author: Mr. Justice Barres

text:
    Josephine M. Alsup, Appellee, v. Louisa A. Ray, Appellant.
    Gen. No. 17,646.
    1. Slander—entire conversation. In an action for slander, though plaintiff has a right to prove a repetition of the slander, it is not necessary and is error to admit an entire conversation which includes another slanderous statement.
    2. Evidence—entire conversation. A party is not entitled in the first instance to call for an entire conversation where only part of it is relevant.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 17, 1912.
    Henry W. Wolseley, for appellant.
    Edward H. Morris, for appellee.
   Mr. Justice Barres

delivered the opinion of the court.

This is an action for slander brought by appellee against appellant. . The declaration charges that appellant said of and concerning appellee, “She stole my wardrobe.” Appellee testified to a conversation had between the parties to the suit shortly after it was commenced, in which she claimed the slander was repeated, and that appellant also said to her, “Ton dirty strumpet, how dare you summon me to court!” The court overruled the motion to strike out such statement and the ruling is assigned as error.

Appellee’s counsel seeks to justify the ruling upon the ground that a repetition of the slander was admissible, and appellee was entitled to have the entire conversation. Unquestionably appellee had a right to prove a repetition of the slander, but it was not necessary to that end that an entire conversation, which included other slanderous statements, if made, should have been admitted.

We recognize the rule of evidence that “where part of a conversation is put in evidence by one party, the other is entitled to put in the whole so far as it is relevant.” 2 Wharton on Evidence, sec. 1108. This rule is usually invoked for the benefit of the party against whom the conversation is introduced, and is generally applicable to admissions for the reason that such other parts of the conversation may tend to explain, modify, or even destroy the admission. Chicago City Ry. Co. v. Bundy, 210 Ill. 39, 44. But we know of no rule which entitles a party in the first instance to call for an entire conversation when only a part of it is relevant. Even when the adverse party seeks to call out the whole conversation, it must be confined to the subject matter about which the conversation was called out. Chicago & A. R. Co. v. Thompson, 19 Ill. 578. To prove that appellant had repeated the charge of larceny, it was not necessary to show also that she called appellee a “strumpet.” This epithet in itself, if used, was actionable and calculated to produce quite as much injury to her as the slander relied on. It appears too that it was repeated several times in the presence of many people on the street. There was no proof of special damages. The case was submitted mainly if not wholly on proof that the slanderous words relied on were spoken and published of and concerning the plaintiff. The jury fixed the damages at $1,000. In a case warranting the assessment of exemplary damages, we think it was error to leave in the record for consideration of the jury proof of another distinct and disconnected slander, calculated to stir their feelings and influence them in fixing the amount of damages; and we do not think the error was cured by any instructions on the subject.

In view of this holding we deem it unnecessary to consider the errors assigned upon the instructions complained of. Presumably those subject to criticism will be modified in another trial.

The judgment is reversed and the case remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Ruth Donaldson, Defendant in Error, v. Wellington Hotel Company, Plaintiff in Error.
    Gen. No. 17,671.
    1. Innkeepers—when baggage not converted. A guest left her trunk at a hotel as security for debt and on returning to pay a compromise offer was mistakenly informed in good faith that the trunk was sold. The guest did not demand the property or tender the sum due and brought an action for conversion of the trunk and its contents, which were produced at the trial and tendered to plaintiff on condition that she pay the charges. Held, as there was no proof of plaintiff’s right to possession of the property at the time suit was commenced, there was no conversion, actual or constructive, and the action could not he maintained.

      2. Estoppel—statements made by mistake. Where a guest leaves a trunk at a hotel as security for a bill and on returning to pay the bill is, through mistake, informed that it has been sold, there is no estoppel by conduct precluding the hotel company from proving in an action for conversion that the trunk had not been sold.
    Error to the Municipal Court of Chicago; the Hon. Arthtjb W. Deseem, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed with finding of fact.
    Opinion filed December 17, 1912.
    Gorham & Wales, for plaintiff in error.
    Rudolf Frankenstein, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

For convenience the parties herein will be referred to by the titles used in the trial court.

Plaintiff had been a guest at defendant’s hotel. She owed $22 for her accommodations and left her trunk there as security. About three months afterward in a telephone conversation with defendant’s clerk, she was told that she could adjust her bill for the sum of $12 and have her trunk. A few days later, with the purpose of paying the same, she again called up the hotel and was then informed that the trunk had been sold. This information was given in good faith, but proved to be a mistake. She then brought an action for conversion of the trunk and its contents. Defendant pleaded its statutory lien and right to hold the property until its charges were paid. The trunk and contents were produced at the trial and there tendered to plaintiff on condition that she pay such charges. She had never paid nor tendered them. The court’s finding and judgment was for plaintiff in the sum of $175.

It is apparent that under this statement of facts there was no conversion, actual or constructive, and, therefore, no basis for an action therefor. Presumably, misled by the information that the property had been sold, plaintiff brought the suit on the theory that she had not received due notice of the sale. But the facts were different. There had been no sale, and her bill remaining unpaid defendant still had the right to hold such baggage. It had exercised no wrongful dominion over the property that could be construed into a conversion; and had not waived its lien. Plaintiff made no demand for the property and no tender of the sum due. There was no proof of what was essential to her action, her right to possession of the property at the time it was commenced. Dawes v. Rosenbaum, 179 Ill. 112; Union Stock Yard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill. 554; Owens v. Weedman, 82 Ill. 409.

The misrepresentation that the trunk had been sold was made under mistake in the belief that the property had shortly previous been sold at auction with other property, but a search revealed the mistake. Under such circumstances there was no estoppel by conduct. Wright v. Stice, 173 Ill. 571; Reiss v. Hanchett, 141 Ill. 419. The finding of the court was contrary to the evidence and the law. The judgment, therefore, will be reversed with a finding that defendant is not guilty of conversion as charged in the statement of claim, to the issues raised by which the plaintiff was confined. Walter Cabinet Co. v. Russell, 250 Ill. 416.

Reversed with finding of fact.


text:
    Sarah H. Van Kleeck, Appellee, v. Harry Channon, Appellant.
    Gen. No. 17,706.
    1. Bills and notes—presumption of guaranty. A person writing his name across the back of a note prior to its delivery is presumed to have assumed the liability of guarantor, but the presumption may be rebutted.
    2. Bills and notes-—rebuttal of presumption of guaranty. Where a person indorses a note prior to its delivery, proof must be clear and satisfactory as to a different intention to rebut the presumption that he is a guarantor.
    3. Bills and notes—prima facie case. Where a wife loans money to a corporation at the request of her husband and receives the company’s note with a personal indorsement, in an action against the indorser as a guarantor, the introduction of the note in evidence makes a prima facie case.
    4. Bills and notes—liability of guarantor. Where the secretary, manager and financial agent of a corporation requests his wife to make a loan to the company, obtains her check payable to it, passes the check to the company’s credit, executes with authority the company’s note to the wife therefor, secures a personal indorsement and delivers the note to his wife, the indorser cannot relieve himself of liability as a guarantor by proof of a conversation with the husband at the time of making the indorsement, and the wife has a right to rely upon the presumption that the indorser is a guarantor.
    5. Husband and wife—agency of husband and wife. The mere fact of the relation of husband and wife does not make the husband the agent of his wife in a transaction, where the circumstances tend to support a contrary conclusion.
    6. Bills and notes—payment need not be demanded of guarantor. Where an indorser of a promissory note is liable as a guarantor, it is not necessary to demand payment at maturity before instituting suit against him.
    7. Bills and notes—new consideration not necessary to support guaranty. Where a person indorses a note prior to its delivery, a new consideration is not necessary to support such indorsement as a contract of guaranty.
    Appeal from the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 17, 1912.

      Byron W. Wight, for appellant.
    Hoyne, O’Connor & Irwin, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

The main question in this case is whether appellant could be held as guarantor on certain promissory notes of which a corporate company was maker and appellee payee, and across the back of which appellant had written his name prior to their delivery to appellee. Under such circumstances the presumption of law would be that he assumed the liability of guarantor, but such presumption may be rebutted. De Clerque v. Campbell, 231 Ill. 442, and cases cited.

Appellant sought to overcome it by proof of what was said in a conversation between appellant and appellee’s husband at the time of making such endorsement. Had there been proof that the latter was her agent in the transaction, unquestionably such testimony would have been admissible; but there was no competent proof of such an agency, and the testimony was, therefore, properly excluded.

The record discloses that appellee’s husband was the secretary, manager and financial agent of said company; that it needed money; that he suggested to and requested of his wife that she make a loan to it; that he obtained her checks payable to its order, passed them to the company’s credit, executed with unquestionable authority the company’s notes therefor, secured appellant’s personal endorsement thereon, and then delivered the notes so endorsed to his wife. There was no specific proof that in these transactions he acted as her agent. That he was such could not be inferred from the mere fact that he was her husband (Camp v. Shaw, 61 Ill. App. 66; Wallace v. Monroe, 22 Ill. App. 602), especially when his relations to the company and appellant as one of its officers supported a stronger inference that he was acting as the company’s agent. The contractual relation between appellant and appellee, as determined from these circumstances, did not render such conversation a part of the res gestae as claimed by the appellant, it being with one not shown to be her authorized representative, and, therefore, not part of a transaction with her. It not being binding-up on her, she had the right when the notes were delivered to rely upon the presumption that appellant’s contract was one of guaranty. To rebut such legal presumption, the proof must be clear and satisfactory as to a different intention. Stowell v. Raymond, 83 Ill. 120. A declaration not made to her or her agent, and not authorized by her, could not establish it. The testimony adduced did not tend to show that her husband was acting- as her agent, but tended to support a contrary conclusion. The introduction of the notes made a prima facie case in appellee’s favor, and it not having been overcome the court properly directed a verdict in her favor. Clarke v. Newton, 235 Ill. 530.

