text:
    Sanfrid Harnstrom, Appellee, v. Anderson Electric Car Company, Appellant.
    Gen. No. 23,888.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Replevin by Sanfrid Harnstrom, plaintiff, against Anderson Electric Car Company, defendant, to recover possession of an automobile. From a judgment for plaintiff, defendant appeals.

      Abstract of the Decision.
    1. Bailment, § 11*—when mutual benefit bailment of automobile is created making bailee liable for ordinary negligence of servants. Where, in connection with the contract of sale of an automobile, the seller agrees to give the buyer free monthly inspection service, in rendering such service the seller is not performing a gratuitous act, and the relation between the seller and buyer is not that of bailor and bailee, but there is a mutual benefit bailment under which the seller becomes liable for Injury to the car by ordinary negligence of its servants while driving the car to the seller’s shops for the purpose of rendering the service.
    2. Automobiles and garages, § 6*—when collision between electrie car and gas car shown to be due to negligent operation of former. Evidence held to show that damage to an electric auto- • mobile colliding with a gas car as the driver of the electric was attempting to get into a line of moving cars was due to the negligent handling of the electric.
    3. Replevin, § 135*—when damages for wrongful detention of automobile not excessive. In an action of replevin to recover possession of an automobile, a verdict of $100 damages for wrongful detention of the car is not excessive where the record shows that plaintiff was in the real estate business and used the car extensively in making trips in the conduct of his business, and was deprived of its use for more than three months.
    4. Automobiles and garages, § 5

      —when immaterial that defendant had right to detain automobile for payment of repairs. In an action of replevin to recover possession of an automobile, where it appears from the affidavit of merits and the evidence that the car was being held for the payment of the cost of repairs caused by defendant’s negligence, it is immaterial that defendant had a right to detain it for the payment of a small hill covering the cost of an appliance added to the machine under authority from the plaintiff.
    M. M. Jacobs, for appellant.
    Habry J. Berman, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    James F. Bishop, Administrator, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 23,897.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. WbBKMEN’s Compensation Act, § 12

      —when declaration in action for death of employee is insufficient. In an action to recovei for the death of an employee, a declaration which omits to allege or state any facts showing that the employer and employee were not, at the time of the accident, under the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. f 5475(1) et seq.], does not state a cause of action.
    2. ' Workmen's Compensation Act, § 14*—when declaration does not allege casual employment of employee. Allegations in a declaration, in an action to recover for the death of an employee, that defendant, on the date of the accident, owned and operated a street railway system and a power house, and that “prior to and at the time aforesaid, said deceased was employed hy the defendant as a fireman,” to fire certain boilers which defendant operated in its power house to furnish steam for the operation of the dynamos of defendant; that deceased earned $4 a day; that defendant maintained boilers which “deceased was required to fire and work with,” and which also refers to the conduct of deceased “in the discharge of his duties” as fireman, are inconsistent with the theory that the employment was casual and constitute an affirmative allegation of regular employment.

      Appeal from the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Action by James F. Bishop, administrator of the estate of William E. Ford, deceased, plaintiff, against Chicago Railways Company, defendant, to recover for the death of plaintiff’s intestate. From a judgment for plaintiff for $9,000, defendant appeals.
    P. L. McArdle and Charles LeRoy Brown, for appellant; John R. Guilliams, of counsel.
    James C. McShane, for appellee.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

3. Workmen’s Compensation Act, § 12*—when plaintiff must show in pleadings that either of parties not under. In an action to recover for the death of an employee, the burden is on the plaintiff to assert in his pleadings and to prove that either the employer or the employee is not hound hy the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. V 5475(1) et seq.].

■ 4. Workmen’s Compensation Act, § 14*—duty of plaintiff in action for death to prove that employment is hut casual. In the. provision in section 5 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. If 5475(5)] that the term “employee” shall be construed to mean “every person in the service of another under any contract of hire, * * * but not including any person whose employment is hut casual,” the concluding words constitute an exception, and, in an action to recover for the death of an employee, the plaintiff, to bring himself within the exception, must affirmatively prove it

5. Workmen’s Compensation Act, § 12 —what is essential allegation in action to recover for death of employee. If, in an action to recover for the death of an employee, plaintiff does not, in his declaration, negative the presumption .that the parties are under the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. If 5475(1) et seq.h, he has failed to state an element, the existence of which is essential to entitle him to recover.


text:
    B. F. Bush, Receiver, Appellee, v. Carloading & Distributing Company and W. McMillan & Son (Defendants). W. McMillan & Son, Appellant.
    Gen. No. 23,910.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Payment, § 41

      —when rule preventing recovery of money paid voluntarily under mistake of law is inapplicable. The rule which prevents the recovery of money voluntarily paid under a mistake as to the law and under a claim of right does not apply to an action by a carrier to recover freight charges refunded by it on interstate shipments under a mistake as to amount of such charges as regulated by the Interstate Commerce Act.
    2. Carribes, § 33a*—what rates must be paid on interstate shipments. The only rates which a common carrier may collect and a __ shipper may pay on interstate shipments are those fixed hy the Interstate Commerce Act, and those rates cannot be altered by mistakes or misapprehensions of either shipper or carrier.

      Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding.
    Heard in this court at the October term,, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Action by B. F. Bush, receiver of the Missouri Pacific Railway Company, plaintiff, against Carloading & Distributing Company and W. McMillan & Son, defendants, to recover a certain amount which was alleged to be due by reason of having been erroneously refunded to defendants as overcharges on freight and by reason of undercharges on freight. From a judgment for plaintiff, defendant McMillan & Son appeals.
    Huttmakk, Cloyes & Carr, for appellant.
    Jeffery, Campbell & Clark, for appellee.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

3. Commerce, § 33a*—what is proper forum to pass upon railroad rates and tariffs. The Interstate Commerce Commission is the proper forum to pass upon the comparative fairness of through rates and local tariffs.

4. Carriers, § 211 —when expert evidence relating to interstate commerce tariff rates is admissible. In an action to recover back money alleged to have been erroneously refunded as an overcharge on an interstate shipment, it is not error to permit an expert to explain matters connected with the interstate commerce tariff rates and schedules.


text:
    Henry Pollenz, Administrator, Appellee, v. Chicago City Railway Company and Chicago Railways Company, Appellants.
    Gen. No. 23,922.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 29, 1918.
    Statement of the Case.
    Action by Henry Pollenz, administrator of the estate of Louis P. Dreuth, deceased, plaintiff, against Chicago City Railway Company and Chicago Railways Company, defendants, to recover for the death of plaintiff’s intestate, while employed by defendants, alleged to have been caused by being run over by a car through defendants’ negligence. From a judgment• for plaintiff for $5,000, defendants appeal.
    John E. Kehoe and Frank L. Kriete, for appellants; W. W. G-urley and John R. Cuilliams, of counsel.

