text:
    Second National Bank of Danville et al. v. Charles L. English et al.

      Insolvency — Jurisdiction of County Court — How far Exclusive — Circuit Court has Jurisdiction of Bill to have Trust Deed Canceled — ¶ 47, Sec. 11, Chap. 72, Starr & C. Ill. Stat.

    1. The Circuit Court has jurisdiction of a bill filed by creditors and the assignee of an insolvent to have a trust deed covering his real estate canceled and annulled and the property passed over to the assignee.
    2. The exclusive jurisdiction of the County Court as an insolvent’s court does not extend to a proceeding brought by the assignee and others, to remove a cloud from the title of property claimed to be a part of the insolvent’s estate.
    [Opinion filed November 20, 1886.]
    In error to the Circuit Court of Vermilion County; the Hon. J. W. Wilkins, Judge, presiding.
    Messrs. H. P. Blackburn, W. J. Calhoun and Lawrence & Thompson, for plaintiffs in error.
    The relief sought by the bill is to remove a cloud upon the title of the assignee Frazier, or to remove an impediment in the way of a sale of the property assigned to him. A court of equity has exclusive jurisdiction for this purpose. Farnsworth v. Strassler, 12 Ill. 482; Moore v. Munn, 69 Ill. 591; 2 Story’s Eq. (2d Ed.) Sec. 700.

      The County Court has limited jurisdiction, and only over matters especially provided by the statute. It is not empowered to enter a decree canceling a deed of record in the office of the recorder of deeds. It has no equitable jurisdiction. Propst v. Meadows, 13 Ill. 157; Dixon v. Buell, 21 Ill. 203; Moore v. Rogers, 19. Ill. 347; Pahlman v. Graves, 26 Ill. 405.
    Messrs. Davis & Mann, for defendants in error.
   Pleasants, P. J.

On July 27, 1885, Wm. W. R. Wood-bury made a general assignment to DeWitt C. Frazier for the benefit of his creditors, which was filed for record at 3:45 o’clock p. m. of said day and purported to convey all the real and personal property of the assignor, wherever situate and of whatever nature, without a more particular description. His-indebtedness was listed at $111,217.77 and the assets were estimated at $115,429.55.

At 3:40 p. m. of the same day there was also filed for record a deed of conveyance of divers lots of real estate from said Woodbury to Charles L. English, as trustee of the other defendants in error, who were respectively sureties on several items of said indebtedness for something over $28,000, to indemnify them against loss by reason of such suretyship.

The bill herein was filed by creditors whose claims aggregated about $30,000, on behalf of themselves and such others as should join in and contribute to the expense of the proceeding, and by order of the County Court, on their petition, the assignee was also made a party complainant, by an amendment thereto.

Besides the facts above stated it avers, on information and belief, that the estate assigned will not realize more than $50,000; that the lots described in the' deed of trust are of the value of about $25,000; that the larger part of complainants’ claims have been duly verified and presented to the assignee as required by the statute; that they are believed to constitute a majority of the indebtedness of said insolvent, exclusive of his liabilities to said sureties; that said deed of trust and assignment were executed simultaneously, prepared by the same attorney for said insolvent, acknowledged at the same time before the same officer and together filed for record; that for several days immediately preceding said 2d day of July, said Woodbury intended and contemplated the making of said general assignment, and that the execution of said deed of trust was a shift and device to evade the statutes, and expressly intended to prefer said surety creditors, and prays that said deed be canceled and annulled, and all the estate of said Woodbury in the property therein described, decreed to pass to said Frazier by virtue of said deed of assignment for the uses and purposes therein expressed.

To this bill the defendants demurred, and for cause said: It set up no matter of thing within the jurisdiction of said court, and that all the matters and things therein set forth are wholly within the jurisdiction of the County Court of Vermilion County.

The court sustained this demurrer and dismissed the bill, and the complainants appealed.

As we understand it, the single question presented by this record is that of the jurisdiction of the Circuit Court, and it would seem to be important on account of the interest involved, if for no other reason. Yet counsel have not deemed it necessary to aid us in its solution by any extended argument.

The brief for appellants devotes to it three lines, and cites four cases of which the latest is from 28th HI. That of appellees is briefer still, simply referring us to Freydendall v. Baldwin, 103 Ill. 325; Hanchett v. Waterbury, 115 Ill.220; and Field v. Ridgely, 116 Ill. 424, without a word of comment.

The case made by the bill is certainly of a character quite familiar in equity practice, and clearly within the original jurisdiction of the Circuit Court as conferred by the Constitution, and if it could not be exercised in this particular instance, it must have been only because that of the County Court, not by virtue of its general powers as such, but as an insolvent’s court under the Act of May 22, 1877, relating to voluntary assignments for the benefit of creditors, had first attached. It is settled by the authorities cited for appellees and by others, that all the property the insolvent debtor has at the time of the assignment passes to and vests in the assignee under the statute, and must be administered by him under the supervision of the County Court; that upon the making, filing and recording of the assignment, with the lists and schedules annexed, the County Court at once acquires jurisdiction over and becomes possessed of all the property and estate embraced within the assignment, subject, of course, to all prior liens and just claims that third parties may have to or upon it; that if, after the jurisdiction of the County Court has attached, third parties having real or pretended claims to or upon the trust estate were permitted, by means of process issued out of other courts, to take possession of the property in the hands of the assignee for purposes of litigation in such other courts, the County Court might be deprived of its jurisdiction altogether, and, in any event, would be so retarded and embarrassed that it would be impossible to administer the estate in the manner or within the time prescribed by the act; that the assignee, the insolvent debtor and all persons claiming an interest in the fund are subject alike to the summary jurisdiction of that court, and all rights, or real supposed, with respect to it, must be primarily litigated therein, and that when its jurisdiction has attached, no other court can interfere for the purpose of adjusting any claims with respect to the property assigned, or of administering the insolvent’s estate, except, perhaps, that under special circumstances a court of equity may intervene to prevent a failure of justice.

The foregoing is taken almost verbatim from the opinions in the cases cited, and is believed to show the full extent to which the courts have yet gone in reference to the exclusiveness of the jurisdiction of the County Court under this statute.