We need not consider the other questions urged further than to say that inasmuch as a guarantor’s liability is the same as that of an original maker, it was not necessary to demand payment of appellant before instituting- the suit. Hunt v. Divine, 37 Ill. 137; Allen v. Rightmere, 20 Johns. R. 364. If the debt is not paid at maturity he may be sued at once. Dillman v. Nadelhoffer, 160 Ill. 121. Nor is a new consideration necessary to support such a contract of guaranty. Carroll v. Weld, 13 Ill. 683; Dillman v. Nadelhoffer, supra.

The judgment is affirmed.

Affirmed.


text:
    The Standard Brewery, Defendant in Error, v. Sam Schmalhausen, Plaintiff in Error.
    Gen. No. 17,720.

      Damages—liquidated. A sum stipulated in a written contract in which defendant agreed to purchase of plaintiff all the beer used in his business should be treated as liquidated damages and not as a penalty where actual damage to plaintiff is shown and it is apparent that it could not be definitely ascertained and the circumstances which might affect the dainage must have been known and considered by the parties in fixing such sum.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 17, 1912.
    George F. Barrett and John F. Hass, for plaintiff in error.
    Castle, Williams, Long & Castle, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

The only question raised here is whether the sum stipulated in a written contract between the parties as damages for breach of it, and designated therein as liquidated damages, should be treated as such or as a penalty. The breach relied on was defendant’s failure to observe his agreement to purchase from plaintiff the beer that would be used in his business from May 1, 1909, to April 30, 1911. He ceased to take plaintiff’s beer in July, 1910, and thereafter purchased from others. He had already taken 1,300 barrels on which there was.a profit of about fifty cents a barrel.

Complaint is made that the court refused to modify its charge as requested by defendant and instruct the jury that the sum so designated was a penalty and that no damages had been proven. The court properly refused the request. In fact, the charge was more favorable to defendant than the case warranted, for under it the jury was at liberty to limit their verdict to the loss of profits actually proven. That plaintiff suffered actual damage by way of a loss of profits was shown, and that they could not be definitely ascertained was apparent from the nature of the defendant’s business and the varying circumstances by which it might be affected. These must have been familiar to both parties at the time they entered into the contract, and taken into consideration in fixing a specific sum as the measure of damages that would ensue from a breach of the contract.

We may aptly apply to this case the language of the court in Pinkney v. Weaver, 216 Ill. 185, as follows:

.“Here the parties in their, written contract, in plain terms, expressed their intention that the sum of $300,” ($500 in the case at bar) “should be treated as liquidated damages. The circumstances which should enter into consideration in the ascertainment and computation of the damages that would actually or most probably result from a breach of the contract were well known to the contracting parties. Fraud or circumvention is not suggested, and there is nothing to indicate that the amount is unconscionable or disproportionate to the damages apparently likely to result from the breach. It was not error to treat the sum named as liquidated damages.”

The cases there referred to are applicable here, and need not be cited herein.

The judgment will be affirmed.

Affirmed.


author: Mr. Justice F. A. Smith

text:
    Marguerite Springer, Executrix, Defendant in Error, v. John T. Simpson, Plaintiff in Error.
    Gen. No. 17,622.
    1. Appeals and errors—municipal court. A matter not stated in an affidavit of merits stating the nature of his defenses cannot be urged by defendant in the appellate court as a ground of reversal.
    2. Partnership—individual liability. Where a lease with an alleged copartnership is signed by one member only, action may be maintained on the covenants thereof against such member alone.
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 17, 1912.
    Ullman, Hoag & Davidson, for plaintiff in error.
    E. M. Bumphrey, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Warren Springer sued the plaintiff in error, John T. Simpson, in the Municipal Court of Chicago for damages to a building owned by Springer, caused by an explosion in the basement of the building which injured the building. A portion of the basement of the building was, on April 30, 1909, leased to the plaintiff in error, Simpson, by Warren Springer. The lease contained covenants and agreements on the part of Simpson not to permit the premises to be used for any purpose that would injure the building of which the demised premises were a part, and that he would not use or permit to be used any burning fluid, and would not put up or use or permit to be used any furnace or forg’e on the premises without the written consent of Springer, and that he would maintain all machinery and appliances permitted in the premises in such manner as not to injure the premises or building or any other property, and covenanted to pay any and all damages to the premises and appurtenances, or to any other property to the first party caused in whole or in part by the act or neglect of said plaintiff in error.

The statement of claim filed by Springer in the action charged that in violation of the covenants and conditions of the lease, plaintiff in error went into possession of the premises, and without the consent of •Springer allowed the demised premises to be used by a subtenant of said Simpson for conducting a business in which Lieber, the subtenant, used an acetylene gas apparatus for welding purposes; that the gas machine exploded, damaging the premises and parts of the building not demised, and that Simpson, after notice, failed to make the needed repairs.

Plaintiff in error, defendant below, filed his affidavit of meritorious defense in-which he averred that he believed he has a good defense to the suit upon the merits to a portion of the plaintiff’s demand as thereinafter stated, and that the nature of the defense was as follows: He admits that an explosion took place on the premises about April 7, 1910, and states that it occurred through no breach of the covenants contained in the lease; that plaintiff waived the covenants in the lease requiring the tenant to procure the written consent of plaintiff to subletting the premises; that plaintiff knew for a long time prior to said explosion that the defendant, plaintiff in error, had sublet a part of the premises to Lieber for repairing metal and machinery, and that Lieber explained to the plaintiff Springer the process for doing repairing and welding, and that plaintiff had full knowledge of Lieber’s presence and the business Lieber was conducting.

It appears that the lease in question bore date of April 30, 1909, and purported to be between Warren Springer as party of the first part, and Simpson-Ash-ton, a copartnership, as the second party. The lease was signed and sealed by Springer and by plaintiff in error in Ms own name. It does not appear that Ash-ton signed the lease. Plaintiff recovered a judgment in the court below for $739.25 damages on a finding of the court, a jury having been waived.

Plaintiff in error urges as a ground of reversal that a lease running to a copartnership signed by one of the copartners alone did not make it the lease of plaintiff in error. In our opinion the point is-not well taken, and, moreover, it cannot be urged as a ground of reversal for the reason that it was not stated as one of the defenses in the affidavit of the plaintiff in error. Rule 17 of the Municipal Court of Chicago requires the defendant to state the nature of his defense whether by way of denial or by way of confession and avoidance in such manner as will reasonably inform the plaintiff of the defenses which will be interposed at the trial, and evidence only of such defenses as set out in the affidavit shall be admitted on the trial. The defendant cannot be allowed to urge in this court as a defense matters not mentioned in the affidavit or insisted upon in the trial court.

In our opinion, the action could be maintained against plaintiff in error alone upon the covenants of the lease which purported to lease the premises to what is now claimed to be a copartnership of which the plaintiff in error was a member, the lease having been signed by plaintiff in error alone. The entire evidence being considered sustains the claim of the plaintiff in our opinion, and the finding and judgment of the trial court. We do not find in the record any evidence tending to show that Warren Springer waived any of the provisions of the lease, either in writing or by Ms conduct. The judgment is affirmed.

Affirmed.


text:
    Nicola Nicastro, minor by Allessio, his next friend, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 17,684.
    1. Negligence—where city maintains fire house with unguarded openings. Where a child taken into a fire house hy a fireman falls through the pole hole, the city is not negligent, since it is exercising a purely governmental function and owes no duty to the plaintiff.
    2. Cities and villages—city not responsible where fireman takes child into fire house. Where a child taken into a fire house by a fireman falls through the pole hole, the city is not liable, since it was the personal act of the fireman not authorized by the city, and the doctrine respondeat superior does not apply.
    3. Cities and villages—evidence of notice to city. In a personal injury action against the city, where the declaration contains no averment that notice of the alleged accident was served, it is error to permit plaintiff to introduce evidence of such notice over objection of defendant.
    Appeal from the Circuit Court of Cook county; the Hon. William B. Scholeield, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 17, 1912.
    Rehearing denied December 31, 1912.
    William H. Sexton and N. L. Piotrowski, for appellant ; David R. Levy, of counsel.
    A. E. Ferris, for appellee; E. F. Masterson, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of. the court.

This appeal by the City of Chicago is from a judgment in an action on the case brought by Nicola Nicastro, a minor, by his mother as next friend, to recover damages on account of injuries sustained by falling through an unguarded opening on the second floor of the city fire-house at No. 13 Taylor street, Chicago.

The declaration consists of three counts. The first locates the premises at 11 West Taylor street, describes them, and states that the defendant Slater took plaintiff through the window of the fire house to the second floor, and placed him on the floor and allowed him to go at liberty; that it was the duty of defendant to guard the opening in the floor and not permit children of tender years to be upon the premises, and that the plaintiff fell through the hole in the floor and was injured.

The second count is similar, except that it alleges a duty on the part of appellant in the employment of safe and careful employees, but that it was negligent in that regard in employing Slater.

The third count avers that it was the duty of defendants to prevent children of tender years from going on the second floor of the fire building and leaving them unattended, and that they disregarded such duty and were negligent whereby the plaintiff, suffered injury.

