions of the charter from which the argument has been built uj) that the legislature must have intended to give the city council a discretion.

For the reasons stated, the demurrer to the amended petition should have been overruled. The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: Per Curiam.

text:
    Jacob Binder, Appellant, v. Frederick Langhorst et al., Appellees.
    Gen. No. 4,942.
    Appeals and errors—when affirmance is by operation of laxo. Where one of the judges of the Appellate Court is disqualified from the “consideration of a cause and the remaining two judges disagree as to whether a cause should be affirmed or reversed, an affirmance results by operation of law.
    Action on the case. Appeal from the Circuit Court of Kane County; the Hon. Henry B. Willis, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    A. H. Switzer and Murphy & Alschuler, for appellant.

      Raymond & Rewhall and Lee Migiiell, for appellees.
   Per Curiam.

Mr. Presiding Justice Willis tried this case in the court helow, and has therefore taken no part in its consideration here. The other members of the court have given the case a careful examination, and are divided in opinion as to" whether the judgment should be affirmed or reversed. It is customary to say that such cases are affirmed by operation of law. The practice seems to have been founded upon an early statute which enacted that if the Supreme Court was equally divided in opinion the, judgment of the court below should stand affirmed. R. S. 1827, p. 319, section 36 of Practice Act; R. S. 1845, p. 421, section 55 of Practice Act; Kerr v. Whiteside, Breese, 390. Since the Appellate Courts were established several cases so affirmed have gone to the Supreme Court, and have been there treated as properly so decided. Among these are Claflin v. Dunne, 30 Ill. App., 84, reviewed in 129 Ill., 241; Springer v. City of Chicago, 37 Ill. App., 206, reviewed in 135 Ill., 552; McDonald v. I. C. R. R. Co., 83 Ill. App., 463, reviewed in 187 Ill., 529; and Channon Co. v. Hahn, 90 Ill. App., 256, reviewed in 189 Ill., 28. In none of these did the Supreme Court notice the manner of the affirmance in the Appellate Court. But in Cross v. Will County National Bank, 71 Ill. App., 404, reviewed in 177 Ill., 33, and in Offut v. World’s Columbian Exposition, 73 Ill. App., 231, reviewed in 175 Ill., 472, the Supreme Court mentioned the fact that the affirmance in the Appellate Court was by a divided court, and gave the course pursued an implied approval. Whatever the original source of the power of one member of,the Appellate Court to effect an affirmance of a judgment, under-such circumstances, that authority is fully recognized in this State. A like course has been pursued in other jurisdictions. The authorities upon the subject are found in 3 Am. Digest, Century Edition, 2416 to 2421. A judgment was so affirmed in an opinion by Chief Justice Marshall in Etting v. Bank of U. S., 24 U. S., 59, with the statement that such a judgment did not settle the principles of law involved, and such seems to be the general view taken by other courts.

The judgment is therefore affirmed.

Affirmed.


author: Mr. Justice Thompson

text:
    J. G. Lyons, Plaintiff in Error, v. Hammond Elevator Company, Defendant in Error.
    Gen. No. 4,773.
    1. Principal and agent—when relation of established. Held, that the evidence in this case tended strongly to establish the existence of the relation of principal and agent.
    2. Res judicata—when question of agency is. The question of agency is one of fact, to be determined upon the hearing of the merits of a cause, and does not become res judicata by virtue of the determination of that issue upon a plea in abatement interposed in the same cause.
    3. Appeals and errors—when constitutional question not involved. A constitutional question is not involved upon an appeal by virtue of a witness's refusal to answer questions, etc., upon the ground that his answer would tend to incriminate him.
    4. Appeals and errors—when additional abstract should be filed. If the original abstract is not sufficient to present the question of jurisdiction raised by the appeal, the appellee should file an additional abstract.
    5. Assumpsit—when judgment in, irregular. A judgment against one of several defendants in assumpsit is irregular; the declaration charging joint liability, the judgment must be against both defendants (unless infancy, bankruptcy, or some like defense has been pleaded).
    Assumpsit. Error to the Circuit Court of Livingston County; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    A. O. Korton and E. B. Campbell, for plaintiff in error.
    White & Thesbhrg and Kern & Brown, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