It will be noticed that these holdings imply, as the fact was in the several eases, (1) that there was no question as to what was embraced in the assignment; (2) that the County Court was in actual possession of the property in controversy or its proceeds ; (3) that the intervention of another coxirt was sought by some creditor or claimant against the assignment or some claim thereunder, and (4) that the proceeding if sustained, would have taken the property from the possession of the County Court, or overruled its order in relation 0 thereto.

In such case the claimant must- first litigate in that court because it is competent to grant him any relief, legal or equitable, that could be obtained in any other. Upon his petition it may in effect try the title or right to possession of real or personal estate, of whatever value, or the validity or priority of any alleged lien or other claim to or upon it. By means of its actual possession of the res and of its authority over the assignee in whom is the legal title, it is enabled to do whatever justice, as between the parties, may demand. Its judgment is enforced by personal order upon the assignee to do or refrain from ór submit to whatever may be necessary to that end, as to deliver possession of property, real or personal, or to execute, cancel or surrender instruments in writing relating to it, as the nature of the case may require. Hence there is no necessity for an action of ejectment or bill in chancery, in another court, at the suit of the claimant. If the judgment is against him the conditions remain unchanged, and it is binding until duly reversed or vacated, because his petition has given the court the necessary jurisdiction over him and the statute confers it as to the subject-matter and the respondents claiming under the assignment.

Bfft does it follow from its possession of these powers in such cases that it can, by virtue of this statute in any case, render a judgment in ejectment or decree in equity, or make any order affecting one who is neither a party to nor claiming under the assignment and touching any property or interest which he does not concede to be embraced in it, and also in the possession of the court? If so, its jurisdiction in such case must be exclusive. But that it is not would seem to be clear from the provision in Sec. 11 of the statutes, which expressly authorizes the assignee to sue for and recover everything belonging or appertaining to said estate, real or personal,” the suits here contemplated being evidently to be brought against just such parties, claiming and holding adversely, in any courts having jurisdiction under the general law.

If it be true that appellants, by petition to the County Court for an order upon its assignee to sell subject to their claim, or to reserve enough of the proceeds for their indemnity, might have given it jurisdiction to determine this controversy, still they were not bound to do so. Mor have they sought the intervention of another court. This bill was filed in invitum, by the assignee and certain of the creditors. It shows that the defendants are not parties to nor claiming under the assignment, that they hold an apparent though a contingent incumbrance upon a large portion of the real estate assigned, by what purports to be a prior and valid deed that is of record; that this deed is really void, but nevertheless a cloud upon the title of the assignee, which, if it remains, must greatly injure his sale and by consequence the interests of the creditors. His duty was to do what he reasonably could to bring the property to sale under the most favorable conditions, and therefore to have this cloud removed. Goodwin v. Mix, 38 Ill. 115 ; Burrill on Assignments, Sec. 408.

But the position of the defendants was like that of parties in adverse possession of property described in the assignment, so that, as respects their interest or claim, the jurisdiction.of the County Court under this act had not attached. And if it had, for any purpose, it was at least doubtful whether it could grant the proper and needed relief by canceling the deed of trust. He therefore filed this bill in another court whose powers under the general law is confessedly ample, and since a dollar saved to the estate is a dollar recovered for it and a suit was necessary to save it, we hold this to be one that is fairly within the letter and spirit of the provision in Sec. 11 above referred' to.

The case here differs from those cited in the four particulars above mentioned and is analogous in principle to that of Preston v. Spaulding, 18 Ill. App. 350-1, where the assignee and a creditor sought to have declared void, as amounting to preferences, certain judgments confessed by the assignor on which executions had been issued and were claimed to be liens upon the property assigned, and to enjoin the Sheriff from making sales, and the jurisdiction of the Circuit Court, upon question made and argument had, was fully sustained.

Here the County Court itself invokes its exercise, and if the relief sought should not be granted, the denial will work no change in its possession or control of the estate assigned-

We are of opinion that the Circuit Court erred in sustaining the demurrer and dismissing the bill. The decree will therefore be reversed and the cause remanded for further proceedings in conformity herewith.

Reversed and rema/nded.


source: Caselaw Access Project

author: Pleasants, P. J.

license: Public Domain

text:
    Dexter A. Smith v. John Munch.

      Action on Note — Assignment—Notice of Defense — Failure of Consideration — Admissibility of Evidence — Practice—Defective Transcript and Abstract.

      In an action on a note on the face of which certain matter appeared, it is held: That evidence of a failure of consideration was admissible if the holder had notice, or was fairly put upon inquiry; that this was a question for the jury; that the matter on the face of the note was admissible in connection with other facts to prove such notice; and that this court can not interfere with the verdict of the jury finding that the holder was not a bona fide assignee.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Moultrie County; the Hon. J. F. Hughes, Judge, presiding.
    Messrs. Cochran & Harbaugh, for appellant.
    Where a promissory note is indorsed by the payee without date, it will be presumed, in the absence of proof, that it was assigned at the date of the execution of the note. Smith v. Nevlin, 89 Ill. 193.
    If the time of the assignment of a note becomes material, it is incumbent on the maker to show that it was made after the maturity of the instrument where the indorsement is without date. Mobley v. Ryan, 14 Ill. 51.
    The writing below the signature and marginal line of said note is no part of it. There is no evidence that it was there when the note was signed, or that any one authorized to do so caused it to be written there. It certainly could not be construed so as to make it appear to one purchasing the note as notice of a defense to the note. Owen v. Barnnm, 2 Gilm. 461; Carr v. Welsh, 46 Ill. 88.
    Mr. W. H. Shinn, for appellee.
   Pleasants, P. J.

The abstract in this case hardly complies with the rule and the transcript is not what it should be.