The evidence shows that on March 28,1910, the plaintiff, a boy of three years of age, was playing in the alley nearby the fire house in question, and that Frederick Slater, one of the city firemen, took the plaintiff with his sister Emily through the window of the fire house and to the second floor. In the second floor are three holes, each large enough for a man’s body to pass through, with a brass pipe about two inches in diameter extending down from the hole to the floor below. These holes and pipes were used by the firemen who slid down the poles instead of using the stairs for the purpose of enabling them to get downstairs quickly. It further appears from the evidence that the plaintiff, while on the second floor with his sister and Slater, fell through one of these holes to the floor below, striking his head and sustaining the injuries complained of. It is shown by the evidence that the pole hole in question is similar to those in all fire houses in the city, and was in good condition. There was no guard around it. It was not the practice nor is it practicable to place guards around these holes in any of the fire houses of the city.

The jury rendered a verdict in favor of the plaintiff for $1,250. A motion for a new trial was made, which the court overruled. Thereupon a motion in arrest of judgment was made by the appellant which was overruled and judgment entered on the verdict.

It is contended on behalf of the appellant that in maintaining fire houses with unguarded openings through the floors for the expeditious use of firemen, the city was exercising a purely governmental function and owed no duty to the plaintiff in the premises. In our opinion, this contention of the city is sound. Wilcox v. City of Chicago, 107 Ill. 334; Fisher v. Boston, 104 Mass. 87; Brown v. District of Columbia, 25 L. R. A. (N. S.) 98; Blake v. City of Pontiac, 49 Ill. App. 543.

In our opinion the city was exercising a purely governmental function in maintaining the fire house in question, and that the reasonings of the courts in the above cited cases clearly established the proposition of appellant .as to the nonliability of the city for the alleged negligence in maintaining the fire house in the condition shown by the evidence.

The act of the fireman in taldng plaintiff into the fire house and up to the second floor thereof and leaving him unguarded, was merely his personal act not authorized by the city, and for the consequences of that act the city cannot be held liable. The doctrine of respondeat superior does not apply to the case. Wilcox v. City of Chicago, supra; City of Chicago v. Turner, 80 Ill. 419; Culver v. City of Streator, 130 Ill. 238; Craig v. City of Charleston, 180 Ill. 154; City of Chicago v. Williams, 182 Ill. 135; Brown v. District of Columbia, supra.

In view of the conclusion thus reached, it is not necessary for us to discuss the question of notice to the city. It, however, may be said that the declaration contains no averment that notice of the alleged accident had been served upon the city, and it was error to permit the plaintiff to introduce evidence of such notice over the objection of appellant. Erford v. City of Peoria, 229 Ill. 546; Walters v. City of Ottawa, 240 Ill. 259.

The judgment in this case is a joint judgment against the city of Chicago and the defendant Frederick Slater. Inasmuch as we hold it erroneous as to the city of Chicago, the judgment must be reversed and the cause remanded for a new trial.

jReversed and remanded.


text:
    F. L. Rabe, Plaintiff in Error, v. D. B. Lester, Defendant in Error.
    Gen. No. 17,714.
    Landlord and tenant—eviction. Where the evidence shows that the lessee, before the expiration of the lease, vacated the premises, turned the keys over to the janitor and asked the agent to re-rent, and that the lessor entered a few days later to decorate and after-wards re-rented, it does not show an eviction.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 17, 1912.
    Abram L. Myers, for plaintiff in error.
    Charles R. Napier and Charles S. McIlvaihe, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Plaintiff in error, F. L. Rabe, sued the defendant in error, D. B. Lester, in the Municipal Court of Chicago on a lease under seal for rent due the plaintiff in error for the first flat at 4351 Greenwood avenue, Chicago, for the month of September, 1910. The rent reserved was $60 a month, and the suit was for the rent together with $15 attorney’s fees stipulated in the cognovit, and judgment was entered for $75 against the defendant in error. On motion of defendant in error and on his filing an affidavit of defense, the judgment was allowed to stand as security and a jury trial was awarded to the defendant in error. The lease terminated September 30, 1910. It provided that the lessor should have free acess to the premises for the purpose of examining or exhibiting the same, or to make any needful repairs or alterations which the lessor might see fit to make. It also provided that if the lessee should abandon or vacate the premises, the same may be re-let by the lessor for such rent and upon such terms as the lessor saw fit, and if a sufficient sum should not thus be realized after paying the expenses for such re-letting and collecting to satisfy the rent, the lessee agreed to satisfy and pay all deficiency, and if the lessee should remove from, vacate, or cease to occupy the demised premises at any time during the term of the lease, he should, notwithstanding, pay all rent due under the lease and that it should be lawful for the lessor, his heirs, etc., to enter into the premises, and make any repairs, alterations, or do any tinting, papering of walls and ceilings, or painting or varnishing the floors or woodwork which he might see fit to do. The lease further provided that if the lessee has removed from, vacated" or ceased to occupy the premises, or in the event the lessee has failed to sublet the premises for the remaining term of the lease, after having vacated the same with the written consent of the lessor, a re-entry by the lessor or a new lessee should not in any way rélease the lessee from the payment of rent under the terms of the lease.

The defendant in error paid the August rent. It appears that on August 17th, defendant below had started to take his property from the flat, when the plaintiff in error came into the flat. Defendant in error had not talked with the plaintiff in error with reference to moving at any timé prior to August 17th. Defendant in error testified that the plaintiff in error and Mrs. Lester, wife of defendant in error, were talking, and that Mrs. Lester said to the plaintiff in error, “We want to move, and are going to try to cleanup the premises and see if we couldn’t sublet it. We want to re-rent and we want to move,” and that plaintiff in error said if they could sublet it for the time remaining he had no objection. Plaintiff in eror then said, “How about iny September rent?” and Mrs. Lester replied, “You always have had your rent, haven’t you?” and the plaintiff in error said he had, and Mrs. Lester said, “Well, you will get it as usual this month if we don’t subrent the flat. ’ ’ This was all the material conversation between the parties. Defendant in error telephoned the renting agent that he was going to move, and asked him to put up a card, and re-let the flat if he' could. He left the keys with the janitor so that he might if possible get another tenant for him. In the course of two or three days, about August 20th, the plaintiff in error sent decorators to the flat and they calcimined and papered the rooms. The flat remained vacant for the balance of August, and no one as tenant entered the apartment during the month of September, the month for which plaintiff in error claims rent from defendant in error. About the middle of September, a man by the name of Chapin called at the building and saw the janitor in reference to renting the flat. He then saw the real estate agents of plaintiff in error and entered into a lease for the flat dated the 19th day of September, 1910, for a term commencing October 1, 1910, and running until the last day of September, 1911. No one gave Chapin the right to enter the apartment before October 1st. He nevertheless entered into the apartment a few days after he had made his lease. No rent was collected from the apartment for the plaintiff in error for the month of September, 1910.

The defense set forth in the affidavit filed in the case sets np that "on or about the 20th day of August, 1910, the plaintiff (plaintiff in error) entered into and upon said premises, evicting the defendant, and deprived him of any further use or occupancy thereof, and the plaintiff on or about the 15th day of September, 1910, re-rented said premises to a person whose name is unknown to this defendant, and which said person thereupon entered into possession of said premises and has ever since remained in possession and occupancy thereof.”

On the trial, the court refused to instruct the jury to find the issues for the plaintiff and refused to enter-a judgment non obstante veredicto, and overruled a motion for a new trial.

The evidence does not show, in our opinion, an eviction of the defendant in error from the premises, nor does it show any act done by the landlord for the purpose and with the intention of depriving the tenant of the enjoyment of the demised premises. To constitute an eviction of a tenant, he must be put out of the possession either of part or of the whole of the premises demised. The possession must be given up by the tenant in consequence of the acts of the landlord, and the acts must be such as .warrant .and justify the tenant in so doing, or the landlord must have taken the premises forcibly from the tenant. Edgerton v. Page, 5 Abb. Prac. 1. The evidence does not in the least tend to show that there was an eviction of the defendant in error under the above definition of eviction or any other warranted by the law.

There is no evidence in the record tending to show that the plaintiff in error, by consenting that defendant in error might vacate the premises on August 17th, waived any covenant in the lease which obligated the defendant in error to pay the rent during the term.

The judgment in the ease is contrary to the law and the evidence. The motion for a new trial should have been sustained.

The judgment is, therefore, reversed and the cause remanded for a new trial.

Reversed and remanded.


author: Mr. Justice P. A. Smith

text:
    Henry Ruhl, Appellant, v. Richard Gambrill, Appellee.
    Gen. No. 17,722.
    1. Limitations of actions—part payment. The theory upon which part payment of a debt takes a case out of the statute of limitations is that the party making the payment intended by it to acknowledge and admit the greater debt to be due, and if it was not in the mind of the debtor to do this, the operation of the statute will not be affected by the payment.
    2. Limitations of actions—part payment. Payment of a part of a debt is not enough to remove the bar of the statute of limitations unless it is made under such circumstances that a promise to pay the remainder may be reasonably inferred from it.
    3. Limitations of actions—burden of proof. In an action by the payee of a note against the maker, on a plea of limitations and replication of a part payment within ten years next before the commencement of suit, plaintiff has the affirmative of the issue and must prove the averment of his replication by a preponderance of evidence.
    4. Limitations of actions—evidence of part payment. On an issue whether part payments of a note removed the bar of the statute of limitations, the payee testified that four payments were made within ten years before commencing suit, but the testimony was given without entering into details as to the several payments and in such a way as to invoke statements of conclusions rather than a narrative of facts. The maker testified that before making the payment he expressly stated to the payee that the note was outlawed, that he would never recognize it as binding, but that he would pay such sum as he felt morally bound to pay. Held, a verdict for the maker would be sustained.
    Appeal from the Superior Court of Cook county; the Hon. Benjamin W. Pope, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 17, 1912.
    Rehearing denied December 31, 1912.
    Theodore H. Wunderlich, for appellant; John H. Kane, of counsel.
    James E. Munroe, for appellee.
   Mr. Justice P. A. Smith

delivered the opinion of the court.