      Abstract of the Decision.
    1. Master and servant, § 537*—what are independent allegations in declaration in action for death of street car employee. Allegations in a count of the declaration in an action to recover for the death of an employee, killed by being run over by a street car of defendants, that while deceased walked behind the car in the performance of his duty of replacing the trolley on the wire, defendants negligently failed to securely brake and hold the car and permitted it to move down grade upon deceased, and as to defendants’ negligence in failing to furnish a safe place to work and in the operation of the car following the one which struck deceased, do not cover acts so correlated to the_ accident that the failure to prove any of these particulars is a failure to prove that the accident happened through defendants’ negligence, but each of such allegations is independent.
    2. Negligence, § 128*—when duplicitous count is cured. A count demurrable for duplicity as alleging several different acts of negligence is, after verdict, cured -of its imperfections.
    3. Master and servant—when rule requiring conductors of street cars to remain on platform while replacing trolley on standing car not proved. In an action to recover for the death of a street car conductor who was run over by his car while replacing its trolley on the wire, evidence that it was customary for conductors to stand on the platform at this part of the track and watch the trolley as the car was moving is insufficient to prove a rule requiring conductors to remain on the platform while replacing the trolley on a standing car.
    4. Master and servant, § 177

      —what not defense in action for death of street car conductor killed hy hacking car while replacing trolley. In an action to recover for the death of a street car conductor who was run over by his car moving down grade upon him, by reason of the brake being released while he was replacing its trolley, no signal being given by the motorman, the car being dark and another car being a few feet behind, it is no defense that the motorman had no reason to know that the conductor would stand back of the car.
    David K. Tone and Frank A. Bookhold, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court


author: Mr. Presiding Justice Niehaus Mr. Justice Dibell

text:
    Cyrus Bocock, Administrator, Defendant in Error, v. William A. Leet, by Ralph L. Todd, Plaintiff in Error.
    Gen. No. 6,343.
    1. Appeal and error, § 43— when writ of error lies to County Court. A writ of error to a County Court from the Appellate Court, in proceedings for the administration of an estate by a public administrator and for the sale of real estate to pay debts, may be sued out.
    2. Executors and administrators—what is nature of proceedings by public administrator to sell land to pay debts. Proceedings by a public administrator to sell real estate to pay debts are purely of statutory origin, and where it is sought to devest an heir of his title to real estate in such proceedings, it must appear that the statute has been strictly complied with.
    3. Executors and administrators, § 56*—when County Court has jurisdiction to appoint public administrator. A County Court has jurisdiction to appoint a public administrator at the instance of a creditor, where the time has expired within which relatives of the deceased have the exclusive right to administer the estate, although it is not averred in the petition that there is no relative or other creditors in the State to administer the estate.

      4. Executors and administrators, § 296*—right of heir to question legality of allowance of claim. The allowance of a claim against an estate is only prima facie evidence against the heirs of deceased, and not conclusive, and an heir has the right under certain conditions to question the legality of the allowance of a claim by a public administrator and by the court.
    5. Executors and administrators, § 264*—what'is nature of a claim. A claim filed in the matter of the administration of an estate is a pleading.
    6. Pleading, § 2*—what is. A pleading is a statement in the legal form of facts which constitute the plaintiff’s cause of action, or the defendant’s ground of defense.
    7. Executors and administrators, § 264*—what is pleading of claimant. The pleading of a claimant in a proceeding in the Probate Court for a judgment against an estate is a claim prepared in accordance with the provisions of the Administration Act.
    8. Records, § 7*—what is part of record. As a pleading in the case, a claim filed against an estate is a part of the record.
    9. Executors and administrators, § 206*—what is contingent unprovahle claim. A claim against an estate based upon a contract between claimant, the life tenant of property, and deceased and other heirs, whereby deceased and the other heirs agreed to pay claimant a certain sum per month, inclusive, however, of rents from the property, which they agreed to collect and pay over as a part of the monthly payment, for the lifetime of claimant, is not provable under section 67 of the Administration Act (J. & A. ? 116), since it is contingent in nature.
    On Petition for Writ of Restitution.
    1. Appeal and error, § 7*—what is nature of writ of error. The suing out of a writ of error is the commencement of a new action.
    2. Appeal and error, § 1036*—what is nature of assignment of errors. The assignment of errors is the declaration of the plaintiff suing out the writ of error.
    3. Appeal and error, § 7*—what is office of writ of error. Although a writ of error is a new suit, yet it is not an original suit in the Appellate Court, in which new issues of fact may be framed, its only office being to try the validity of the proceedings had in the court below and to determine whether reversible error is found therein.
    4. Appeal and error, § .1844

      —when Appellate Court will not entertain petition for writ of restitution after remand. Where, on writ of error to the Appellate Court, the grant of letters to a public administrator is approved, but the allowance of the claim, the decree of sale of real estate to pay debts, and the sale and order approving it are set aside and the cause remanded, the Appellate Court will not entertain a petition for a writ of restitution against the purchaser of the property sold and a subsequent vendee to compel the surrender of the property, and the subsequent vendee, who is in possession, not having been made a party .to the writ of error originally sued out to review the allowance of the claim, etc., since such vendee is entitled to her day in court.
    Error to the County Court of Stark county; the Hon. B. F. Thompson, Judge, presiding.
    Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 19, 1917.
    Rehearing denied October 3, 1917.
    Opinion on petition for writ of restitution filed April 9, 1918.
    Peffers & Wing and Miles & Fuller, for plaintiff in error.
    James H. Rennick and Evans & Evans, for defendant in error.

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This case comes before us by a writ of error to the County Court of Stark county, sued out by William A. Leet, a minor," by his'next friend, and concerns the proceedings had in the County Court by which the interests of the minor in certain real estate were sold by the defendant in error, as public administrator of the estate of Frank M. Leet, deceased, under the order of the County Court.

Frank M. Leet, deceased, was a resident of Audubon county, in the State of Iowa, where he died on April 6, 1895. The record disclosed that on September 7, 1910, a petition was filed in the County Court of Stark county, for administration on the estate of Frank M.. Leet, deceased, and that upon this petition Cyrus Bocock, at that time public administrator of Stark county, was appointed administrator of the estate, and qualified as such. The petition for administration avers that Frank M. Leet died seized and possessed of real and personal estate in Stark county, Illinois, his property consisting chiefly of an undivided one-fifth interest in lands in Stark county, which were described, subject to the life estate of Helen Leet, and that the deceased left surviving his widow, Lida L. Leet, and his children, Helen 0. Leet and William A. Leet, as heirs.

The petition is made by James A. Brady, a credible person, as attorney for Helen Leet, a creditor, and the facts stated in the petition are verified by his affidavit.

The administrator, after his appointment, and after qualifying, filed an inventory of the estate from which it appears that the deceased left no personal estate, but owned an undivided one-fifth of the east half of Section 12, and the south half of Section number 3, all in Township 14 north, Range 7 East of the fourth principal meridian in Stark county, which interest was valued at $10,000; and that this one-fifth interest in a partition proceedings had been assigned to said Frank M. Leet, deceased, in lots 2 and 3 of the south half of said Section 3, as shown by a plat and survey made, of record, containing 135.14 acres, subject to the life estate of Helen Leet, the mother of the deceased, which inventory was approved by the court.

On the same day Helen Leet, the alleged owner of a life estate in the real property described in the inventory, filed the following claim in writing against the estate, which was verified by affidavit:

“Estate of Frank M. Leet, Deceased, to Helen Leet, Dr.

“To amount due for payments to be made to Helen Leet, this claimant under a contract in writing, dated January 10,1899, between said Helen Leet of the one part and said Frank M. Leet, Mary J. Stoughton, Rosa L. Thompson, Anna L. Boysen, and George Keller Leet of the other part, and being the balance due (after allowing all just credits) as and for the one-fifth share of such payments up to and including Oct. 20, 1910...................................$ 1,160.47

“To amount due as and for one-fourth of 'the sum of $2,760.47, being the balance due (after allowing all just credits) under the contract aforesaid by said Anna L. Boysen, as and for her one-fifth share of the payments to be made under said contract up to and including Oct. 20, 1910...............$ 690.11

“To the present value of payments of $200, each and every month from and after Oct. 20,1910, for and during the natural life of Helen Leet, this claimant, said amount of $200 a month, being one-fifth of the amount hereafter payable monthly under the contract aforesaid to this claimant...........$12,444.44

■ $14,295.02”

The contract upon which the claim was based, and to which it had reference, was attached to and made a part of the claims filed. This contract was executed between Helen Leet, the widow of William Leet, deceased, and the children and heirs of William Leet, deceased, namely, Frank M. Leet, Mary J. Stoughton, Rosa L. Thompson, Anna L. Boysen and George Keller Leet, and it recites that in consideration of the sum of $100 paid to Helen Leet, the widow, by the children and heirs mentioned, and in consideration of the covenants and agreements in the contract mentioned to be kept and performed by the parties mentioned, that Helen Leet had sold and conveyed to the parties mentioned certain real estate and premises situated in the county of Audubon, in the State of Iowa, and she released and assigned to the parties mentioned her claim and right to a widow’s award in the personal estate of William Leet, deceased; also certain mortgages, bonds, stocks, ehoses in action, securities, etc., in consideration whereof, and said Frank M. Leet and the other parties mentioned jointly and severally covenant, agree and promise that they will lease the lands assigned to Helen Leet for dower, situated in Stark county, collect the rents therefor, keep the property in repair, pay the taxes thereon, and relieve and save said Helen Leet, their mother, from all care and responsibility in the management of her estate, and that they will pay to her for her maintenance and support or pleasure, including such rents, the sum of $1,000 per month, to be paid monthly, for and during her natural lifetime.