It is a suit in assumpsit by appellant, as assignee, against appellee as maker of a note, in special form and printed, to D. M. Osborne & Co. for $100, dated August 1, 1882, and payable on or before January 1, 1884, at the Merchants’ & Farmers’ Bank in Lovington, Illinois. It embraced a certifi- “ cate by the maker, “ for the purpose of obtaining the property for which it was given,” that he owned in his own name - acres of land in section -, township-, etc., and $1,500 worth of personal property on it over and above all his indebtedness. Under the signature was written : “ This machine to be put in running order by the harvest of 1883, when starting in 100 Oct. 1st, ’83.” Appellee says it also 'shows on its face, in the lower left hand corner, the following : “ [number on the machine — 9]”; and at the bottom, on margin, the printed words: Other notes in payment for same machine given to D. M. Osborne & Go.”; but if there the transcript of the record omits them.

It was stipulated that any defense which could be well pleaded might be given in evidence under the general issue filed. A verdict was returned for the defendant, a motion for a new trial denied and judgment entered. «

The bill of exceptions "shows that plaintiff offered in evidence ££ the note sued, also the writing on the margin,” which were admitted, and he then rested; but the assignment indorsed is also copied in the transcript, together with the other matter above mentioned.

Assuming that it was all treated as in evidence, the only-material question in the case is upon the propriety of the court’s ruling in.admitting proof of the failure of the consideration or conditions on which the note was given, notwithstanding it appeared that plaintiff was in possession of it before maturity.

It was proper if he had actual notice of these facts or was fairly put upon inquiry in relation to them before he got it.

Whether he was so notified or put upon inquiry was a question of fact for the jury; and all the matter appearing on its face — since it had been under the control of the payee and plaintiff from the time of its execution — was admissible, in connection with other facts in evidence, as tending to prove it. Henneberry v. Morse, 56 Ill. 395; Russell v. Haddock, 3 Gilm. 233. It was further proved that after maturity, in the spring of 1884, it was in the hands of the general agent of D. M. Osborne & Co., with plaintiff’s approval, and that this agent demanded payment for them of appellee.

The jury found that appellant was not a bona fide assignee for value and without notice of the defense as against his assignors, and we are unwilling to say they were not justified by the evidence.

Judgment affirmed.


text:
    The Village of Mansfield v. Lovina J. Moore.

      Defective Sidewalk — Location of — Injury—Action for Damages — Instructions — Negligence—Definition—Notice—Question for Jury.

    1. Where a sidewalk, built and maintained by a municipality within its corporate limits, is located on the right of way of a railroad company and is necessary for the use of the public, the corporation is responsible for its condition.
    2. Neither actual nor constructive notice is required to be shown in case of defective construction. n

    3. Negligence is the want of that degree of care which the law requires in a given ease.
    4. An omission in an instruction is not error if it is supplied elsewhere in the instructions given.
    5. Where the evidence is conflicting this court will not interfere with the verdict of the jury.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Piatt County; the Hon J. F. Hughes, Judge, presiding.
    Messrs. Lodge & Huston, for appellant.
    The instructions are erroneous. Chicago v. Bixby, 84 Ill. 82; Grayville v. Whitaker, 85 Ill. 439 ; Chicago v. McGiven, 78 Ill. 347 ; Chicago v. Watson, 6 Ill. App. 344; Macomb v. Smithers, 6 Ill. App. 470; Joliet v. Walker, 7 Ill. App. 267; Chicago v. McCulloch, 10 Ill. App. 459 ; Owen v. Chicago, 10 Ill. App. 465.
    It is a very dangerous practice to give erroneous instructions for a plaintiff and rely on the defendant’s instructions to correct or modify them. The better rule is laid down in the following cases: W., St. L. & P. Ry. Co. v. Rector, 104 Ill. 296 ; Same v. Shacklet, 105 Ill. 364 ; I. C. R. R. Co. v. Moffitt, 67 Ill. 431 ; Am. Ins. Co. v. Crawford, 89 Ill. 62; Wabash Ry. Co. v. Hanks, 91 Ill. 406; Singer M’f’g Co. v. Pike, 12 Ill. App. 506.
    Appellee’s briefs removed from file.
   Pleasants, P. J.

This suit by appellee, for personal injury ascribed to defective construction or condition of a sidewalk, resulted in a judgment on verdict for plaintiff of $1,800. We find no substantial error against appellant in any of the rulings below.

It is said the walk, at the place were the accident occurred, is not on a street, but within the right of way of the I., B. & W. R. R. Co. It is, however, within the corporate limits. The village authorities built and took and had charge of it for use as a sidewalk by the inhabitants and others generally, and it was so used without hindrance or objection by the company. Its necessity and importance to thy public are conceded. These facts made the village corporation responsible for its condition, as for that of any other. Dillon on Hun. Corp. § 1009.

The effect of Bruffett’s testimony, in connection with that of others, was for the jury to determine. In defendant’s instructions 8 and 9 they were fully advised with reference to the event of their finding that the defective place testified of was not the place where the accident occurred.

The first and third, for plaintiff, are upon the hypothesis of absolute negligence on the part of defendant. This, of course, included notice where that is necessary to constitute it, and in what cases it is so necessary was clearly stated in others on both sides. Negligence is the want of that degree of care which the law requires in a given case, and the degree required in this case was also fully set forth in others. ■ There was, therefore, no error or inconsistency in the omission complained of in these.

So that of the words “reasonably safe” or their equivalent, before “ repair,” in the fifth, could not have been misunderstood in the face of their use in the same connection in so many other places.

Heither actual notice, nor constructive by lapse of time, is required to be shown in cases of defective construction.

Upon disputed questions of fact there was a conflict of evidence, and this, is the third jury that has agreed the same way in relation to them. The judgment will be affirmed.

Judgment affirmed.


text:
    William P. Brinton v. Herman Einhaus.

      Negotiable Paper — Action against Payee as Indorser — Former Adjudication as to fact of Payment before Transfer.