Henry Kuhl, appellant, a resident of Baltimore, Maryland, brought an action against appellee on the 14th day of June, 1909, upon a promissory note for $1,584.44, dated Baltimore, January 20, 1885, made by appellee, payable to the order of appellant six months after its date. The note, therefore, fell due on the 20th day of July, 1885,—a period of nearly twenty-four years before the beginning of this action.

The declaration consists of a special count on the note and the common counts. The defendant pleaded, first, the general issue to the whole of the declaration; second, to the special count on the note a plea of want of consideration; third, to the whole declaration, that none of the several supposed causes of action therein mentioned accrued to plaintiff at any time within ten years next before the commencement of the suit; and, fourth, to the special count of the declaration the defendant filed a plea setting up a certain statute of the state of Maryland enacted prior to January 20, 1885, by which it was provided that all actions of account, assumpsit, on the case and of debt on simple contract, should be commenced, sued, or issued within three years from the time the cause of action accrued; and that the cause of action sued on was barred by. the statute of Maryland and by the statute of Illinois. Plaintiff, appellant, by replication to each of the third and fourth pleas averred that the defendant made a part payment on the note sued on within ten years next before the commencement of the suit, and that said part payment removed the bar of the statute of limitations.

The execution of the note or the consideration therefor was not questioned on the trial. The matter open to litigation and actually litigated was whether within ten years prior to the 14th day of June, 1909, the day of the commencement of the suit, appellee made to appellant a part payment upon the promissory note under such circumstances as to give rise to the implication of a new promise on the part of appellee to pay the balance of the note. By the pleadings, appellant alleged that appellee made such part payment and appellee alleged that he did not make such part payment. Thus appellant had the affirmative of the issue and was bound to prove by a preponderance of the evidence the averment of his amended replications.

The case was tried before the court without a jury. The only witnesses were appellant on one side and appellee on the other. Each testified in person before the court, and his appearance, demeanor, manner of testifying, degree of intelligence, candor and fairness, or lack of these qualities, came under the direct observation and scrutiny of the trial judge. After hearing the evidence, the court found the issues in favor of appellee.

The note sued upon had four endorsements upon it of alleged payments all in the handwriting of appellant, the earliest of which bore date nearly fourteen years after the maturity of the note. The first endorsement was of $200 cash, under date of June 19, 1899; the second of $50 cash, under date of June 20,1900; the third $250 cash, under date of October 7, 1900; and the fourth of $250 by New York draft, under date of July 6, 1901. Appellant’s testimony is to the effect that appellee made the four payments on the note at the times stated in the respective endorsements, but his testimony was given without entering into details as to the several transactions and in such a way as to involve statements of conclusions rather than a narrative of facts involved in the supposed payments as they occurred.

On the other hand appellee testified that he paid appellant $200 on June 19, 1899; $50 on the next day, June 20, 1899; $250 on October 7, 1900; and $250 by New York draft, mailed by him at Chicago to appellant in Baltimore; that before the making of the first of these four payments and preceding or concurrently with the making of the other three payments, appellee expressly stated to appellant that the note was outlawed, and that appellee never would recognize it as binding upon him or pay anything upon it; but that he, appellee, considered himself morally bound to pay appellant something on account of tlieir old transactions, and would pay appellant such sum, not exceeding altogether $1,000, as appellee felt he should pay appellant, and in our opinion appellant accepted the several payments with the express understanding that none of them should be credited upon the note or should be regarded as made upon the note.

Considering all the evidence offered on the trial, we are of the opinion that plaintiff failed to prove by a preponderance of the evidence, the affirmative issue made by him that appellee made the payments on the promissory note under such circumstances as to give rise to the implication of a new promise on 'the part of appellee to pay the balance of the note. The theory upon which part payment of a debt takes ,a case out of the statute is that the party making the payment intended by it to acknowledge and admit the greater debt to be due. If, therefore, it was not in the mind of the debtor to do this then the operation of the statute will not be affected by the payment.

Payment of a part is not enough unless it is made under such circumstances that a promise to pay the remainder may be reasonably inferred from it. Tippets v. Heane, 1 Cromp. M. & R. 252; Wainman v. Kynman, 1 Exchqr. 118; Lowery v. Gear, 32 Ill. 383; Kallenbach v. Dickinson, 100 Ill. 427; Miller v. Cinnamon, 168 Ill. 447; Brown v. Lathman, 58 N. H. 30.

As the action of the court on the propositions of law would not affect the result we do not consider it necessary to discuss it.

The judgment is affirmed.

Affirmed.


text:
    Pennsylvania, Company operating the Pittsburgh, Ft. Wayne & Chicago Railway, Defendant in Error, v. W. A. Fraser Company, Plaintiff in Error.
    Gen. No. 17,760.
    1. Carriers—demurrage. A demurrage regulation is for the prompt release of ears and is not intended to he so liberal as to defeat the end sought to be attained, but to stimulate the shipper to release cars and thus enable the carrier to serve all shippers.
    2. Carriers—relation between carriers and owner of shipment. Where a person buys a car load of grain dust and after a lapse of time, knowing that demurrage charges were accumulating, authorizes the railroad company to dispose of it, the company becomes the agent of the owner and is bound to use only that degree of skill, care and diligence which the nature of the undertaking and the time, place and circumstances of the performance reasonably demand.
    3. Carriers—due diligence in selling shipment. Where an owner of a car load of grain dust keeps the car out of service an unwarrantedly long time and, demurrage accumulating, authorizes the railroad company to sell it, if it appears that there were practically no purchasers nor any market for the dust at any time after the authorization because of adverse litigation as to the use of it, it cannot be contended that the company did not use due diligence.
    4. Carriers—private sale of shipment. Where demurrage charges accumulate on a car load of grain dust and the owner authorizes the railroad company to sell it by an order not limited as to means, method or price, the company may dispose of the dust at a private sale, and a statute regarding the disposition of unclaimed property has no application.
    5. Carriers—recovery of demurrage charges. Where the owner of a car load of grain dust who knows that demurrage charges were accumulating upon the car, and at what rate, retains the car for an unreasonably long time and finally gives the railroad company a general order to sell the dust, which is sold at private sale but, owing to adverse litigation as to its use, brings but a small price, a demurrage charge of a dollar a day, excluding Sundays and holidays, for the days the car was held after “free time” had expired, less the amount of the sale, may be recovered.
    Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 17, 1912.
    Charles A. Butler, for plaintiff in error.
    Loesch, Scofield & Loesch, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Defendant in error, Pennsylvania Company, sued the plaintiff in error in the Municipal Court for demur-rage for car service on a certain car containing* grain dust, loaded on July 6, 1910, by the J. Rosenbaum Grain Company for the account of plaintiff in error at the East Side Station of the Pennsylvania Company. The suit was to recover charges on the car, accruing from July 11, 1910, to November 30, 1910, excluding Sundays and holidays, at $1 a day. The answers of the defendant to interrogatories filed by the plaintiff, defendant in error, showed that about July 9, 1910, plaintiff in error bought a carload of grain dust on car known as P. R. R. 76,840, and that there was a market therefor from July 6th to November 30th, plaintiff in error admitting in the answers that it had been in the grain business since the first of May, 1902, and was aware in July, 1910, and since then, that railroads in Chicago charged car service on cars held after “free time” had expired. The answers also admitted that on January 4, 1911, plaintiff in error received a wire from E. E. Wright, defendant in error’s agent, and on January 6, 1911, received a wire from some person stating that this car could be held at the Pennsylvania Company’s East Side Station no longer, and as the Pennsylvania Company conld not sell the stuff, it would have to dump it, and asking defendant’s authority therefor. It was also admitted on the trial that a letter dated August 23,1910, from J. H. Knight, agent of the defendant in error, was received by the plaintiff in error, wherein it was stated that the defendant in error had been holding this car since July 9th, awaiting orders from plaintiff in error, and that there was at that time $36 demurrage against it, and asking for orders for its disposition.

No testimony was offered on the trial except on behalf of the defendant in error.

The court below, at the conclusion of the trial, entered a finding and judgment in favor of the defendant in error for $116.

The grounds urged by plaintiff in error for reversal of the judgment are, 1st, that the defendant in error did not use due diligence in disposing of the grain dust in question; 2nd, that defendant in error disposed of the car at a private sale without due notice to the plaintiff in error, and not at a public sale; and 3rd, that the court erred in finding the issues and entering judgment. Upon a consideration of the evidence, we are of the opinion that it shows plaintiff in error gave defendant in error no orders with reference to the car, although such orders were frequently and urgently solicited by the defendant in error. Plaintiff in error knew that demurrage charges were accumulating upon the car, and at what rate. Finally on November 30, 1910, the plaintiff in error gave to the defendant in error authority to dispose of the grain dust contained in the car. Defendant in error thereupon became the plaintiff in error’s agent in disposing of the dust and was bound to use only that degree of skill, care and diligence which the nature of the undertaking and the time, place and circumstances of the performance reasonably demanded. Mechem on Agency, secs. 490, 494, 497 and 502; Bagley v. Findlay, 82 Ill. 524; American Exp. Co. v. Stuart, 134 Ill. App. 390. Defendant in error did not hold itself out to plaintiff in error as an expert in selling grain dust, but acted practically under compulsion after plaintiff in error had kept its car out of service an unwarrantably long time. We think the evidence shows that after the defendant in error received authority from the plaintiff in error to dispose of the grain dust, it did everything in its power and disposed of it on the best possible terms. The evidence shows that there were practically no purchasers for such dust at any time after November 30, 1910, because of much adverse litigation on the use of it, and that there was practically no market for the grain dust after the defendant in error received authority to dispose of it.