The administrator entered his appearance in the matter of the allowance of the claim filed, and waived the service of process and consented to the allowance of the claim mentioned for $14,295.02, and the court thereupon, on the same day that the claim was filed, allowed the same for the full amount, as a claim of the seventh class, to be paid in due course of administration.

Thereafter, on December 31, 1910, the administrator filed an account purporting to show the condition of the estate, from which it appears that no money or personal property of any sort came to the hands of the administrator, and that he was unable to find any such money or personal property, and that there was due to Helen Leet, as a creditor of the estate on the el alms which had been allowed, the sum of $14,295.02, and that the estimated costs and expenses of administration, which were unpaid and which would accrue, would amount to $500, and it averred that, therefore, there was a deficiency of personal assets amounting to $14,795.02. And this account of the condition of the personal estate of the deceased was filed as a part of the petition to sell the real estate, which was also filed the same day.

The petition is verified by the affidavit of the administrator, and alleges that Frank M. Leet departed this life at Audubon, in the State of Iowa, on or about the 6th day of April, 1905, leaving the real estate described in the petition, being the same real estate described in the inventory; that the petitioner was duly appointed administrator of the estate of the deceased on the 7th of September, 1910, and duly filed an inventory as such administrator, and rendered a true and just account of the personal estate, and the debts of the deceased, a copy of which is attached to the petition, and consisted of the claim of Helen Leet, as heretofore set forth; that there was no personal estate of the deceased, and that therefore there was a deficiency of personal property to pay the debts of the deceased in the amount heretofore stated; that the deceased died as owner in fee simple of an undivided one-fifth of the real estate heretofore described, subject to the life estate of his mother, said Helen Leét, and that said real estate had been partitioned by proceedings in the County Court, and said one-fifth interest was represented in Lot Ho. 2, of the south half of Section Ho. 3, containing 57 acres, and that said Lot 2 was subject to the life estate of Helen Leet; and that the interest of the deceased in the premises described was reasonably worth $10,000; that the deceased left surviving him Lida L. Leet, his widow, William A. Leet, of the age of 18 years, and Helen C. Leet, as his only children and heirs; that Asmus Boy-sen was guardian of William A. Leet, by appointment of the District Court of Audubon county, Iowa, as petitioner was informed and believed. Ill consideration of the premises petitioner prayed that Helen C. Leet, William A. Leet, Lida L. Leet and Asmus Boy-sen, guardian of William A. Leet, might be summoned to appear before the court on the 1st day of February of the probate term thereafter, to answer the petition; and that the court appoint some discreet person as guardian ad litem for William A. Leet, the minor heir, to appear for and defend his rights therein; and praying that the court order and direct the petitioner to seE all the right, title and interest of the deceased in said real estate, subject to the life estate of Helen Leet, therein, according to law, or so much thereof as might be necessary to pay the debts of the intestate.

Summons was issued against all the defendants, returnable the first Monday in February, 1911, and was returned by the sheriff that the defendants were not found, and publication of a nonresident notice was made in the Stark County News, a weekly public newspaper, as required by the statute; also a certificate was filed, showing the mailing of the notice to the nonresident defendants, by the clerk of the County Court on January 4, 1911.

On the coming in of court on the first Monday of February, 1911, the court made an order appointing W. W. Wright, Jr., guardian ad litem for William A. Leet, the infant defendant, and on the same day, namely, February 7th, entered a decree based upon the petition of the administrator to sell the real estate in question to pay the claim of Helen Leet, mentioned. The decree recites the filing of the petition, the issuing of the summons, and the publication of the notice for 4 successive weeks in the Stark County News, the first publication being on the 4th day of January, 1911, and more than 30 days before the'first day of the term, and the last publication on the 25th of January, 1911, and that the publication of the notice was in conformity with the statute, and that the court had jurisdiction of the cause and the parties, also recites the appointment of the guardian ad litem for the minor defendant, who had filed his answer to the petition, and that the other defendants having failed to plead, answer or demur, were in default, and finds that the personal estate of the deceased was not sufficient to pay the debts against such estate, and that there was a deficiency of $14,795.02; that Frank M. Leet died as the owner in fee simple of the premises described, and that his interest was reasonably worth the sum of $10,000; that the deceased had left him surviving said Lida L. Leet, his widow, and William A. Leet and Helen C. Leet, his only children and heirs; and that Asmus Boysen was the guardian of William A. Leet by appointment of the District Court of Audubon county, Iowa, and thereupon the court ordered and decreed that the administrator be authorized to sell all the right, title and claim and interest of Frank M. Leet, in and to the premises described, to the highest and best bidder for cash at public auction, at the front door of the courthouse in Toulon, and that he publish a notice of the time, place and terms of holding such sale in a public newspaper published in the county, for a space of 4 weeks previously, and by putting up notices thereof, in at least four of the most public places in Stark county.

The administrator gave the notice as required by the decree to sell the property on the 6th day of May, 1911, and on that day the same was sold by him at a public sale to Rosa L. Thompson for $7,000. On the day of the sale, which was the first day of the May term, the administrator filed a report of such sale, which report of sale was approved by the court, and the property was thereupon conveyed to said Rosa L. Thompson by an administrator’s deed made in pursuance to such sale.

The defendant in error insists that the plaintiff in error has no legal right to sue out a writ of error to review the proceedings concerning the administration of the estate of Frank M. Leet, deceased, nor to question the validity of the sale of the real estate which was made by virtue of the decree of the County Court, and that the remedy provided for error in the administration is by appeal to the Circuit Court; also, that the finding of the court, as to the validity of the claim for the payment of which the real estate in question was sold, is conclusive on this court.

We are of opinion that under the authority of Unknown Heirs of Langworthy v. Baker, 23 Ill. 484, and Fitzgerald v. Glancy, 49 Ill. 465, the record of the administration of the estate and the proceedings for the sale of the estate are properly before us for review; and that the writ of error to the County Court of Stark county was properly sued out by the plaintiff in error for that purpose. It is apparent that the sale of the real estate on the order of the County Court was the object and the culmination of the preliminary proceedings in the administration of the estate, commencing with the appointment of the administrator, and followed up by the allowance of the claim of Helen Leet against the estate of the deceased, and these preliminary proceedings were necessary under the statute as legal basis for entering an order to sell real estate. The proceeding to sell real estate to pay debts is purely of statutory origin, and where it is sought to devest an heir of his title to real estate in such proceedings it must appear that the statute has been strictly complied with. (Therens v. Therens, 267 Ill. 592.)

The plaintiff in error contends that the County Court did not have jurisdiction to appoint the defendant in error as administrator. This contention, however, cannot be sustained. It appears from the petition, with sufficient clearness, that it was filed by James A. Brady as the attorney of Helen Leet, who was a creditor of the estate. Inasmuch as the time had expired within which under the present statute the relatives of the deceased had the exclusive right to administer, it was not necessary to aver that there was no relative or other creditors in the State to administer the estate. The petition, while somewhat awkwardly worded, presents substantially the necessary jurisdictional facts for the granting of letters of administration to the defendant in error; and we are of opinion that such letters were properly issued to him. Nor do we think that the contention concerning the notice which was published and mailed to the nonresident parties in connection with the filing of the petition to sell the real estate of the deceased can be sustained. The notice appears to be substantially in conformity with the requirements of the statute.