    In an action against the payee as indorser on a note transferred to plaintiff after maturity and payment, it is held: That the defendant is liable for the amount of the note, and that the judgment establishing the fact of payment, in a suit by the plaintiff to foreclose a trust deed securing the note, is conclusive, the defendant having been a party to the foreclosure proceedings.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, .Judge, presiding.
    Messrs. Bonney & Woods, for appellant.
    Mr. Ira N. Moore, for appellee.
    . The transfer of a chose in action as unpaid amounts to an implied warranty that it is unpaid. Robinson v. McNeill, 51 Ill. 225; Plain v. Both, 107 Ill. 588; Brown v. Montgomery, 20 N. Y. 292; Morford v. Davis, 28 N. Y. 481; Watson v. Chesine, 18 Iowa, 202; Kingsley v. Fitts, 55 Vt. 293.
    Where a note is assigned after maturity, the assignor, under our statute, assumes to pay the note if the bringing of a suit would prove unavailing. R. S. 1874, Ch. 98, See. 7; Crouch v. Hall, 15 Ill. 263; Kestner v. Spath, 53 Ind. 288.
    The indorsement of this note by the defendant after maturing is equivalent to the drawing of a new note payable at sight. Light v. Kingsbury, 50 Mo. 331.
   Pleasants, P. J.

This case has b.een needlessly complicated by .the introduction of what is considered irrelevant matter. A statement of the material facts will suffice, without argument, to show that the judgment for appellee was right.

On January 15, 1875, William H. Gather gave his note to appellant for $500, due three years after date, with interest at ten per cent, per annum, payable semi-annually, which, with another for $1,000 to another party, was secured by a trust deed of real estate. In the summer or fall of 1882, appellant indorsed it in blank, and delivered it for negotiation to Warren F. Pitney, who sold it to appellee for its face value, less about five dollars of interest last accrued and which was unpaid and the interest previously accrued, which was endorsed and paid. In October, 1883, appellee filed his bill in equity to foreclose the trust deed, making Gather and his wife, the trustee, the payee of the other note and the appellant here defendants, all of whom except the trustee answered, and the holder of the other note also filed her cross-bill making all the others named defendants thereto, all of whom except said trustee answered, and replications to the answers to original and cross-bills were filed. At the June term, 1884, on final hearing upon said pleadings and the proofs, the court found, among other things, “ that said $500 note, payable to said Samuel P. Brinton, has been paid by said William H. Gather, and that the same had been paid off by said Gather before the same was transferred to said Einhaus, and that said Einhaus obtained said $500 note four years after the same had become due and payable, from one Warren F. Pitney, and that said Pitney was not authorized by said Gather to transfer the same to said Einhaus, and that said Gather never authorized the transfer of said note to said Einhaus.” The decree accordingly dismissed the original bill at complainant’s costs and “ forever barred ” him from enforcing payment of said $500 note from said William H. Gather, and from enforcing any lien on or against the real estate in said deed of trust described, reserving, however, to him, any legal rights he may have against said Pitney and said Brinton, growing oat of the purchase of said $500 note.”

Thereupon Einhaus wrote over the signature of ^appellant on the back of said note a special assignment to himself, and brought this suit to the next term against him as assignor, charging in several counts, respectively, among other things, that suit against the maker at any time since the assignment would have been unavailing, and that the defendant by such assignment warranted that said note except the interest thereon to that date was unpaid, and that if it had been unpaid it would have been worth $500, but that it had then been fully paid and was worthless, to which several special pleas were interposed, but afterward withdrawn upon a stipulation that any proper defense might be introduced under the general issue.

By agreement the case was tried without a jury, and upon a finding of the issues for plaintiff and assessment of his damages at $595.25 the court, after refusing a new trial, rendered judgment.

Appellant introduced evidence, against the record of 'the decree referred to, that when he parted with the note it had not in fact been paid, and also claimed that his assignment was not to appellee but to Pitney; whether that claim, if substantiated, would help him, we need not determine, for though it appears there was a time when he so understood it, and Pitney knew he did, his own testimony shows it was not until after the sale to appellee. He admitted that he delivered the note to Pitney, as his agent, to raise money upon it, but says that some time afterward Pitney told him he had concluded to keep it himself, though he could not then pay for it in full, but he did then pay him $300, and the residue within a few weeks, which $300 was part of the proceeds of its sale to appellee. Pitney testified that he made the sale to appellee, and " appellee that he made the purchase of Pitney, as agent of appellant.

That it had then been paid by the maker is established by the finding and decree mentioned, which are conclusive in this suit.

It thus appearing that he assigned the note to appellee for a valuable consideration after it had been paid by the maker, his liability under either- of the special counts referred to would seem to be clear. No citation of authorities is deemed necessary.

Whatever of hardship to him may be in this judgment must be due to the former adjudication of the fact of such payment. That adjudication remains in full force, and appellee was no more bound than he to prosecute an appeal or writ oí error thereon.

Judgment affirmed.


author: Conger, J.

text:
    Indiana, Bloomington & Western Railway Company v. Samuel Drum.

      Railroads — Killing of Stock — Negligence in Leaving Snow in Cattle Guard — Reasonable Time for Removal — Question for Jury — Instruction.
    1. The statutory duty of a railroad company to maintain suitable and sufficient cattle guards to prevent stock from getting on its track is not complied with when, for an unreasonable time, it permits its guards to remain filled up with snow, ice or any other substance which destroys their usefulness.
    2. In the case presented it is held: That an instruction touching the liability of the defendant for permitting snow and ice to remain in the cattle guard fairly presented the law to the jury, and that the question whether a reasonable time had elapsed for the removal of the snow and ice, was for the jury.
    [Opinion filed November 20, 1886.]

      Appeal from the Circuit Court of McLean County; the Hon. O. T. Reeves, Judge, presiding.
    Mr. Frank Y. Hamilton, for appellant.
    If the fences and cattle guards are sufficient to turn ordinary stock, having been properly constructed and maintained, the company is not liable for the stock that gets over the same and is killed, unless negligently or wilfully done. R. S. Ch. 114, Sec. 48; C., B. Q. R. R. Co. v. Magee, 60 Ill. 529; L., P. & B. R. R. Co. v. Caldwell, 38 Ill. 280; C. & N. W. R. R. Co. v. Hart, 13 Ill. App. 186; C., B. & Q. R. R. Co. v. Farrelly, 3 Ill. App. 60.
    The company is hot guilty of negligence in permitting its cattle guards to fill up with snow and ice. P. & R. I. R. R. Co. v. McClenahan, 74 Ill. 435; Hance v. C. & S. R. R. Co., 26 N. Y. 428; Blais v. M. & St. L. R. R. Co., 24 N. Y. Rep. 558; City of Chicago v. O’Brien, 111 Ill. 232.
    Messrs. Tipton & Beaver, for appellee.
   Conger, J.