We know of no legal reason why the defendant in error should not have disposed of the dust at a private sale as it did. The statute relied upon by the plaintiff in error, regarding the disposition of unclaimed property, has no application to this case. The authority given by the plaintiff in error to the defendant in error to dispose of the dust was not limited as to means, method or price.

The demurrage rate of $1 per day has been held to be a reasonable rate. The object to be secured by the demurrage regulation is the prompt release of cars. It is not intended that .they shall be so liberal as to defeat the end sought to be attained, but to stimulate the shipper to release cars and thus enable the carrier to serve all shippers. Schumacher v. Chicago & N. W. R. Co., 207 Ill. 199; Cleveland, C. C. & St. L. R. Co. v. Propst Lumber Co., 114 Ill. App. 659; Chicago P. & St. L. R. Co. v. Dorsey Fuel Co., 112 Ill. App. 382.

Upon a consideration of the evidence in the case, we are of the opinion that the finding and judgment is sustained by the evidence, and the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley

text:
    V. Marrone and R. Lofaro, Trading as Marrone & Lofaro, Defendants in Error, v. George Ehrat, Trading as George Ehrat & Company, Plaintiff in Error.
    Gen. No. 17,237.
    1. Set-off—subject. A claim for unliquidated damages which does not grow out of the contract or cause of action sued on cannot he set off in an action at law.
    2. Judgment—what for damages on default erroneous. Judgment for want of sufficient affidavit of merits should not be in excess of the amount shown to he due by the affidavit of claim, though there is a claim of interest, where the suit is on an account and judgment is entered without further evidence as to the amount due, there was no settlement of account between the parties, and defendant did not withhold money by an unreasonable and vexatious delay.
    3. Default—damages. Where defendant files a written demand for jury trial when his appearance is entered, the amount of plaintiff’s damages is not admitted by default of defendant for failure to file a sufficient affidavit of merits.
    4. Municipal court—damages. * The municipal court has no power to prevent defendant from having plaintiff’s damages assessed by a jury, if jury trial is demanded by defendant as provided by the Municipal Court Act, § 30.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion refiled December 19, 1912, on rehearing.
    Edward J. Kelley, for plaintiff in error.
    Elbert C. Ferguson, for defendants in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the Municipal Court of Chicago for $852.59 and costs, entered in a fourth class suit in favor of defendants in error, hereinafter called plaintiffs, and against plaintiff in error, hereinafter called defendant, after the court had ordered that the affidavit of merits and set-off filed by defendant be stricken from the files.

The facts are substantially as follows: On July 7, 1910, plaintiffs filed their statement and affidavit of claim, to which was attached a copy of the account sued on. The statement of claim set forth that “plaintiffs’ claim is for goods, chattels and effects before this time sold and delivered by the plaintiffs to the defendant; * * * also for interest on divers sums of money before this time forborne * * *; also for money found to be due from the defendant to the plaintiffs on an account then and there stated between them; * * * to the damage of plaintiffs of $850.” The affidavit of claim stated that “said cause is a suit upon a contract for the payment of money; that the nature of plaintiff’s demand is as stated in the above statement of claim and a copy of the account or instrument sued on hereto attached and made a part hereof; and that there is due to plaintiffs from the defendant * * * the sum of $825.42, and interest thereon at the rate of - per cent, per annum from 190— until date of judgment.” The copy of the account sued on was as follows:

“George Ehrat & Company,

To Marrone & Loparo, Dr.

April 18, 1910.

50 e/s Eoman Cheese 10867# at 26# .. .$2,825.42

April 15 By cash in advance on cheese.. 2,000.00

Balance due____$ 825.42”

On October 22, 1910, the appearance of defendant was entered by his attorney in which a request was made for further time in which to file an affidavit of merits, and in which it was stated, ‘ ‘ In behalf of said defendant I hereby demand a trial by jury and also ask leave to file a set-off in said cause.” The court granted further time and on November 3, 1910, defendant, by his agent, filed an affidavit of merits and also a set-off supported "by affidavit. On motion of plaintiffs the affidavit of merits was ordered stricken from the files and leave given to defendant to file an amended affidavit of merits, which he did, together with an amended set-off, and on December 9, 1910, on motion of plaintiffs, the court ordered that said amended affidavit of merits and set-off be stricken from the files, and, “it appearing to the court that * * * the defendant herein is in default for want of an affidavit of merits or defense in this cause, it is, on motion of the plaintiffs, ordered by the court that judgment be entered herein against said defendant by default for want of such affidavit of merits.” On December 15, 1910, the court found there was due plaintiffs the sum of money “shown in said affidavit of claim to be due,” viz., $852.59, and without any witnesses being sworn, and without any testimony being offered by the plaintiffs, entered the judgment herein.

It appears from the statement of facts signed by the trial judge that the reason for striking defendant’s amended set-off and amended affidavit of merits from the files and entering said default against defendant was that it appeared that defendant’s claim for set-off grew out of a transaction other than that for which plaintiffs sued, and was also a claim for unliquidated damages. Counsel for defendant contended that the claim of set-off was for liquidated damages, and so contends in this court. After a careful reading of said claim of set-off, we are of the opinion that it was a claim for unliquidated damages, which did not grow out of the contract or cause of action sued on by plaintiffs. Such a claim can not be set off in an action at law. Smith v. Billings, 62 Ill. App. 77; Horn v. Noble, 95 Ill. App. 99; Higbie v. Rust, 211 Ill. 333; Turnbull Joice Lumber Co. v. Chicago Lumber & Coal Co., 152 Ill. App. 347, 350.

But we are of the opinion that the court erred in entering the judgment. The amount for which judgment was entered against defendant was $852.59, which is $2.59 more than the ad damnum in the statement of claim. Furthermore, the affidavit of plaintiffs’ claim showed that there was due to plaintiffs from the defendant, after allowing all credits, deductions and set-offs, the sum of $825.42, “and interest thereon at the rate of-per cent, per annum from 190— until date óf judgment.” In our opinion, even if defendants had not demanded a trial by jury, the court would not have been justified in entering judgment against the defendant, for want of a sufficient affidavit of merits, in an amount in excess of said amount of $825.42. Section 56 of our Practice Act provides: “When any part of the demand is upon an account, and the defendant shall suffer default for the want of an affidavit of merits, or for nonappearance, or for nil dicit, the affidavit so filed with the declaration may be taken as prima facie evidence of the amount due upon such account; but the court may require further evidence.” It appears from the trial court’s statement of facts that the judgment was entered “without any witnesses being sworn and without any testimony being offered, ’ ’ and it further appears that the suit was on an account. Section 2 of chapter 74 of our statutes provides:' “Creditors shall be allowed to receive at the rate of five (5) per centum per annum * * * on money due on the settlement of account from the date of liquidating accounts between the parties and ascertaining the balance; * * * and on money withheld by an unreasonable and vexatious delay of payment.” We do not find in the record that there was a “settlement of account” between the parties, or that money was withheld by defendant by an unreasonable and vexatious delay. In Fitzgerald v. Benner, 219 Ill. 485, 492, it was said: “It is undoubtedly true that, in order to justify a recovery of interest, a claim must be liquidated, and it must be shown that the parties figured upon a definite amount as being due, and that payment has been vexatiously and unreasonably withheld. Haight v. McVeagh, 69 Ill. 624; Imperial Hotel Co. v. Claflin Co., 175 Ill. 119.”

It appears from the record that at the time of entering his appearance defendant filed a demand in writing for a trial by jury. The default of defendant for failure to file a sufficient affidavit of merits did not admit the amount of plaintiff’s damages. Wanack v. People, 187 Ill. 116; Loellke v. Grant, 120 Ill. App. 74; Plaff v. Pacific Exp. Co., 251 Ill. 243, 247.

In our opinion, the Municipal Court has no power, by rule or otherwise, to prevent a defendant from having plaintiff’s damages assessed by a jury, if a jury trial is demanded in writing by the defendant, as provided by section 30 of the' Municipal Court Act. Any such rule would be inconsistent with the express provisions of that act in that respect.

For the reasons indicated, the judgment of the Municipal Court of Chicago is reversed and the cause remanded. p

Reversed and remanded.


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    In the matter of the petition of Julius J. Sankstone, Appellant, v. The People of the State of Illinois, Appellee.
    Gen. No. 17,480.
    1, Execution—discharge of insolvent debtor. It cannot be contended that the record of proceedings for discharge under the Insolvent Debtors Act shows that the court lost jurisdiction because an adjournment was taken for more than thirty days, where from an additional transcript it appears that the court found that proper adjournments were taken during such period hut that the clerk had failed to transcribe the orders from his memorandum book to the records, and it was ordered that orders he entered nunc pro tunc as of the dates when such adjournments were taken.