There is merit, however, in the contention of the plaintiff in error that the County Court could not legally allow the claim filed by Helen Leet to recover under the contract with the deceased and the other heirs of William Leet, deceased, the present value of payments of $200, each for every month from and after October 20,1910, during the natural life of Helen Leet, amounting to the sum of $12,444.44.

The allowance of a claim against an estate is only prima facie evidence against the heirs of the deceased, and not conclusive. (Moline Water Power & Mfg. Co. v. Webster, 26 Ill. 234; Hopkins v. McCann, 19 Ill. 113; Stone v. Wood, 16 Ill. 177; Curry v. Mack, 90 Ill. 606.) And the plaintiff in error, an heir of the deceased, has the right to question the legality of the allowance .of such claim in this proceeding. (Unknown Heirs of Langworthy v. Baker, supra; Fitzgerald v. Glancy, supra.)

Defendant in error insists that the allowance of the claim is conclusive, so far as the consideration of the question of its validity by this court is concerned, because the claim filed is not a part of the record. The statute requires that a creditor who has a claim against an estate should file his claim in writing. In this case Helen Leet, as a creditor, filed her claim in writing, and attached the contract upon which it was founded, as a part of the claim. We are of opinion that a claim filed in the matter of the administration of an estate is a pleading. A pleading is a statement in the legal form of the facts which constitute the plaintiff’s cause of action, or the defendant’s ground of defense. (22 Am. & Eng. Eneyc. of Law, 2nd Ed. 837.)

The pleading of a claimant in a proceeding in the Prohate Court for a judgment against an estate is a claim prepared in accordance with the provisions of the Administration Act. (Hall v. Hale, 202 Ill. 326.) And so it was held in Russell v. Hubbard, 59 Ill. 335, that the amount stated as the alleged indebtedness in a claim filed against an estate should be given the same effect as an ad damnum in a declaration. As a pleading in the case, the claim with the attache.d contract is a part of the record. (Zimmerman v. Cowan, 107 Ill. 631; Lundberg v. City of Chicago, 183 Ill. 572; Houston v. City of Chicago, 191 Ill. 559.) Generally, whatever proceedings, facts or papers the law or the practice of the various courts require to be enrolled, are properly a part of the judicial record. (Fountain Head Drain. Dist. Com'rs v. Wright, 228 Ill. 208.)

Helen Leet’s claim for $12,444.44 was based upon the contract, which has been referred to, and, under the terms of the contract, the deceased, together with four other heirs of William Leet, deceased, agreed to pay $1,000 per month, inclusive, however, of the rents, which they had agreed to collect and pay over as a part of the monthly payment, and the monthly payment was to be made only during the lifetime of Helen Leet. It is evident, that to ascertain the actual amount which the parties were liable for, the amount of the rents collected had to be taken into consideration. If the rents collected in any month equaled the amount to be paid, there was nothing additional to pay. The amount which the parties to the contract, including the deceased, were obligated to pay was therefore uncertain, and its payment also depended upon Helen Leet being alive at the time it was payable. It was not a liability which was fixed and determined but was contingent. A claim of this character is not provable under section 67 of the Administration Act (J. & A. ¶ 116). Union Trust Co. v. Shoemaker, 258 Ill. 564; Mackin v. Haven, 187 Ill. 480; Brown v. Rouse, 116 Ill. App. 513. And under the terms of this contract the estate could not be held liable for the present value of $200 per month from October 20, 1910, for the natural life of Helen Leet, based upon an estimated expectancy of the life of Helen Leet. There was, therefore, no legal basis for the allowance of this claim by the County Court.

And we conclude, therefore, that the real estate in question was sold under the order of the County Court, to pay an alleged debt of $12,444.44, which was not a legal claim against the- estate of Frank M. Leet, deceased. And that the County Court was without power or jurisdiction to order a sale of the real estate in question to pay this alleged debt, and that the sale should therefore be annulled. It is therefore ordered that the judgment allowing the claim in question, and the decree of the County Court directing the sale of the real estate to pay such claim, and the order approving such sale be set aside, and the cause remanded for further proceedings consistent with the views herein expressed.

Decree reversed and cause remanded with directions.

Additional Opinion on Petition for Writ of Restitution. „

Mr. Justice Dibell

delivered the opinion of the court.

The County Court of Stark county granted administration on the estate of Frank M. Leet, a deceased and nonresident intestate. Helen Leet filed a claim against said estate, which was allowed in the sum of $14,295.02. It contained three items, the chief one of which was allowed for $12,444.44. The administrator filed a just and true account, which showed that said claim was the only charge against the estate except the costs of administration. The administrator then filed a petition to sell real estate of said deceased in said county to pay said claim and said costs. His widow and heirs at law and the guardian of the minor heir were made defendants and were served by publication. A decree was entered for the sale of said real estate to pay said claim and costs. On May 6, 1911; said administrator sold and conveyed said real estate to Rosa L. Thompson under said decree and on the same day the sale and conveyance were approved by the court. Afterwards the administrator filed a final report and was discharged. On September 18, 1916, William A. Leet, the minor heir at law, sued out of this court a writ of error to' review said proceedings and, after severance, made all the other parties defendants in error, and also brought in Rosa L. Thompson as purchaser and terre tenant, under rule 9 of this court. (137 Ill. App. 622.) Plaintiff in error assailed all the proceedings from the grant of administration to .the order approving the sale. On April 19, 1917, we filed an opinion, wherein we approved the grant of letters, but held that the chief item of the claim, above specified, was not a valid charge against the estate. We set aside the allowance of the claim, the decree of sale, the sale and order approving it, and remanded the cause. (Bocock v. Leet, ante, p. 402.) The administrator petitioned for a rehearing. We denied that application at the October term, 1917.

On November 22, 1917, at said October term, said plaintiff in error and Lida L. Leet, one of the defendants in error, filed their petition herein for a writ of restitution against Rosa L. Thompson and Mary J. Stoughton, and all persons in possession of said premises under either of them, requiring them to surrender possession of said real estate to the petitioners. The petition, which was verified, set up many facts appearing from the record and our decision, and other matters not in the record, such as that Mrs. Thompson took possession of the real estate after the confirmation of the sale to her; that in 1912 she conveyed the premises to Mrs. Stoughton, and that the latter has ever since been in possession and claims the title to said real estate; that her only title and claim of title is under Mrs. Thompson, and that neither of them have any right except under said decree of sale and confirmation by the County Court, and that ■ Mrs. Thompson and Mrs. Stoughton are sisters, and were sisters of Frank M. Leet, now deceased, and that Mrs. Thompson is the Eosa L. Thompson whose name appears in an exhibit attached to the claim of Helen Leet above referred to. A brief has been filed in opposition, but whether for. all the defendants in error, or only for the administrator, is uncertain. As the petition for the writ of restitution was filed at the same term at which we denied the petition for a rehearing, we do not doubt that we are still authorized to take any proper action between those who have been before this court.

A writ of restitution against Mrs. Thompson would be of no avail for she has not been in possession since 1912, according to the averments of the petition. It shows that Mrs. Stoughton was the terre tenant when this writ of error was sued out and that she had then been in possession for some 4 years. She was not made'a party here, nor notified of the pendency of this suit in this court. We cannot hold that she was bound at her peril to watch the docket of this court during the entire minority of plaintiff in error so as to ascertain if he at any time sued out a writ of error, and to voluntarily appeal when he did so, and protect her interests. The suing out of a writ of error is the commencement of a new suit, and the assignment of errors is the declaration of plaintiff in error. Clowry v. Holmes, 238 Ill. 577; George v. George, 250 Ill. 251; Cass v. Duncan, 260 Ill. 228; Berry v. Turner, 279 Ill. 338. We have no jurisdiction to grant plaintiff in error any relief outside of his assignments of error.