J. G. Lyons, plaintiff in error, brought suit against the Hammond Elevator Company and W. B. Lundy, defendants in error, to recover money lost in speculating in grain and stocks. The suit is brought under section 132 of the Criminal Code. The declaration- consists of the common counts. Service of summons was had upon defendant Lundy by reading and upon the company by leaving a copy with Lundy as its agent. The company filed a plea in abatement setting up that it is a Delaware corporation, with its principal office in the city of "Wilmington, Delaware, and that it was not found or served with process either upon any officer of said corporation on upon any agent thereof. Issue was joined on this plea and it was agreed that “that issue alone on the plea to the jurisdiction be submitted to the jury, without prejudice to either party hereafter submitting to another jury an issue as to the merits.” At the conclusion of the opening statement to the jury of counsel for the company, it was agreed that the jury might consider and render their verdict on the statement as the evidence. The jury found against the company, finding that Lundy was its agent. A trial on the merits was then had and a verdict found against both defendants. On motion a new trial was granted.

The second trial on the merits was had before another judge. The pleas being mislaid, it was agreed that pleas of the general issue, the Statute of Limitations and a plea denying joint liability on behalf of each defendant, and proper replications thereto were considered filed. At the close of plaintiff’s evidence, on motion of counsel for the Hammond Elevator Company, the court instructed the jury to find it not guilty, on the ground that there was no evidence tending to show that Lundy was its agent. The court sustained the motion and instructed the jury accordingly. The case then proceeded against Lundy, and a verdict was rendered against him for $1,580. Defendant Lundy made a motion for a new trial, and the plaintiff made, a motion for a new trial against the Hammond Elevator Company. The court overruled both motions and rendered judgment against the plaintiff in favor of defendant elevator company, and in favor of the plaintiff against Lundy. Lyons prosecutes this writ of error to reverse the judgment in favor of the elevator company, and Lundy has entered his appearance hut filed no briefs.

The evidence shows that a private wire ran from the Hammond Elevator Company’s office in Indiana to Lundy’s office in Pontiac; that Lyons is a telegraph operator and had worked for Lundy and knew the code used between the company and Lundy. Lyons testified to orders he heard sent over the wire and answers returned. There was admitted in evidence without objection a part of the opening statement made by the company’s attorney on the trial of the issue in abatement in which is the statement that “the Hammond Elevator Company pays Lundy for his services in receiving and communicating bids, arranging sales, the Hammond Elevator Company pays Lundy a dollar a car, or whatever iPAs.” An officer of the Livingston County National Bank at Pontiac showed that Lundy deposited large sums in the bank to the credit of the company for "which he carried a pass book; that no one in Pontiac drew checks on this account, but checks signed by the Hammond Elevator Company were usually presented by Lundy. The testimony tended strongly to show that Lundy was the agent of the company. We conclude that the giving of the peremptory instruction in favor of the elevator company was error.

The plaintiff offered in evidence the plea in abatement, the verdict, and the judgment respondeat ouster, and the court refused to admit them. The ruling was correct because it was not a final judgment.

The refusal of the court to compel Lundy to answer certain questions and to produce statements and books is also assigned for error. It is insisted by the company that a constitutional question is involved because Lundy was under indictment for violating the Criminal Code by the transactions in controversy, and that such answers or statements might tend to incriminate him. That was an objection personal to Lundy and could not be made by any other person for him. The abstract does not show that any such objection was made by Lundy. If anything has been omitted from the abstract which would deprive this court of jurisdiction the defendant in error, Hammond Elevator Company, should have filed an additional abstract. Godwin v. Springer, 231 Ill., 40. There is nothing before us showing that any such question was raised in the trial court, and it cannot be raised here for the first time.