      2. Executions—discharge of insolvent debtor. A person seeking discharge under the Insolvent Debtors Act cannot urge that the trial court lost jurisdiction because an adjournment was taken for more than thirty days, where he did not object to trial after such alleged adjournment but after verdict on such trial the order remanding him to the custody of the sheriff was stayed on his motion until his motion for new trial could be disposed of.
    3. Executions—when finding that malice was gist of action. In a tort action in the municipal court wherein it is set forth that defendant maliciously, wilfully and intentionally converted money collected for plaintiff with intent to defraud, a verdict is equivalent to a finding that malice was a gist of the action where it finds defendant “guilty of having maliciously, wilfully and intentionally, with intent to injure and defraud the plaintiff, converted to defendant’s own use the property of the plaintiff.”
    4. Insolvent debtors—when proper for county court to submit fraud to jury. On petition in the county court for release under the Insolvent Debtors Act by one found guilty by a jury in the municipal court of maliciously converting money collected for plaintiff with intent to defraud, if the county court can not determine from the record that malice was the gist of the action then it properly submits the question of the fraud alleged to a jury.
    5. Insolvent debtors—when submission to jury by county court of fraud alleged harmless. On petition in the county court for release under the Insolvent Debtors Act, where such court submitted to the jury a question of petitioner’s guilt of the fraud alleged in the action in the municipal court, of which he was there found guilty by a jury, such submission of the county court, if error, is harmless where the verdict in the riiunicipal court was equivalent to finding that malice was the gist of the action, and the result is the same as if such petitioner had been remanded to custody without the second jury hearing.
    Appeal from the County Court of Cook county; the Hon. Francis E. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed December 19, 1912.
    Ode L. Rankin, for appellant.
    Whitman & Horner, for appellee; Henry Horner, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On April 4, 1910, Julius J. Sankstone filed in the County Court of Cook county Ms petition to be released from arrest under the provisions of chapter 72 of the Revised Statutes of Illinois—commonly known as the Insolvent Debtors Act. On September 20, 1910, the County Court ordered and adjudged that said Sankstone be remanded to the custody of the bailiff of the Municipal Court of Chicago, that the costs of the proceeding be taxed against the petitioner and that the arresting creditor have execution therefor, to reverse which judgment this appeal is prosecuted.

The material facts are that on January 3, 1910, Max Karlsburg commenced in said Municipal Court a tort action against Sankstone, in which it was set forth by affidavit that Karlsburg, as the owner of a certain building in Chicago, had employed Sankstone as agent to collect the rents thereof, and that Sankstone had maliciously, wilfully and mtentionally converted to his own use the sum of $979.37 out of the rents collected by him. Sankstone was arrested by virtue of capias ad respondendum and subsequently released under bond. A jury trial was had, and on February 2,1910, the jury returned a verdict as follows:

“We, the jury, find the defendant, Julius J. Sank-stone, guilty of having maliciously, wilfully and intentionally, with intent to injure and defraud the plaintiff, converted to defendant’s own use the property of the plaintiff, to-wit $933.52 * * * and assess plaintiff’s damages at the sum of $933.52.”

On February 26, Sankstone’s motion for a new trial was overruled, judgment was entered upon the verdict, and a capias ad satisfaciendum was issued on the judgment. On April 4, the day that Sankstone filed his petition for discharge in the County Court, a hearing was had in that court and he was released under bond and the further hearing of the matter was continued by agreement until April 15. On that day the parties appeared and the hearing was again continued to April 22, and on that day was again continued to May 3, by agreement. On May 3, by agreement of the parties, the further hearing was continued until May 17. Pending this continuance, to-wit: on May 12, Karlsburg filed in said court an answer to Sankstone’s petition for release, setting forth the proceedings in the Municipal Court of Chicago, as above stated, and on May 17 the further hearing of the matter was continued until June 1. As shown from the original transcript of the record filed in this court, the next order of the County Court was entered June 29, from which it appears that both parties were present in person, and the court ordered a jury to be impaneled to try the issues, which was done, and on July 1, the jury returned a verdict as follows: “We, the jury, find the petitioner guilty of the fraud alleged against him. ’ ’ A motion for a new trial was on that day entered and continued from time to time until September 20, when said motion was denied and the judgment complained of entered.

From the additional or supplemental transcript of the record filed in this court, it appears that on June 1, by agreement of the parties, it was ordered that the hearing on said petition be continued until June 7, and that on June 13, after a hearing, it was ordered that further hearing be continued until June 21, and that on June 13, a transcript of the proceedings in the Municipal Court was filed in said County Court; that on June 21, the further hearing on said petition was continued until June 24, 1910; that on June 9, 1911, the court found that on June 7, 1910, the cause came on for hearing and was, by agreement of the parties, ordered continued to June 13, 1910, and also that on June 24, 1910, by agreement of the parties, the cause was ordered continued to June 29, 1910, and that the minute clerk of this court was directed by the judge to enter said orders in the records of said court, and that said clerk thereupon, on June 7,1910, and on June 24, 1910, respectively, contemporaneously with the directions and orders of the court, made entries of said order in the memorandum book of said clerk, and that, through error, said clerk failed to transcribe said orders from said memorandum book to the records of the court, and that all parties to the cause were pres-, ent in person and by their counsel at the times said clerk was respectively directed to enter said orders, and that, therefore, it was ordered and adjudged that an order be entered, nunc pro tunc as of June 7, 1910, continuing the hearing of said cause until June 13, 1910, and that a further order be entered, nunc pro tunc as of June 24,1910, continuing the hearing of said cause until June 29, 1910. No bill of exceptions appears either in the original or in the additional or supplemental transcript of the record filed in this court.

It is contended by counsel for appellant, in his brief and argument (filed in this court on May 22, 1911, and prior to the filing of said additional or supplemental transcript of the record) that section 8 of the act concerning insolvent debtors provides that "the court may adjourn any hearings from time to time, not exceeding thirty days at any one time; ’ ’ that on May 17,1910, the case was called and the hearing continued to June 1; that no further action was taken by the court until June 29, when the case was called and proceeded to trial; that inasmuch as no action was taken by the court on June 1, and not until more than thirty days after May 17, the court, under said provision of the statute, lost jurisdiction to further proceed, and the subsequent proceedings were void for want of jurisdiction. The actions of the court after May 17, and prior to June 29, as disclosed from said additional or supplemental transcript, show, we think, that counsel’s contentions are without merit. It appears that by agreement of the parties the court ordered, on June 1, 1910, that the hearing be continued until June 7, and that on June 13 a further continuance was ordered until June 21, and that on that day a further continuance was ordered until June 24, and that these orders were entered of record at the times made. It further appears from the nunc pro timo orders of the court that on June 7 the court, by agreement of the parties, ordered a continuance until June 13, and that on June 24, by agreement of the parties, the court ordered a continuance until June 29—the day the trial of the cáse by a jury was commenced, and that these orders were in fact entered in the memorandum book of the clerk at the times made, but that the clerk through error neglected and omitted to transcribe the same in the records of the court. Furthermore, it appears from the original transcript that on July 1, after the verdict of the jury finding Sankstone guilty had been entered, on motion of Sankstone, the order remanding him to the custody of the bailiff was stayed until his motion for a new trial could be considered and disposed of, and it nowhere appears that Sankstone objected to his case being tried on June 29. People v. Hanchett, 111 Ill. 90, 95; Rohrhof v. Schmidt, 218 Ill. 585, 587.

It is further contended by counsel that the only question which the record of the Municipal Court presented to the County Court was one of law to be determined by the latter court from said record, i. e., whether malice was the gist of the action in said Municipal Court, and that the County Court erred in submitting the question whether Sankstone was guilty of the fraud alleged to the jury.

Section 2 of the Insolvent Debtors Act provides:

“When any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action when malice is not the gist of the action, or when any debtor is surrendered or committed to custody by his bail in any such action, or is arrested or imprisoned upon execution in any such action, such person may be released from such arrest or imprisonment upon complying with the provisions of this act.”

Section 5 of the same act provides:

“When any debtor is arrested or imprisoned for debt upon charge of fraud, or upon execution on the charge of refusal to surrender his estate for the payment of any judgment, he shall be entitled, * * * to have the question, whether he is guilty of such fraud, or has refused to surrender his estate, tried by a jury, * * *. If the jury shall find the debtor ‘not guilty’ of such fraud, or refusal, as the c.ase may be, the debtor shall be discharged from the arrest or imprisomnent, * * * If the debtor shall be found ‘guilty’ of such fraud or refusal, he shall be remanded to the custody of the proper officer; * *

This court said in the case of In re Mansfield, 120 Ill. App. 511, 513:

“Malice, as used in the Insolvent Debtors Act, ‘applied to that class of wrongs which are inflicted with an evil intent, design or purpose.’ It implies that the guilty party was actuated by improper or dishonest motives and requires the intentional perpetration of an injury or wrong upon another. * * * The gist of an action is the essential ground or principal subject-matter, without which the action could not be maintained. ’ ’

The jury in the Municipal Court case found by their verdict that Sankstone was “guilty of having maliciously, wilfully and intentionally, with intent to injure and defraud the plaintiff, converted to defendant’s own use the property of the plaintiff.” This verdict was equivalent to a finding by the jury that malice was the gist of the action. Blattau v. Evans, 57 Ill. App. 311, 315; In re Mansfield, 120 Ill. App. 511, 515. If it be argued, inasmuch as in suits of the fourth class in the Municipal Court the issues are to be determined without written pleadings, and the action is what the evidence makes it (Schwarzschild & Sulzberger v. Goldstein, 121 Ill. App. 1, 3; Doherty v. Schipper & Block, 157 Ill. App. 413, 422; Edgerton v. Chicago, R. I. & Pac. Ry. Co., 240 Ill. 311, 313) that the court could not determine from an inspection of the record whether or not malice was the gist of the action, then the County Court properly submitted the question whether Sankstone was guilty of the fraud alleged against him to a jury. Schwarzschild & Sulzberger v. Goldstein, supra. In any event, the proceedings in 'the County. Court, which resulted in a second verdict of guilty and in again remanding Sankstone to the custody of the bailiff, did him no harm, and he cannot complain, since the result is the same as if he had been remanded without a second hearing before a jury. Penoyer v. People, 105 Ill. App. 481, 484.