Although it is a new suit, yet it is not an original suit in this court, in which new issues of fact may be framed. Its only office is to try the validity of the proceedings had in the court below, and to determine whether reversible error is found therein. The questions of fact whether Mrs. Thompson took possession of this real estate, whether she conveyed the same to Mrs. Stoughton, whether the latter took possession, and whether Mrs. Stoughton has any title to said lands except under said administrator’s sale and deed, are none of them presented by the assignment of errors, nor by the record filed here for review. Mrs. Stoughton was not a party in the court below, and was not a defendant in error here, and she has never had an opportunity to defend her rights in this real estate. She has a right to have issues formed upon such questions and to present witnesses before the tribunal which tries such issues. The Supreme Court has sent issues to the Circuit Court to be tried by a jury, and to a commissioner to take and report testimony with his conclusions, but those were in causes originating in the Supreme Court. In Dunning v. Bathrick, 41 Ill. 425, such a writ as here asked was sought and refused, the court saying that to allow such a writ “might become a precedent attended with much embarrassment and injurious consequences in practice.” Our .attention is called to no decision in this State which enforces a power in an Appellate tribunal to do what is here sought. In some other jurisdictions such applications have met with favorable consideration, but in our opinion the practice in this State does not give us that authority.

Under this petition counsel differ as to the meaning of words used in our.former opinion, and one side asks us to modify them. We sustained all that preceded the allowance of the claim, and held that said claim and the exhibit attached thereto showed that the principal part of the sum allowed was not a valid charge against the estate, and therefore the decree based thereon must fall and with it 'all subsequent proceedings. We remanded the cause that the other parts of the claim might be again tried, and that administration might thereafter proceed in due course. We were not choosing our language with reference to the interests of Mrs. Stoughton, who was not -before the court. The petition is therefore denied.

Petition denied.


author: Mr. Justice Niehaus

text:
    George W. Brokhausen, Appellee, v. Ford Motor Company, Appellant.
    Gen. No. 6,462.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Stephenson county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed' and remanded.
    Opinion filed November 8, 1917.
    Rehearing denied April 10, 1918.
    Statement of the Case.
    Attachment proceedings by George W. Brokhausen, plaintiff, against Ford Motor Company, defendant, to recover an amount claimed to be due plaintiff for commissions as agent for defendant, under a written contract of agency. From a judgment for plaintiff for $384.22, defendant appeals.
    •Leslie B. Bobertson, of Detroit, Mich., Depress, Buckingham & Eaton, of Chicago, 111. and Elwyn B. Shaw, of Freeport, 111., for appellant.
    Charles H. Green, for appellee.

      Abstract of the Decision.
    1. Appeal and error, § 913

      —when bill of exceptions deemed to have been certified on daté of purported filing. A bill of exceptions signed by a trial judge under date of October 31st and preceded by a certificate of the clerk, which said that the bill of exceptions was filed October 30th, and followed after the certificate of the judge by the filing by the clerk on October 30th, must be construed as having been certified on October 30th, the date 31st being a mistake.
    2. Appeal and error—nonnecessity of dating certificate of bill of exceptions. It is unnecessary that the trial judge date his certificate to a bill of exceptions.
    3. Appeal and error, § 963*—how certified record may not be impeached. A certified' record containing a bill of exceptions cannot be impeached in the Appellate Court by affidavits.
    4. Appeal and error, § 944*—where error in bill of exceptions must be corrected. Any error in a bill of exceptions must be corrected in the trial court.
    5. Principal and agent, § 79*—what is condition precedent to recovery of added commissions under automobile agency contract. Under a contract of agency for the sale of automobiles, providing that it is agreed that certain added commissions shall not be paid the agent until the latter furnishes satisfactory evidence to the principal that all commissions and " added commissions, due or owing, or which may later Become due or owing, the sublimited agents under the agent, have been fully paid, or until satisfactory arrangements with the principal for insuring payment of such commissions to the subagents have been made, it is necessary that the agent prove, as a condition precedent to his right to recover for the commissions claimed, that he has furnished to the principal satisfactory evidence that there were no commissions due the sub-agents, or which might later become due to them, or to prove satisfactory arrangements with the principal as to insuring their payment.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    J. J. Kirby, Appellee, v. Louis Legacy et al. John F. Judy et al., Appellants.
    Gen. No. 6,424.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mortgages, § 279

      —when fraud in proeurance of release of trust deed not shown. On a bill to foreclose a trust deed, evidence held insufficient to show- fraud in proeurance of a release of the trust deed.
    2. Notice, § 5*—when innocent purchaser for value of land protected by record. Persons who deal with reference to the title to real estate have a right to rely upon what is disclosed by the record, and an innocent purchaser for value, who buys on faith of the record, is protected to the extent of what the record discloses, and his rights are not affected by any interest in real estate which the record does not disclose, and of which he had no notice, no- matter how meritorious such interest may be.
    Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. Deselm, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed November 22, 1917.
    Rehearing denied April 9, 1918.
    Statement of the Case.
    Bill by J. J. Kirby, complainant, against Louis Legacy, trustee, John F. Judy and Farmers & Merchants State Bank of Attica, Indiana, defendants, to foreclose a trust deed. From a decree of foreclosure, defendants Judy and Farmers & Merchants State Bank of Attica appeal.
    H. H. Whittemore, for appellants.
    E. P. Harney, for appellee; A. L. Granger, of counsel.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Dibell

text:
    The People of the State of Illinois, Defendant in Error, v. Martin Svete, Plaintiff in Error.
    Gen. No. 6,427.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Criminal law, § 580

      —when error in remarks by court deemed waived. If a motion for new trial is made by defendant in a criminal case, and the grounds thereof are stated in writing, the defendant is limited to those reasons and all other errors are deemed waived, such as impropriety in remarks by the court.
    2. Criminal law, § 431*—when question of error in orally directing jury to return to jury róom and amend verdict not saved for review. The point that the court erred in orally directing the jury in a criminal case, upon its returning to the court room with a verdict finding the defendant guilty1 under a certain number of the counts in the indictment without specifying which ones, to return to the jury room and amend their verdict by giving the number of the counts under which they found the defendant guilty, is not saved for review where the only objection made at the time, and later in the motion for a new trial, was that it was error to direct the jury to amend the verdict.

      Error to the Circuit Court of Lake county; the Hon. Claibe C. Edwards, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Rehearing denied April 9, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Martin Svete, defendant, for unlawfully selling intoxicating liquor in anti-saloon territory. From a judgment of conviction under five counts, imposing a fine of $75 and sentencing him to imprisonment for 20 days under each count, and ordering confinement in the county jail until the fine and costs are paid, defendant brings error.
    George W. Field, for plaintiff in error.
    James G. Welch, for defendant in error.

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

   Mr. Justice Dibell

delivered the opinion of the court.

3. Criminal law, § 583*—waiver of assignments of error not argued. Assignments of error, in a criminal case, which are not argued are deemed waived.


author: Mr. Justice Dibell Per Curiam.

text:
    The People of the State of Illinois, Defendant in Error, v. Philip Goldberg, Plaintiff in Error.
    Gen. No. 6,477.
    1. Criminal law, § 103