The defendant company seeks to take advantage of various irregularities in the trial to defeat this writ of error, but has not indicated in what way it is entitled to take advantage of such irregularities. This suit is assumpsit and is in form ex contractu. The statute (Criminal Code, section 132) under which this suit is brought permits suit to be brought either in an action ex contractu or ex delicto. Lyons, having chosen to bring his action ex contractu, is bound by the established rules of practice applicable to that character of cases. If plaintiff failed to make out a case against the company, the proof did not correspond with the pleadings and the court should have directed a verdict in favor of both defendants unless the plaintiff should dismiss as to one defendant and amend his pleadings so as not to charge joint liability. In assumpsit the verdict and judgment must be against all defendants in court or none, unless some defense personal to some defendant, such as infancy, bankruptcy, etc., is pleaded or the case is governed by some statute, as in the case of negotiable instruments. Black on Judgments, section 206; Claflin v. Dunne, 129 Ill., 241; Gould v. Sternburg, 69 Ill., 531.

Plaintiff having failed to dismiss as to the Hammond Elevator Company and amend his declaration, the subsequent-verdict and judgment against Lundy is irregular and erroneous. The entire judgment, both that against plaintiff in favor of the company for costs, and that in favor of plaintiff against Lundy, is reversed and the cause remanded.

Reversed and remanded.


text:
    Altje Wiltz, Appellee, v. Lewis Classen, Appellant.
    Gen. No. 4,837.
    Appeals and errors—when assignment of error waived. An assignment of error not argued in the original brief is waived.
    Judgment by confession. Appeal from the Circuit Court of Wood-■ford County; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the April term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    J. A. Biely and Thomas Kennedy, for appellant.
    W. A. Kane and Barnes & Magoon, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

At the April term, 1906, of the Circuit Court of Woodford county, a judgment by confession on a note and warrant of attorney was entered against Lewis Classen, appellant, and K. L. Classen for $1,640 and costs in favor of Altje Wiltz, appellee. The defendants at the same term entered a motion to set aside the judgment and for leave to plead. At the September term the motion was allowed. Defendants filed pleas of set-off, want of consideration, failure of consideration and that the consideration for the note was an illegal contract for services to he rendered by Lewis Classen in assisting the appellee in wrongfully obtaining from the Kational Government the repayment of duty paid upon imported stallions. With the plea of set-off, a bill of particulars was filed containing an item of $150 due for services, etc., from January 1 to March 25, 1904, and an item of $1.J5 for a shovel, fork and electric light globe furnished during the same period. The remaining items of the set-off are dated subsequent to March 25. Issue was joined on the pleas. The note upon which the judgment wras entered was executed in July, 1904, hut was dated back to March 25, 1904. The case was heard before a jury which returned a verdict in favor of plaintiff for $1,120.51. A motion for a new trial was overruled, judgment entered on the verdict and Lewis Classen appeals.

The only error assigned and argued by counsel in the original brief is, that the court improperly refused to permit appellant to offer any evidence concerning the two items of set-off claimed by appellant prior to March 25, 1904, the date of the note. Counsel for appellee confess the error and enter in this court a remittitur of $151.75, the total of the two items.

In their reply brief counsel for appellant argue that the note was given for the purchase of some horses, upon which appellee had paid $1,285 duty when they were imported, and that appellant entered into a conspiracy to defraud the government by assisting appellee to procure its return. Appellant not having argued this assignment of error in his original brief has waived the same. West Chicago Park Commissioners v. City of Chicago, 170 Ill., 618; Keys v. Kimmel, 186 Ill., 109; Conkey v. Rex, 111 Ill. App., 121; Trimble v. Terril, 99 Ill. App., 349. We have, however, examined the abstract and find there was no evidence that the matter argued in the reply had anything to do with the consideration for the note and no error was made by the court in excluding the evidence offered on the third, fourth and sixth pleas. The entry of a remittitur in this court of $151.75 cures the only error assigned and argued. The judgment will be affirmed for the balance, the costs in this court to be taxed against appellee.

Affirmed for $968.76.