This was an action brought against the railroad company for killing a colt which broke out of a field, got upon the public highway that led across appellant’s railroad, and from thence crossed a cattle guard so filled and covered up, at the time, with snow and ice, as to offer no obstruction to its passage onto appellant’s right of way, and was there killed by the cars of appellant.

The controversy arises over the following instruction: ‘ “ The court instructs the jury that if they believe, from the evidence in this case, that the plaintiff was the owner of the colt in controversy and that the colt passed in and over on the right of way of defendant’s ‘ railroad over a cattle guard, and that the cattle guard, at the time the colt passed over the same, was covered with snow and ice so that stock could readily pass .over the same, and that the cattle guard had been in the same conditio'n a sufficient length of time for the defendant to have known it and removed the snow and ice from the same before the colt passed over the same, and that whilst the colt was so on defendant’s right of way it was billed by defendant’s locomotive, as alleged in the declaration, then the jury will find for the plaintiff and assess the plaintiff’s damages at the value of the colt at the time the same was killed, and also to this sum the plaintiff is entitled to recover a reasonable attorney’s fee for the services of his attorneys in this case.”

We see no objection to this instruction. The language of the law is: “ That every railroad corporation shall also construct, and thereafter maintain at all road crossings * * * cattle guards suitable and sufficient to prevent cattle, horses, sheep, hogs and other stock from getting on such railroad.” This duty is not complied with when the company permits the guards to remain" filled up with snow, ice or any other substance which destroys their usefulness for the purpose for which they are constructed, viz: to prevent cattle from crossing them and thereby getting on the railroad.

The law is not so unreasonable, however, as to hold a rail, road liable for the consequences of storms until a reasonable time has elapsed thereafter to remove the snow and ice accumulating in the guards. We hold, however, that it is the duty of railroads to use reasonable diligence to make their cattle guards answer the purpose of their construction as well in the winter as at other seasons, and if they fail in doing so, they are liable.

In Dunnigan v. O. & N. W. E. W. Co., 18 Wis. 28, it is said : “When a railroad company permits its cattle guards to remain filled with snow, so that cattle which have gotten upon the highway without any negligence upon the part of the owner, pass over the guards and in consequence of being thus upon the track are injured by a train, the company is liable.”

The evidence in this case showed that this guard had been allowed to remain filled up with snow and ice for weeks, and it was a question for the jury to determine whether sufficient time had elapsed after the storms for its removal, or in other words, whether the railroad company had used reasonable diligence.

The instruction, we think, fairly presented this view of the law to the jury, and we see nothing in the evidence requiring us to say that their conclusion was not supported by it.

Affirmed.


author: Per Curiam.

text:
    City of Springfield v. Mary A. Seiglar.

      Defective Sidetoalk — Personal Injury — Action to Recover Damages— Verdict Sustained — Instructions.
    Where there is sufficient evidence, if believed, to support the verdict, this court will not interfere.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Sangamon County; the Hon. James A. Creighton, Judge, presiding.
    Messrs. Joseph M. Grout and Greene, Burnett & Humphrey, for appellant.
    Messrs. Patton & Hamilton, for appellee.
   Per Curiam.

This was an action for personal injury by means of alleged defect in sidewalk. Plaintiff recovered be-1 ow $200. She could not have received the inj ury complained of at the place mentioned after the walk was renewed, as shown. But the time of its renewal was not definitely fixed. It was not impossible, according to the evidence, that it was after the injury to plaintiff, and it is not denied that such a defect as was described, at about the place described, had existed for a long time before the renewal.

. The jury must have believed the plaintiff and her daughter as to the fact and place of the accident. No sufficient reason appears for overruling their judgment as to the credibility of the witnesses. Nor do we think the instructions given for plaintiff assumed any fact that was in question and to be proved.

Judgment affirmed.


text:
    Indiana, Bloomington & Western Railway Company v. Eno Hinshaw.

      Practice — Conflict of Evidence.

    Where the record presents only questions of fact arising upon a conflict of evidence, this court will not interfere.
    [Opinion filed November 20, 1886.]
    Appeal from the County Court of McLean County; the Hon. R. M. Benjamin, Judge, presiding.
    Mr. Frank M. Hamilton, for appellant.
    Mr. W. B. Carlock, for appellee.
   Per Curiam.

Appellee recovered judgment for $10, as damages for the loss of a cow killed on appellant’s road. We find in the record only questions of fact arising upon a conflict of evidence, and therefore can not interfere.

Affirmed.


author: Per Cwricm,.

text:
    Chicago & Eastern Illinois Railroad Company v. John Boggess.

      Railroads — Action to Recover Damages for Killing Colt — Instructions —Evidence.

    In an action to recover damages for the loss of a colt, alleged to have been killed through the negligence of the servants of the defendant company, it is held: That the questions of negligence were fairly submitted to the jury; that t certain instructions asked were properly refused, because they presented the old rule of contributory negligence, and permitted no comparison, and that the verdict is supported by the evidence.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Vermilion County; the Hon. J. W. Wilkin, Judge, presiding.
    Mr. William Armstrong, for appellant.
    Mr. F. Bookwalter, for appellee.
   Per Cwricm,.

This was an action commenced before a Justice of the Peace, by appellee, for damages for the loss of a colt alleged to have been killed on appellant’s track, through negligence of its servants. On appeal plaintiff recovered judgment on a verdict for $80. He claimed that the colt got upon defendant’s right of way through its negligence in allowing the cattle guards to remain for a long time filled up with and -obscured by snow, and that as the. train approached no danger signal was given. The questions of negligence and its effect were fairly submitted to the jury ; no substantial objections to instructions given are urged. Some were refused, and rightly, because they presented the old rule of contributory negligence and permitted no comparison. There was evidence to support the finding.

Judgment affirmed.


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    Mark D. Hawes v. Trustees of the Illinois Wesleyan University.

      Negotiable Paper — Notes—Subscription to Educational Institution— Condition — Parol Evidence.