      —what is effect of plea of not guilty. Under the Criminal Code, div. 13, sec. 3 (J. & A. ¶ 4120), providing that it shall be sufficient, without any other form, for the defendant to declare orally that he is not guilty and that such plea shall constitute the issue between the People and the prisoner, the plea of not guilty dispenses with all other pleas and forms and permits all meritorious defenses to be made thereunder.
    2. Criminal law, § 103*—right to claim immunity from prosecution under plea of not guilty. A defendant in a criminal case is entitled to the benefit of claimed immunity from prosecution under a plea of not guilty.
    3. Criminal law—when order as to immunity from prosecution does not protect from prosecution, for illegally selling liquor. Under the Criminal Code, div. 1, secs. 31-34 inc. (J. & A. ¶¶ 3517-3520 inc.), relating to the offense of bribing an officer and make such bribery a penal offense as against both the officer receiving the bribe and the person giving it, and section 35 (J. & A. ¶ 3521), providing that whenever at an investigation before a grand jury concerning any offense named in the preceding sections it shall appear that another person is a material witness and that his testimony would tend to incriminate him, the court may cause an order of immunity from prosecution to be entered and thereupon the witness shall be compelled to testify, and, if he shall testify, such order shall forever after be a bar to any indictment, information or prosecution against him for such matters, an order granting immunity from prosecution to a witness appearing before a grand jury investigating a charge of bribery by the witness of a prosecuting attorney to not prosecute criminal cases for illegally selling intoxicating liquor, protects him only against prosecution for bribery and not for illegally selling liquor.
    4. Criminal law, § 312*—when defendant may not complain of failure of court to instruct jury. The defendant in a criminal case cannot complain of the failure of the court to instruct the jury that the evidence of certain witnesses was excluded, in the absence of the jury from the court room, where he does not proffer an instruction on the subject.
    5. Criminal law, § 416*—when defendant cannot complain of erroneous admission of evidence. In a prosecution for the illegal sale of intoxicating liquor, defendant cannot complain on appeal of error in introducing evidence, of sales after the date of the return of the indictment, where he fails to make objection in the trial court.
    6. Intoxicating liquors, § 162*—when instruction on non-necessity of proving specific day and year of sale not reversibly erroneous. In a criminal prosecution for the sale of intoxicating liquor in less quantities than one gallon without a license, an instruction that it was not necessary that the specific day and year be proven, if the jury believed beyond a reasonable doubt that it was within a year and a half next previous to the date when the indictment was returned, and that accused could be found guilty under any one count for each sale, proved beyond a reasonable doubt, but not stating that the 'sales without a license must be in less quantities than one gallon, was not reversibly erroneous, where the instruction immediately preceding it was correct and contained the requirement, and there were only fifty counts in the indictment and proof of over one hundred and fifty sales of whisky in pints and half pints and by the drink.
    7. Indictment and information, § 39*—when names are idem sonans. The names “Philip Goldberg” and “Philup Goldberg” in an indictment are idem sonans.

    8. Intoxicating liquors, § 162

      —necessity of reversal or affirmance in whole of judgment of conviction based on different counts. The judgment of conviction of the County "Court, in a prosecution for the illegal sale of intoxicating liquor, in less quantities than one gallon, without a license, based on different counts of an indictment, is so far a unit that it must be either reversed in whole or affirmed in whole by the Appellate Court.

      9. Criminal law, § 577*—when error in incorrectly naming defendant in count of indictment waived. The error, in namin" the defendant in a criminal case as “Philip Holdberg,” in one of several counts in an indictment for illegally selling intoxicating liquor, instead of as "Philip Goldberg,” is waived where the question is not raised in the trial court.
    10. Intoxicating liquors, § 161*—when judgment in criminal prosecution for illegally selling is not excessive. A judgment, under fifty counts of an indictment for illegally selling intoxicating liquor in less quantities than one gallon without a license, fining defendant $50 under each count and sentencing him to 10 days’ imprisonment in jail under each of ten counts, is not excessive.
    On Petition fob Rehearing.
    Criminal law; § 414

      —when question that record does not show that grand jury were sworn may not he raised. The defendant in a prosecution for the illegal sale .of intoxicating liquqr, who pleads not guilty in the Circuit Court without making any motion to quash the indictment for any lack of showing in the record that the grand jury were sworn, and, after transfer of the record to the County Court, does not raise the question, and does not raise the question in his briefs on appeal to the Appellate Court, cannot be heard to raise the question for the first time in his petition for rehearing.
    Error to the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Rehearing denied April 10, 1918.
    Rice, Lowes, O’Neil & Richards, for plaintiff in error; Francis M. Lowes, of counsel.
    James G. Welch, for defendant in error; E. V. Orvis, of counsel.

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

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, samp topic and section number,

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

   Mr. Justice Dibell

delivered the opinion of the court.

On April 10, 1917, Philip Goldberg was indicted in the Circuit Court of Lake county for unlawfully selling intoxicating liquor in less quantities than one gal-Ion. He pleaded not guilty in said court. Afterwards the cause was certified to the County Court for trial. Afterwards defendant again pleaded not guilty, and still later he filed a special plea in writing, in which he" claimed immunity from prosecution. An oral demurrer to that plea was sustained. The cause was tried by a jury and defendant was convicted and sentenced to fine and imprisonment in the county jail. This writ of error brings that judgment in review.

Section 3 of division 13 of the Criminal Code (J. & A. ¶ 4120), provides that it shall be sufficient, without any other form, for the defendant to declare orally that he is not guilty and that that plea shall constitute the issue between the People and the prisoner. In Hankins v. People, 106 Ill. 628, it is said of that statute: ‘1 This provision in terms dispenses with all other pleas and forms, and clearly permits all meritorious defenses to be made under the plea of not guilty. The statute has dispensed .with all others than that plea, unless it be pleas in abatement, etc.” That decision has been frequently followed. In Newlin v. People, 221 Ill. 166, a burglary case, defendant’s only plea was not guilty, yet he was held entitled to immunity and to be discharged on . motion because of matters which had occurred after his indictment. There are numerous other like cases. The bill of exceptions here shows that counsel for defendant told the trial court that he considered that he was entitled to the benefit of the supposed immunity under the plea of not guilty. We are of opinion that this view is correct. The court therefore did not err in sustaining the demurrer to the special plea.

At the trial defendant offered to prove the facts relied upon as furnishing him immunity from prosecution and the court sustained an objection to that offer, and this presents the principal question in the case. The substance of the offer was to prove that in March, 1917, after the return of the indictment now under consideration, the Attorney General of the State and his assistants were investigating before the grand jury of Lake county a charge of bribery against James G. Welch, State’s Attorney for Lake county, and that they considered Philip Goldberg and others material witnesses on that charge, and appeared before the Circuit Court and showed the court that the evidence required of said witnesses would tend to incriminate them, and thereupon obtained from the court an order requiring each of said' witnesses to appear before the grand jury and testify in that investigation and releasing each of them “from all liability to be prosecuted or punished on account of any matter to which they shall be required to testify”; that thereafter said Philip Goldberg did appear before said grand jury and testified under oath in answer to questions put° by the Assistant Attorney General and by members of the grand jury to the effect that, pursuant to solicitation by said State’s Attorney, he met said State’s Attorney at an appointed place with defendant’s father and was then told by the State’s Attorney that there were many charges pending against said Philip Goldberg for having sold liquor in quantities less than one gallon contrary to statute; that there were some five hundred charges against him, each of which might carry a jail sentence, and that heavy fines might be imposed, and that it would cost him $1,000 to be relieved from such prosecution; that $500 was offered and finally $750 was agreed upon as sufficient and was paid to the State’s Attorney; that Philip Goldberg then asked the State’s Attorney what security he would have that he would not be molested in the future, and that the State’s Attorney told him he would see that no harm came to him; that thereafter he again met the State’s Attorney by appointment and was informed by the latter that he must have $500 more, as there were other parties to be taken care of besides himself in order to prevent prosecution upon these five hundred charges, and that he refused to make further payment; and that “the offenses set out in the indictment and to which proof has been offered here are the same as those mentioned by the testimony of the witnesses before the grand jury.” Sections 31 to 34 inclusive, of division 1 of the Criminal Code (J. & A. ¶ 3517-3520 inc.), relate to the offense of bribing an officer and make such bribery a penal offense as against both the officer receiving the bribe and the person giving it; and the next section (J. & A. ¶ 3521) provides that whenever at an investigation before a grand jury concerning any offense mentioned in the four preceding sections, it shall appear that another person is a material witness and that his testimony would -tend to incrimínale himself, the court may cause an order to be entered, like the order here in question, and thereupon such witness shall be compelled to testify ‘1 and if he shall testify such'order shall forever after be a bar to any indictment, information or prosecution against him for such matters. ’ ’ Defendant claims that under said statute and said order of the Circuit Court and his compliance therewith he was relieved from further prosecution in this case. That statute was construed in People v. Argo, 237 Ill. 173. There the grand jury were investigating a charge of bribery: A like order was made by the court releasing Argo from prosecution or punishment on account of any matter to which he might be required to testify before said grand jury upon said investigation of the charge of bribery. Questions were propounded to him, the answers to which might have a tendency to convict him of gambling and of keeping a gambling house in violation of the Criminal Code. He claimed his privilege and declined to answer and was brought before the court on a charge of contempt in refusing to answer said questions and was convicted, and that conviction was confirmed by the Appellate Court, and that cause was removed to the Supreme Court. It was there held that the immunity authorized by said statute only applies to the offense of bribery and that, when Argo was questioned to ascertain if he had been guilty of gambling and other offenses, he properly claimed his privilege and refused to answer, because that order would only give him immunity for any offenses of bribery, which he might there testify he had committed. Bribery requires the action of two persons, one to pay the bribe and the other to receive it, and if it is sought to prove the guilt of one by the testimony of the other obviously he would be incriminating himself, and the purpose of this statute was to relieve him from prosecution for what he so revealed. The court there said : “We hold that the immunity order did not, and legally could not, protect the plaintiff in error from indictment and prosecution for any offense not expressed in the four sections of the statute preceding the one under which the order was entered, and that he had a right to claim his constitutional privilege as to all questions which directly or indirectly tended to connect him with any offense other than those defined in the sections of the statute above referred to.” It follows that this order, made in the Circuit Court of Lake county, gave defendant immunity from prosecution for bribery of the State’s Attorney, but, if he was questioned before the grand jury as to whether he had violated the law of the State in relation to the sale of liquor, he had a right to claim his privilege and refuse to answer, but, if he answered, he did so at his peril. Therefore said order and his compliance therewith did not give him immunity from this prosecution.