For the reasons indicated the judgment of the County Court is affirmed.

Affirmed.


text:
    Dora Cramer, Appellant, v. Illinois Commercial Men’s Association, Appellee.
    Gen. No. 17,499.
    1. Appeals and ebbobs—final order. Where on the last day of the term an order is entered striking defendant’s plea from the files for want of an affidavit of merits and default judgment is entered for plaintiff, and at the next term a written motion is filed hy defendant under Practice Act, § 89, which abolishes the writ of error coram nobis, to set aside the order and default judgment, to which motion ■ plaintiff’s demurrer is overruled and judgment entered that default judgment at preceding term be vacated, this is a final order and appealable.
    2. Pbactioe—failure to serve notice required by rules of court not “an error of fact.” Where plaintiff’s motion to strike defendant’s plea and enter judgment is allowed when defendant has not been served with notice as required by rules of the court, there is not “an error of fact” which will support a motion under Practice Act, § 89, at the next term to set aside the order.
    3. Pbacticb—section 89 of the Practice Act. To support a motion under Practice Act, § 89, there must be an “error of fact” as distinguished from an “error of law.”
    4. Judgments—when bond for costs not filed. The fact that a bond for costs is not on file does not affect the validity of a judgment in favor of a nonresident plaintiff.
    Appeal from the Circuit Court of Cook county; the Hon. William B. Soholpield, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed.
    Opinion filed December 19, 1912.

      M. E. Ames, for appellant; Quin O’Brien, of counsel.
    James Maher, for appellee; John T. Murray, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On the last day of the December, 1910, term of the Circuit Court of Cook County, to-wit: January 14,1911, on motion of the attorney for Dora Cramer (hereinafter called plaintiff), an order was entered striking the plea of the Illinois Commercial Men’s Association (hereinafter called defendant) from the files for want of an affidavit of merits, and defaulting the defendant. The order was entered -without notice to the defendant. Plaintiff’s damages were thereupon assessed by the court and judgment was entered in her favor for $5,345.13. On January 30, 1911, the attorney for defendant filed a written motion urging the court to set aside and vacate said order and judgment of January 14, 1911, which motion was, on February 3, 1911, allowed and said judgment set aside. Plaintiff seeks by this appeal to reverse the order of February 3, 1911, vacating said judgment.

The transcript of the record filed in this court discloses the following: On September 14, 1910, plaintiff commenced an action in assumpsit against defendant. Service was had on defendant, and, on November 17, 1910, its appearance by attorney was entered. On December 9, 1910, plaintiff filed her declaration, consisting of three special counts and the common counts, to which was added an affidavit of claim. This affidavit was signed and sworn to by Quin O’Brien and stated that “he is one of the attorneys and agents of the plaintiff herein and authorized to make this affidavit for her, and ■ * * * that the demand * * * is for money due the plaintiff from the defendant on a policy of insurance on the life of Adolph Gf. Cramer, deceased, for the amount of $5,000, with interest at 5 per cent, per annum from July 22, 1909, a copy of which policy is set out in the first special count of this declaration, to which reference is hereby had and it is made a part hereof, and that there is due to the plaintiff from the defendant, after allowing to defendant all just credits, deductions and set-offs, $5,345.13.” On December 20, 1910, the defendant filed a plea of general issue and sixteen special pleas, but did not file any affidavit of merits. On January 14, 1911, on motion of plaintiff and without notice to the defendant, the court entered the order and judgment in favor of plaintiff above mentioned. When, on January 30,1911, the attorney for defendant filed the written motion to set aside and vacate said order and judgment, the term of court at which the same was entered had expired. The motion was evidently based on section 89 of the Practice Act, which abolishes the writ of error cor am nobis, and provides that “all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice.” In said written motion twenty-eight assignments of error were made, which were to the effect that the court had no jurisdiction to strike out defendant’s plea, or to enter said default, or to assess damages against defendant, or to enter said judgment; that the court acted illegally and erroneously in so doing and contrary to the rules of the circuit court; that neither plaintiff’s declaration nor the affidavit of plaintiff’s claim were such as required from defendant an affidavit of merits; that plaintiff is a nonresident of the state of Illinois and failed to file security for costs; that the order striking out defendant’s plea did not designate which one of the several pleas was stricken, and that it was error to enter the default and judgment so long as any pleas were on file and undisposed of; that by the action of the court in entering judgment without notice, even after default entered, defendant was deprived of its right to be present upon the assessment of damages, and that defendant was deprived of its rights under the Constitutions of the State of Illinois and of the United States. The motion was supported by a lengthy affidavit of James Maher, the attorney for the defendant, in which it was stated, inter alia, that affiant first learned of the entry of said judgment against defendant on January 19, 1911, after the term at which said judgment was entered had passed, and that neither affiant or defendant had any prior notice of the proceedings of January 14, 1911; that on that day and at and prior to the commencement of said suit, there were in force certain rules of said circuit court (which rules of court were set forth in said affidavit and it was claimed that the same had been violated by the court in entering said default and judgment of January 14, 1911); that one of said rules, to-wit: Buie 15, provided that “No motion will be heard or order made in any cause without notice to the opposite party, when an appearance of such party has been entered, except where a party is in default or when a cause is reached on the call of the trial calendar;” that plaintiff was a resident of Wisconsin and that no bond or security for costs had been filed by her; that affiant examined plaintiff’s declaration on December 16, 1910, but inadvertently failed to notice the affidavit of claim accompanying the same, and on December 20, 1910, filed the pleas of the defendant, but without any affidavit of merits. The affidavit stated further factsMending to show that defendant had a meritorious defense to plaintiff’s claim. Plaintiff filed a demurrer to the errors assigned by defendant in its said written motion, but the court overruled the demurrer and plaintiff excepted. Plaintiff did not file any counter-affidavit and no evidence, other than said affidavit of James Maher, was presented to the court in support of defendant’s motion to vacate said judgment of January 14, 1911, and plaintiff demurred to said evidence and moved that the court deny defendant’s motion, which demurrer and motion was overruled and plaintiff excepted. The court then found for the defendant on its said motion to vacate said judgment, and plaintiff moved for a new trial and in arrest of judgment, which motions were denied and plaintiff excepted. The judgment of the court, entered February 3, 1911, was “that the plaintiff be and she is hereby required to file a bond for costs herein within thirty days from this date, and * * * that the default and judgment heretofore on January 14, 1911, entered herein be and the same is hereby set aside and vacated,” to the entry of which judgment plaintiff excepted and appealed to this court.

It is here contended by counsel for defendant that the order of the circuit court of February 3,1911, setting aside the judgment entered January 14, 1911, in favor of plaintiff, is not such an order as is appealable, inasmuch as it is not a final judgment. We are unable to agree with counsel, because of the decision of our Supreme Court in Mitchell v. King, 187 Ill. 452, and followed in Domitski v. American Linseed Co., 221 Ill. 161, 164. In the former case, John Mitchell sued King in an action of assumpsit, had a summons issued and filed his declaration. The summons was not served on King, and an alias and a third and fourth summons, being successively issued, were returned unserved. Nothing further had been done in the case when, on February 19, 1898, John Mitchell, the plaintiff, died. His death was not suggested of record or his executrix substituted as plaintiff. Several months later, on August 5, 1898, a fifth summons was taken out in the name of the deceased plaintiff, and King was served. On October 8,1898, at the October term of the Superior Court of Cook County, Bridget Mitchell, executrix of the deceased plaintiff, appeared and suggested his death, and it was ordered that the cause proceed in her name. Thereupon King, who had not appeared, was defaulted, plaintiff’s damages assessed at $8,000 and judgment was entered for that amount. At the succeeding term of the court, on November 21, 1898, King entered his appearance and moved the court to vacate and set aside the judgment. On the hearing of the motion it appeared, as a matter of fact, that John Mitchell had been dead for some time when the summons of August 5, 1898, was sued out and served upon King. The superior court overruled the motion to vacate the judgment, and King appealed to the appellate court, which reversed the order made on the motion and remanded the cause to the superior court, with directions to vacate and set aside the judgment. Bridget Mitchell sued out a writ of error from the supreme court to review this judgment of the appellate court. King moved the supreme court to dismiss the writ of error. Practically, the same contentions were there urged as now here made, namely, that the writ of error could not lie for want of finality in the judgment, that the controversy was not ended, that plaintiff might still prosecute the suit against the defendant, and that the judgment of vacation was but a single step in the proceeding. The motion to dismiss the writ of error was denied, the court saying, p. 457 (italics ours):

“A teclmical judgment is not required to make the judgment of the Appellate Court final, but it is sufficient if it concludes or ends the controversy between the parties in the particular suit. The particular controversy which was before the Appellate Court in this case arose upon a motion which our statute has substituted for the writ of error coram nobis. At common law there were writs of error for the correction of errors of law and of fact. * * * By our statute the writ of error coram nobis has been abolished, and errors in fact committed in the proceedings of any court of record, and which by the common law could have been corrected by said writ, may be corrected by the court in which the error was committed, by motion in writing. * * * Bnt while the statute abolished the writ it did not abolish the essentials of the proceeding, which, in nature, remains the same. A writ of error is a new suit, in which original process is issued and served and new pleadings are made up. The assignment of error stands in the place of the declaration, and it is still necessary, in the form of a motion, to allege and show an error in fact, and for the opposite party to have notice. The defendant may, of course, admit the matter alleged and submit the question of error to the court as a matter of law, or may deny the fact, or plead the Statute of Limitations against the motion. In either case an issue is made up and there must be a finding and a judgment. If the alleged error is proved and there is judgment for the plaintiff in error, it is that for such error the judgment be recalled and annulled. In this case there was judgment against the party making the motion in the superior court, and the issue made by the motion was taken to the Appellate Court. The original case was not in the Appellate Court, but only the motion in the nature of the writ of error coram nobis. The judgment of the superior court was reversed by a judgment in the Appellate Court, which was final upon the issues presented on the motion. * * * The judgment settles finally the issues made in that case and destroys the judgment.”