    In an action by an educational institution on notes made as subscriptions on a proposition to raise $25,000, in sums of $100 and upward, the entire amount to be subscribed before any subscription should become binding, said subscriptions having been made at a time when said institution was engaged in raising a similar fund in sums of $500 and upward, it is he'd: That the acceptance, on account of said proposition, of a subscription of $5,000, constitutes no defense, said second sum of $25,000 having been raised without said subscription, and that parol evidence is admissible to show that the aggregate amount named in the condition of the notes has been actually obtained.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Morrison. & Whitlock and Beckwith, Brown & Kirby, for appellant.
    Messrs. H. G. Reeves and Betcham & Hatfield, for appellee.
   Pleasants, P. J.

By way of subscription to a building fund of the university, appellant made to appellees two notes for $100 each; one providing that it should not be binding until the full amount should be subscribed on a proposition to raise $25,000 in sums of $100 or upward, and the other, of later date, being for the 94th $100 of the $10,000 then required to make up that amount.

On these notes this suit was brought. Pleas of the general issue and set-off were filed, and upon trial by the court a judgment was rendered on the findings for plaintiffs for §236 after crediting a payment on account of $88.

The defense urged was that the full amount had not been obtained as required by the condition in the first note.

Dr. Munsell, who, as financial agent of the university, took an active part in raising it and had charge of it, testified that before this suit was brought he closed up his agency, made a full report to the trustees and turned over to his successor everything in his hands pertaining to it; that he then knew the exact amount that had been obtained, but could not now state it without referring to his report; that his recollection was entirely clear, however, that it was between twenty-six and twenty-seven thousand dollars, that it all came to his hands, and that nearly all of the subscriptions had been paid and the contemplated building erected. Hone of these statements were contradicted.

But this total included a certain subscription of $5,000, and appellant claims it should be counted on another proposition, which was, to raise a further sum of $25,000 in subscriptions of $500 and upward. Dr. Munsell testified that this further . amount had also been fully raised, in such subscriptions, without the one in question, and this was not contradicted. There is nothing substantial in the point.

It is urged that as these papers were not produced, noi any foundation laid for secondary evidence respecting them, this testimony was incom petent under the rule against parol proof of the contents of written instruments.

It appears that the greater part of them- — enough, with the receipts in like sums to make up the required aggregate — -had been surrendered to their respective makers on payment. They were not produced on the trial, nor further accounted for or proved. But we do not understand there was any occasion or attempt to prove their contents, or need to produce them. The fact that papers of the kind and aggregate amount mentioned in the condition of the note had been actually obtained was properly provable by parol, just as it would have been if the papers had been described as bank notes of a mmiimim denomination. The names, dates and amounts were fully shown in the report. If its admission was error, which under the' circumstances is not clear, it did no harm, since no other judgment than was rendered could properly have been rendered, if it had not been admitted. There seems to be no merit in the defense.

Judgment affirmed.


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    Chicago, Burlington & Quincy Railroad Company v. C. J. Owen.

      Railroads — Injuries to a Calf while in Transportation — Vicious Disposition — Review of Evidence — Negligence—How Determined.

    1. Whether a given act is negligent or improper is to be determined by the surroundings and conditions existing at the time, and which were, or ought to have been, known to the party sought to be charged.
    2. In an action against the appellant, as a common carrier, to recover damages for injuries to a calf alleged to have been sustained while in transportation through the negligence of the defendant’s servants, it is held: That the verdict in favor of the plaintiff is not supported by the evidence; that the calf was properly unloaded at the depot instead of at the stock pen; that, from the evidence presented, the injury resulted from the calf’s vicious disposition, unprovoked by any misconduct by the defendant or its servants, and that an instruction limiting the exceptions to the defendant’s liability to the act of God and the public enemy, was erroneous.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Adams County; the Hon. William Marsh, Judge, presiding.
    Messrs. J. F. Carrott and O. F. Price, for appellant.
    The law has introduced an exception in favor of the carrier of live stock, of unaccountability for its loss or injury resulting from its own uncontrollable vicious propensities, and damages incident to its carriage from its inherent natural character. Angell on Carriers, Sec. 214; Hutchinson on Carriers, Sec. 222 ; Whart. on Negl, Sec. 615 ; Cragin v. N. Y. Cent. R. R. Co., 51 N. Y. 61; Smith v. N. H., etc., R. R. Co., 12 Allen, 531; W., St. L. & P. R. R. Co. v. McCasland, 11 Ill. App. 491; C., R. I. & P. R. R. Co. v. Harmon, 12 Ill. App. 54; I. C. R. R. Co. v. Brelsford, 13 Ill. App. 251.
    There was no instruction in this case on behalf of the defendant, which stated that the defendant, under law, was not an insurer of the safety and delivery of live stock placed in its charge for transportation; and even if there had been, the second instruction given for plaintiff would still have been misleading and erroneous, as a correct instruction given for one side will not obviate an error in an instruction on the other side. C., B. & Q. R. R. Co. v. Payne, 49 Ill. 496; Adams v. Smith, 58 Ill. 417; Baldwin v. Killian, 63 Ill. 550; Quinn v. Donovan, 85 Ill. 194; Illinois Linen Co. v. Hough, 91 Ill. 63; W., St. L. & P. R. R. Co. v. Schacklet, 105 Ill. 364.
    Messrs. Bonney & Woods, for appellee.
    A verdict will not be set aside where the evidence is conflicting, even though it may be against the weight of the evidence. Morgan v. Ryerson, 20 Ill. 343; Millikin v. Taylor, 53 Ill. 509.
    Where the evidence is conflicting and the circumstances tend to support the verdict, it will not be disturbed. Gill v. Crosby, 63 Ill. 190.
    Where the evidence is conflicting, and that produced by - either party, considered alone, is sufficient to require a verdict in his favor, a new trial will not be granted on the ground that the verdict is not sustained by the evidence. Lewis v. Lewis, 92 Ill. 237.
    Where there is evidence from which the jury could properly find their verdict, it will not be disturbed, though the evidence may, in the opinion of the Supreme Court, justify a different result. T., W. & W. R. R. Co. v. Moore, 77 Ill. 217.
    Common carriers are liable for all accidénts and injuries freight may receive, except from the act of God and the public enemy. C., B. & Q. R. R. Co. v. George, 19 Ill. 510; Merchants’ Des. Tr. Co. v. Kahn, 76 Ill. 520.
    The-carrier of cattle is not responsible for injuries resulting from their viciousness of disposition, but the question, what was the cause of the injury, is one of fact for the jury. Hall & Co. v. Renfro, 3 Met. (Ky.) 51.
    A delivery or tender of the goods must be at a reasonable time and place, and the manner in which the same are delivered must be reasonable, and these are questions of fact for the jury to determine. 2 Redfield on Railways, 78; Hill v. Humphreys, 5 Watt & S., 123; Segura v. Reed, 3 La. Ann. 695; Gibson v. Culver, 17 Wend. 305; Bisk v. Newton, 1 Denio, 47.
   Pleasants, P. J.