It is contended that without reference to said statute the law would give defendant immunity. We think that contention is disposed of by what was said in the Argo case, supra. But it is to be further noticed that defendant did not offer to prove that he was asked-before the grand jury whether he had violated the statute relating to the sale of intoxicating liquor in less quantities than one gallon without a license, nor that he gave any such testimony before the grand jury. The general words used by counsel in the offer to prove would he fully covered if he had been asked before the grand jury if this indictment was pending, against him charging him with the illegal sale of intoxicating liquor.

The jury were excluded while defendant made this offer of proof, and after that was disposed of defendant moved to exclude' the evidence of a number of witnesses, and the evidence of three witnesses was excluded before the jury returned. Defendant now argues that it was error not to inform the jury that said evidence was excluded. Defendant knew the jury were not present when he made this motion and when it was granted, and if he wished an instruction on that subject he should have asked it, and he did not do so and therefore cannot complain.

The point is made that the People’s witnesses were interrogated in chief concerning sales made during “the last year and a half,” and that this included some two months after the return of the indictment, and therefore it could not be known how many of such sales were before the .return of the indictment. As to nearly every witness, before the examination was completed, the inquiries were specially directed to the period of a year and one-half immediately before February 21,1917, the date of the return of the indictment. If defendant had objected, it would have been error to admit proof of any sales after that date, but no such objection was made. We find from a careful examination of the record proof of over one hundred and fifty sales during the eighteen months preceding the indictment, and these were of sales of whisky by the pint, half pint and drink.

The 9th instruction, given for the People, related to the subject that it was not necessary that the specific day and year of a sale need be proven by a witness, if the jury believed beyond a reasonable doubt that it was “within a year and a half next previous to February 21, 1917, the date when said indictment was returned,” and that he could be found guilty under any one count for each sale, proven beyond a reason-1 able doubt, but it did not say that such sale of intoxicating liquor without a license must be in less quantities than one gallon. The instruction was perhaps defective in that respect, but the instruction immediately preceding it was in the language of the statute and contained that requirement, and we are of the opinion that the sale of intoxicating liquor referred to in said instruction No-. 9 would be understood by the jury to mean the sales referred to in the last preceding instruction, and as there were only fifty counts in the indictment and as there was proof of over one hundred and fifty sales of whisky in pints and half pints and by the drink, we think the conviction should not be reversed because of that slight defect in the 9th instruction.

It is argued that it was error to enter judgment under the 22nd and 29th counts. The 29th count gave defendant’s name as “Philup Goldberg.” We are of opinion that this was idem soncms. The 22nd count gave the name of the defendant as “Philip Holdberg.” This question was not raised at all in the trial court. If it had been, the People could have dismissed that count. If we hold that defect fatal here, we must not only reverse the conviction under that count, but under the forty-nine other counts, under the rule stated in People v. Gaul, 233 Ill. 630, where it is held that the judgment of thé County Court, based on different counts of an information, is so far a unit that it must either be reversed in whole or affirmed in whole by the. Appellate Court. It is also worthy of note that nearly every witness who testified for the People to sales of whisky and beer to him by defendant pointed him out as he was seated in the court room and said that that was the man of whom he purchased the liquor. As this defect could have been cured in the trial court, even after verdict, by dismissing that count, and cannot be cured here, except by reversing the entire judgment, we must consider it waived by failure to raise it in the trial court.

It is argued that the judgment is harsh and excessive. Defendant was convicted under fifty counts, wg,s fined $50 under each count, and was sentenced to 10 days’ imprisonment in jail under the last ten counts of the indictment. It cannot be said that a fine of $50 and imprisonment of 10 days in jail is an excessive punishment for a .violation of this law. If the total judgment seems excessive, it is so because defendant has been guilty of so many violations of the law. The proof would have sustained a conviction under many more counts.

The judgment is affirmed.

Affirmed.

On Petition for Rehearing.

Per Curiam.

In his petition for a rehearing plaintiff in error claims that the record of the Circuit Court filed in the County Court does not sufficiently show that the grand jury were sworn. He pleaded not guilty in the Circuit Court without making any motion to quash the indictment for any lack of any showing of that kind in the record. After the record had been transferred to the County Court, he did not raise the question there where the insufficiency of the record could have been supplied. He never raised the question in the County Court. He did not raise the question in his briefs in this court. We are of the opinion that he cannot be heard to first raise that question in his petition for a rehearing. The indictment begins “The grand jurors chosen, selected and sworn,” etc. The petition for a rehearing criticizes the Argo case [237 Ill. 173] and our application of it. We feel bound to follow the language of that decision. The petition for rehearing is denied.


text:
    The People of the State of Illinois, Defendant in Error, v. Melvin Sweetland, Plaintiff in Error.
    Gen. No. 6,482.
    1. Criminal law, § 373a

      —what is final judgment not subject of vacation. A judgment of the County Court, in a criminal prosecution for the sale oí intoxicating liquor without a license, on one count of the indictment, upon a plea of guilty to such count, and continuing the remaining counts to a certain term, is a final judgment, and consequently the court has no jurisdiction P-t an intermediate term to entertain a motion to vacate the judgment on such single count, to withdraw the plea of guilty and to enter a plea of not guilty.
    2. Criminal law, § 14*—what are misdemeanors. Misdemeanors comprise all offenses, lower than felonies, which may be the subject of indictment.
    3. Criminal law, § 93*—necessity of informing accused of effect of plea of guilty in trial of misdemeanor. The Criminal Code, div. 13, sec. 4 (J. & A. If 4121), providing that where a party pleads guilty, such plea shall not be entered until the court has fully explained to the accused £he consequences of entering such plea, after which, if the party persists in pleading guilty, such plea shall be received and recorded and the court shall proceed to render judgment, and where the court possesses any discretion as to the extent of the punishment it shall be its duty to examine witnesses as to the aggravation or mitigation' of the offense, applies to misdemeanors, as well as to felonies.
    4. Intoxicating liquors, § 161*—when judgment on plea of guilty to illegal sale of is excessive. A judgment, on a plea of guilty to a count charging the illegal sale of intoxicating liqv<™ for the highest fine and severest punishment which can be imposed upon a single count under section 2 of the Dramshop Act (J. & A. If 4601), is excessive where the evidence tends only to show a single sale and there are no circumstances of aggravation.
    5. Criminal law, § 599*—when case should be reversed and cause remanded. A judgment rendered on a plea of guilty in a criminal case should be reversed and the cause remanded for further proceedings where the court fails to advise the accused of the effect of the plea.