In the case before us a judgment in favor of plaintiff was entered. t After the expiration of the term of court at which that judgment was entered, except by virtue of the provisions of section 89 of the Practice Act pertaining to “errors in fact,” the trial court had no discretion or authority to set aside that judgment, and could amend it only in a mere matter of form. Cook v. Wood, 24 Ill. 295; Cox v. Brackett, 41 Ill. 222; Barnes v. Henshaw, 226 Ill. 605, 609; People v. Wilmot, 254 Ill. 554, 559. “An alleged error at law cannot be examined, revised or corrected by the court on a mere motion entered after the close of the term at which the alleged erroneous action was taken and final judgment entered.” Pisa v. Rezek, 206 Ill. 344. After the term had expired defendant, by its attorney, appeared and by written motion urged the court to set aside the judgment. In that motion it made 28 points or assignments of error which, as stated in the Mitchell case, supra, “stands in the place of the declaration.” When that motion upon notice to plaintiff was filed, plaintiff could either demur thereto (i. e., “admit the matters alleged and submit the question of error to the court as a matter of law), or by appropriate plea deny the matters alleged. She chose to do the former. She demurred and her demurrer was overruled by the court and she excepted. The defendant sought to support its allegations contained in said written motion, or declaration, by filing the affidavit of James Maher. This was proper. Domitski v. American Linseed Co., 221 Ill. 161, 166. No further affidavits in support of defendant’s allegations were presented, and plaintiff, by proper motion, in effect demurred to defendant’s case and moved that the court deny defendant’s motion to vacate said judgment, which motion was overruled and plaintiff excepted. Plaintiff did not introduce any counter-affidavits, and the court finally entered the order or judgment, setting aside the judgment in favor of plaintiff of January 14, 1911, to the entry of which plaintiff excepted, and appealed to this court. We are of the opinion that the appeal is properly before us.

Counsel for plaintiff here contends in effect that defendant’s motion in the court below did not, on its face, disclose any error in fact, and that the trial court erred in assuming jurisdiction of defendant’s motion and in setting aside and vacating the judgment of January 14, 1911, in favor of plaintiff. We think that plaintiff has in this ease pursued, in every material particular, the method held in Domitski v. American Linseed Co., supra, as essential to present to a reviewing court the errors assigned. Glaefke v. Western Electric Co., 145 Ill. App. 383, 386.

In Crawford v. Williams, 1 Swan (Tenn.) 341, the proceeding in error coram nobis is elaborately discussed and the court says, p. 345:

“If a judgment be erroneous in matter of fact only, arid not in matter of law, it may be reversed in the same court by writ of error coram nobis; for error in fact is not the error of the judges, and reversing it is not reversing their own judgment. 2 Tidd’s Pr. 1137. The error in fact, which will render a judgment erroneous must be such as would have precluded the rendition of such judgment, if the fact had judicially appeared at the former trial. As, where the plaintiff or defendant was a feme covert at the institution of the suit, or where either party had died before the verdict or interlocutory judgment. * * * It is trine that nothing can be assigned for error in fact which appeared and was adjudged in the former suit, or which contradicts the record of that suit. Bac. Ab., title Error. And in Birch v. Trist it is said that the error in fact must be of such a nature as, if true, will destroy the plaintiff’s right of action. 8 East 415.”

In Estate of Gould v. Watson, 80 Ill. App. 242, 247, this court said:

“ ‘The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication, made while some fact existed, which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court. ’ Freeman on Judgments, sec. 94. It is apparent * * * that the fact upon which the error is predicated, in order to avail under this writ, must be matter not part of the issues tried by the court, but something aliunde, which, if presented to the court at the trial, would have absolutely precluded the judgment as rendered, and not a fact merely bearing upon the issues adjudged, however conclusive it might have, been of such issues.”

In Pisa v. Rezek, 206 Ill. 344, 345, it is said:

‘ ‘ The motion substituted by the statute for the writ of error coram nobis may be invoked to enable the court to correct an error of fact that came within the scope of the writ as it existed at the common law, as, that the judgment was entered against a deceased person, an infant without a guardian, a feme covert, a person insane at the time of trial, or that a valid defense existed in fact, but which, without negligence of defendant, was not made, either through duress, fraud or excusable mistake, without negligence on the part .of the party who by the motion complained of the action of "the court.”

We do not think that either defendant’s motion to set aside said judgment of January 14, 1911, or the affidavit in support thereof, disclosed any error of fact, as distinguished from an "error of law, which warranted the action of the trial court in setting aside said judgment. Counsel for defendant strenuously contends that the alleged violation of Bule 15 of the rules of the circuit court, above mentioned, and the alleged violation of other rules of said court, set forth in the affidavit of James Maher, are errors of fact. We cannot agree with the contention. In Pisa v. Rezek, 206 Ill. 344, an order was entered in the Probate Court of Cook County disallowing a claim filed against the administrator of a deceased person, and the claimant perfected an appeal to the circuit court of Cook county. . The appeal bond and transcript were filed in said circuit court on December 16, 1901. On April 3, 1902, certain of the heirs of the deceased person were permitted to become parties defendant and they entered their appearance. On April 19, 1902, the last day of the March, 1902, term of said circuit court, an order was entered dismissing said appeal and adjudging that the costs should be paid by the claimant. After the term had passed, on June 7, 1902, the'claimant moved to set aside and vacate said order and judgment, but the court denied the motion. On appeal to this) court that ruling was affirmed, and "on further appeal to the supreme court was again affirmed. The court said, p. 345:

“The motion disclosed no ground of complaint, but it appeared from affidavits filed in support thereof that the vacation of the order of dismissal was asked upon the ground that under the proper construction, of the rules of practice in said circuit court the appellant was entitled to one day’s notice, in writing, that the motion of the appellees that the appeal from the probate court be dismissed would be taken up and considered, and that such notice in writing had not been given. The court had jurisdiction of the parties and of the subject-matter and proceeded to final judgment, and the judgment entered in the cause could pot be opened and reviewed at a subsequent term to correct an alleged error in the construction or application of the rules adopted by the court to regulate the practice in the court. It is only the correction of matters of form, clerical errors or matters quite of course that may be had on mere motion, after the close of the term.”

In Glaefke v. Western Electric Company, 145 Ill. App. 383, Glaefke sued the company in the circuit court of Cook county in an action on the case for personal injuries, and on December 10, 1903, filed her declaration, and on December 22, 1903, the company filed a plea of general issue. On May 2, 1906, an order was entered dismissing the suit for want of prosecution, and a judgment for costs was entered against the plaintiff. After the term had passed, on April 4, 1907, on motion of plaintiff the circuit court vacated the order of dismissal and judgment for costs and reinstated the cause upon the docket. The company entered its motion for a new trial, which was overruled. It then moved in arrest of judgment, which motion was also overruled. It then prayed and perfected its appeal to this court, from the order of the circuit court in setting aside said judgment and reinstating the cause. The motion filed by plaintiff was that the case be reinstated upon the calendar and that the court amend the record of the judgment so that it should appear that the cause was dismissed on the general call of the docket instead of having been dismissed on the regular call for actual trial, which it was claimed was not the fact. This court reversed the order setting aside the judgment, and said, p. 385:

“The power of the court to interfere with the judgment at all rests in its right to proceed on motion to correct any error committed by the court not appearing in the judgment itself or involving any proceeding of either fact or law occurring upon the trial aliunde the record and which, when made known to the court, would have the effect to void or nullify its judgment. Such a motion serves the office and function of the common-law writ of coram nobis, and is in the nature of a review by the trial court of the error alleged against its judgment. Such review must be limited to errors of fact. * * * If the court proceeded, in its order reinstating the cause, on the ground that it should not have dismissed the same, as it did, under the order for a general call of the law docket, such error was of law and not of fact, and therefore not reviewable by the trial judge.”

As to the point made that plaintiff was a nonresident and had filed no bond or security for costs before judgment, this does not affect the validity of the judgment of January 14, 1911. The filing of a bond for costs is not a jurisdictional prerequisite. Palmer v. Riddle, 180 Ill. 461, 464; Baltimore & O. S. W. R. Co. v. Keck, 185 Ill. 400, 405; Plaff v. Pacific Exp. Co., 251 Ill. 243, 247.

The judgment of the circuit court, entered February 3, 1911, setting aside the default and judgment entered on January 14, 1911, is reversed.

Reversed.