Appellee shipped a Polled Angus bull calf from Abingdon, in Knox County, by appellant’s freight train, which left at 6 o’clock a. m., to Camp Point in Adams County, where it arrived at 11 o’clock of the same morning. The animal was tied with a rope some ten feet long attached to a ring in a short leathern halter. It was unloaded from the car on the passing track to the platform at the north end of the depot. Until untied to be so unloaded, it had appeared gentle enough, so far as is known, but then and thenceforth showed an uncommon degree of wildness and viciousness. The brakeman who was taking it out, being unable to hold it, was assisted by others, mostly train hands, and with considerable difficulty got it around to and through the door at the east end into the freight room, which was about twenty-five by forty-five feet in area. When those who had been assisting, apparently supposing the struggle was over, let go their hold of the rope and turned to withdraw, it suddenly attacked and butted them in turn with such fury that the whole party escaped by one way or another as quickly as they could, leaving it alone and unfastened. They immediately re-assembled in the office, west of and adjoining the freight room. The door between them was opened a little way and as the calf came to or was passing near it some one, reaching out, caught the rope and drew it in.

While Mr. Sweet, the engineer of the train, was holding it with one hand and the other stretched out to or toward the animal’s head, appellee came up and took hold of it also, but ,in a moment or so the calf jerked away, ran across to and .! against the east door, which was then also a little open, and by ,;.a second rush threw it off its bearings and escaped. It ran up along the railroad track three quarters of a mile and broke through a board fence into a pasture. The station agent immediately sent two men on horses to recapture it. They found it standing in mud and water, knee deep, with other cattle, and were unable by reason of its viciousness to drive it alone. When they attempted to do so it attacked them, on foot and on horseback. Finally by driving others with it they succeeded in getting it back to the station and into the stock pen. Then, after it had broken one rope with which it was tied to a post, appellee secured it with two others, and with the assistance of two men got it to his place, nearly a mile away, where on arrival it laid down and within an hour died.

There was no external mark of injury upon it and appellee and his witnesses suppose its death was caused by overheating from rage and violent action. Mo other evidence on that point was offered. The calf was six months old, and of extraordinary size and strength for its age, its weight being six hundred pounds or more. Appellee and his vendor testified it was worth §450.

This suit was brought upon the implied contract of appellants, as a common carrier; to safely transport and deliver it. The plea was the general issue, and the verdict was for the plaintiff for §450, on which the court, after refusing a new trial, entered judgment.

We think this verdict should have been set aside as being unsupported by the evidence. From the declaration and the testimony we should be at a loss to conjecture the particular breach of contract or act of negligence on which the plaintiff relied for a recovery. The argument alone discloses them. They are limited to the place at which the calf was unloaded, the teasing to which it is said to have been subjected, and the leaving the east door of the freight room partly open.

It would be useless to discuss the evidence at length; the conclusions to which we are irresistibly drawn will be briefly stated.

First. It was usual to unload a single head of live stock at the depot, and not at the stock pen, which was 300 feet east and north of it and upon another track. The plaintiff must be presumed to have known this, and assented in this instance, as he was expecting the calf by this train and had made no request on that subject. The north platform was very nearly on a level with the car floor. If the calf could have been tied in the freight room it would have been in as safe a place for it and as convenient for the plaintiff as the stock pen. Before" it was unloaded there was no reason to suppose it could not be so tied.

Whether a given act is negligent or improper is to be determined by the surroundings and conditions existing at the time and which were or ought to have been known to the party sought to be charged. It is easy to see, after a calf has broken an apparently suitable rope, that it might have been secured by a log chain, but that does not tend to prove the use of the rope was improper.

Second. The number of persons engaged in getting the calf ' into the freight room was necessary, and made so by its disposition and action. Plaintiff’s witness who so assisted, and was not an employe of the defendant, says “ it was about all they wanted to do;” and another that “it took their united strength to hold him.” There is no contradiction of this, nor any particle of evidence that in this operation they at all abused him in respect to either his body or his temper.

When they left the freight room the east door was completely closed, though not fastened, as it ought not to have been, since occasion for entering it was constantly recurring. It was a safe-guard, as closed, being a sound and heavy freight door, resting on rollers upon a track. While the calf was being held at the west or office door, Mr. Harris, who was not in the employ of the company, came in at the east and left it open, as he says, about three inches. The calf, after jerking away from Sweet and the plaintiff, ran directly at Harris and then shied to the door, striking it heavily with his head and shoulder, and by a second rush threw it far enough off its bearings to “ squeeze through.” Hi's escape should be charged not to any defect in the door, nor to the line of light through the three inch opening, but to his own furious wildness, which the company’s agents had no reason to anticipate.

But the point most confidently presented for plaintiff is founded upon his statement that when he came up to take hold of the rope, at the office door, Sweet was holding it with one hand and punching” at the calf, this way,” while it was ‘‘but- ' ting up at the door at him; ” that they were just having a good ■time,” and that he then “ told Sweet not to tease it in that way.” Just how he described by imitation the action which he described in terms, as “ punching,” is not shown, but no other-witness appears to have suspected that he was intending to tease it. Mr. Sweet, himself, swears he was trying to pet and pjacify it.” His action, so far as disclosed, was no less consistent with that purpose than with the one suspected by plaintiff, and as such was proper and natural — for who ever-held a vicious, wild or frightened animal and did not try, if he safely could, to stroke his head? To tease it was forbidden by his duty, and such a purpose is not to be presumed.