      On Petition fob Rehearing.
    Cbiminal law, § 414

      —when question that record does not show that grand jury were sworn may not he raised. A defendant in a criminal case cannot complain of the failure of the record of the Circuit Court which is filed in the County Court, where the trial is held, to show that the grand jury were sworn, where he, does not raise such question in the trial court.
    Error to the County Court of Lake county; the Hon. David T. Smiley, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed February 12, 1918.
    Rehearing denied April 10, 1918.
    Ralph J. Dady, for plaintiff in error.
    James Gr. Welch, for defendant in error.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

Dale Sweetland and Melvin Sweetland, father and son and druggists at Highland Park, were indicted in the Circuit Court of Lake county under twenty counts, charging sales of intoxicating liquor without a license. They pleaded not guilty and the cause was certified to the County Court for trial. A change of venue was taken from the county judge of that county and a county judge of another county tried the cause. At a certain stage of the trial, the indictment was dismissed as to Dale Sweetland and Melvin Sweetland pleaded guilty to the first count of the indictment and was fined $100 and sentenced to 30 days’ imprisonment in the county jail, and the remaining counts were continued from the April term, 1917, to the October term, 1917, of said court. Defendant excepted to the judgment and obtained a bill of exceptions of what had occurred at that trial. That April term adjourned 4 days later. Thereafter, at the June term, defendant appeared by other counsel and entered a motion to vacate the judgment on the first count, to withdraw the plea of guilty, and to plead not guilty. That motion was heard and denied, and a bill of exceptions was taken of the showing made upon that motion. This is a writ of error to review said proceedings.

If the court had jurisdiction at said June term to vacate said judgment under the first count, then we are of opinion that the showing made and not disputed required the court, in the exercise of a sound judicial discretion, to grant the motion and vacate the judgment and set aside the plea of guilty, under the principles laid down in Krolage v. People, 224 Ill. 456; and People v. Walker, 250 Ill. 427. Defendant contends that the court did have such jurisdiction, because under People v. Gaul, 233 Ill. 630, a judgment of the County Court upon different counts in a criminal case is a unit, and he argues that therefore the court did not have power to enter a judgment on one count until a judgment was entered as to all the counts. Our view is that the judgment at the April term was a final judgment, and that the question what effect that judgment had upon the other counts, not formally disposed of, is a matter not before us in this record. That question is considered by us in People v. Huyvaert, 209 Ill. App. 40, at this term. We hold that the court had no jurisdiction at the June term to vacate the judgment of the April term, and therefore the court properly denied the motion made at the June term.

Section 4 of division 13 of the Criminal Code (J. & A. ¶ 4121) provides that where a party pleads guilty, such plea shall not be entered until the court has fully explained to the accused the consequences of entering said plea, after which, if the party persists in pleading guilty, such plea shall be received and recorded and the court shall proceed to render judgment; and that where the court possesses any discretion as to the extent of the punishment, it shall be the duty of the court to examine witnesses as to the aggravation or mitigation of the offense. The record of this judgment is silent as to there having heen any compliance with this section. We are not required by this record to decide whether, in the absence of anything else appearing, it would be presumed that the court did or did not comply with this statute, for the reason that by the bill of exceptions it is' certified that it contains all the proceedings in said cause, and everything said by the court and the defendants and their attorneys, during the proceedings and including the time when Melvin Sweetland pleaded guilty and judgment was entered. It therefore affirmatively appears that there was no attempt to comply with any part of the statute above cited.

Misdemeanors comprise all offenses, lower than felonies, which may be the subject of indictment. Walsh v. People, 65 Ill. 58. This was an indictment. It is argued that this statute applies to felonies only and not to misdemeanors. We can find no ground for so holding. The cases where the statute has been discussed by our Supreme Court were felonies, so far as we are advised, but that does not exclude misdemeanors from the operation of the statute. All of the provisions of that division of the Criminal Code appear to us to apply equally to felonies and misdemeanors, except where the one word or the other is used alone. In Berliner v. State, 6 Tex. App. 181, it was held that the provision of the statute on that subject in Texas applied only to felonies, but their statutory provision is not set out, and we must presume that the court meant that its language applies only to felonies. We find no such language in our statute, nor can we construe the statute as applying only to felonies simply because in some counties courts have omitted to apply it to misdemeanors. In many other counties the statute has been strictly observed and applied to misdemeanors. The bill of exceptions shows that by agreement between counsel the trial began with Dale Sweetland only present, and after the People’s evidence was closed and Dale Sweetland had testified, defendant Melvin then came into court and the proceedings above recited were had. Whether the evidence which the court had heard in the trial before the jury in the absence of Melvin Sweetland should be treated as the evidence required to be heard in aggravation or mitigation of the offense, we think it unnecessary to decide, but, if so, it did not justify the present judgment, which was for the highest fine and the severest punishment which could be imposed upon a single count under section 2 of the Dramshop Act (J. & A. ¶ 4601). The evidence tended to show only a single sale by Melvin Sweetland at his drug store and did not show any circumstances of aggravation.

Por the failure of the court to explain to the accused the consequences of entering his plea of guilty, the judgment is reversed and the cause remanded for further proceedings in conformity with this opinion.

Reversed and remanded.

On Petition for Rehearing.

Per Curiam.

Plaintiff in error asks a rehearing because although the judgment was reversed it was also remanded. He urges that the record of the Circuit Court filed in the County Court purports to be a complete record and does not show that the grand jury were sworn. It is open to question whether the certificate of the circuit clerk to the record filed in the County Court should be construed as broadly as plaintiff in error claims. Plaintiff in error did not raise this question in the court below where, if the certificate to the record of the Circuit Court was incomplete or insufficient, the fault could have been remedied. We are of opinion, therefore, that the cause should be remanded in order that the State’s Attorney may take such steps as will perfect the record if the grand jury were in fact sworn as it says it was sworn in the beginning of the indictment. The petition for rehearing is denied.

Petition denied.


text:
    Henry Guth, Appellee, v. George Haas, Appellant.
    Gen. No. 6,518.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1042

      —how assignments of errors must appear in record. Under rule 12 of the Appellate Court, assignments of errors must be written upon or attached to the record.
    2. Appeal and error, § 1042*—effect of failure, to attach to or

      write in record assignment of errors. If there is no assignment of errors attached to or written on the record, there is nothing to review.

      Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Rehearing denied April 16, 1918.
    Statement of the Case.
    Action by Henry Guth, plaintiff, against George Haas, defendant, to recover damages for injuries to the horse, buggy and person of plaintiff by a collision with defendant’s automobile. From a judgment for plaintiff for $700, defendant appeals.
    Eagleton, Stone & Islet, for appellant.
    Nathan H. Weiss, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

3. Appeal and ebbob, § 1042*—how deficiency in record due to absence of assignment of errors may not be supplied. The deficiency of a record on appeal, due to the failure to attach to or write on the record the assignment of errors, cannot be supplied by printing in the abstract an assignment of errors not in fact upon the record.

4. Appeal and ebbob, § 1042*—when Appellate Court will act upon defect in record on own motion. The defect in the record on review, due to failure to write on or attach to the record the assignment of errors, will be • acted upon by the Appellate Court, on its own motion; when discovered.

5. Appeal and ebbob, § 1711*—when error waived. A supposed error, not assigned, is waived, and is not open to review by the Appellate Court.

6. Appeal and ebbob, § 601*—how question of sufficiency of evidence may. be raised. The question of sufficiency of the evidence to support the verdict or judgment in a case tried by a jury can only be raised by a motion for a new trial.