The manner in which defendant’s witnesses related the circumstances of their- overthrow and chase by this active, vigorous and mad young bull, is largely commented on as throwing a light upon their real aims and actions, which it is lamented this court can not have.

- A situation altogether serious in experience may be unavoidably comical in narration. We have been amused at the scene as presented in words on cold paper, and can readily understand how the account, as given on the witness stand, must-have appeared ludicrous even to the victims who were giving it, although they were sober-minded men, intent on business and duty only at the time of the occurrence, but can not regard that fact as a circumstance tending to impeach their claim, made on oath, to have acted in good faith.

The recapture of the calf and the means employed for that purpose were according -to the request of the plaintiff. He does not complain of anything in that connection.

It is shown that no mark of violence or injury appeared upon its body. It received no hurt directly from its transportation or delivery, but came to its death by overaction and overheating from its own disposition, unprovoked by any misconduct of the defendant or its servants.

For injuries resulting from such a cause the carrier is not liable. The second instruction limiting the exceptions to the act of God and of the public enemy, is conceded to be wrong in itself, and we doubt if it was cured by the third, which, it is said, included under the first of these exceptions the natural temper and disposition of the calf.

For these reasons the judgment will be reversed and the cause remanded.

Reversed and rema/nded.


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    John Rose v. Flora E. Vandercar, Administratrix.

      Action on Lost Note — Instructions—Errors—Extent of Search Required —Original Consideration — Question for Jury.

    In an action on a lost note, alleged to have been made by the defendant’s intestate, the only issue of fact being as to its genuineness, it is held: That many of the instructions, which were too numerous, were erroneous; that the holder was not required to make diligent search for the note “ wherever it might be found;” that it was error to assume that the plaintiff “ knowingly introduced to the jury false and fabricated testimony;” that the jury were improperly authorized to disregard the evidence of certain witnesses; that the suit was not for the original consideration; that it was for the jury to determine the weight of the evidence as to the genuineness of the note, and that it was error to instruct the jury that, in the absence of evidence as to what the consideration was, they might refuse to find the note genuine from evidence of handwriting alone.
    [Opinion filed November 20, 1886.]
    Appeal from the Circuit Court of Fulton County; the Hon. John C. Bagby, Judge, presiding.

      Messrs. Barrere & Grant, C. G. Whitney and C. F. Robinson, for appellant.
    Messrs. Gray & Waggoner, W. S. Edwards and W. H. Barnes, for appellee.
   Pleasants, P. J.

This was assumpsit by appellant against appellee. The declaration contained a special count on a note alleged to have been made by the deceased to plaintiff, and the common counts. Plea, the general issue-sworn to. "Verdict for defendant, new trial refused and judgment entered.

The only issue of fact was upon the genuineness of the note. It was claimed to have been lost, and upon proof thereof to the satisfaction of the court, secondary evidence of its contents was received. Witnesses who had seen it, and who claimed to have had the legal means of knowing and to know the deceased’s handwriting, differed in opinion as to the gen- " uineness of the signature, and there were circumstances in . proof tending to corroborate each. We have nothing to say as to the weight of the evidence, but must reverse the judgment for errors in the instructions given for defendant.

These instructions were needlessly and therefore dangerously numerous, considering the singleness of the issue. In the abstract they are not numbered, but judging from the paragraphs and subjechmatter there were twenty-three exclusive of that relating to'the form of the verdict. The -first assumes that there is evidence, which does not appear, impeaching the good faith and diligence of plaintiff’s search for the note, and the seventeenth holds him bound’ to show that immediately after he claims to have -lost it he instituted diligent search for it “ wherever it might be found” — a rule which would reach an unknown thief’s pocket. The eighteenth assumes the production of evidence tending to show that plaintiff “knowingly introduced to the jury false and fabricated testimony” — which counsel contend, but fail to convince us, was warranted by proof tending to show that his son in fact testified falsely. The jury are authorized to disregard entirely, except so far as it may be duly corroborated, the testimony of some new classes of witnesses : as those who are said to have been successfully impeached “ by proof of having made different statements at other times” (No. 10); wbo have testified;to any material fact that they did not swear to when witnesses on a former trial of the same cause and whose late statement of it is false, fabricated or untrue (No. 21); or who are shown to be persons “of bad reputation for truth and veracity in the neighborhood where they reside” (No. 13). It is to be presumed that court and counsel well understood that the generality of such reputation and the wilfulness of such misstatements are material elements in these cases respectively and .that they were omitted through haste and inadvertence.

The 7th is “that a promissory note is only evidence of an existing indebtedness from the maker to the payee, and that in case of the loss of a note a party may sue and recover for the original consideration of the note, in a suit brought for that purpose.” This suit was not for the original consideration, but distinctly upon the note. It would have been improper for the plaintiff to offer evidence in chief upon the issues made on the original consideration. The instruction was therefore irrelevant, yet may have suggested to a jury that as against an administrator he ought to prove the consideration, and that no injustice would be done him if he were remitted to the suit referred to in it. If it had been intended and proper to sajr that although positive proof of a want of consideration would be wholly unavailing in case the genuineness of the note were shown, yet such proofs, if made, might be considered in connection with other evidence as tending to show it was not genuine, this was not a proper way to say it. The 16th is to the same effect. Further use of the same idea was improperly made, for in the 22d it is said that, to prove its genuineness, it was competent for the plaintiff to prove what it was given for, and that if no such proof has been offered, but only the opinion of witnesses as to the handwriting of the deceased, the jury “ may disregard such evidence and refuse to find the note to be genuine from that evidence alone, if they find the same to be weak, unsatisfactory and not convincing,” and then the 23d and last told them as matter of law that without proof of consideration such evidence was weak, unsatisfactory and not convincing — the language being that such evidence is of a character little worthy of credence, and in the absence of evidence as to what the alleged note was given for, the jury may refuse to find the al’eged note to be genuine from such evidence of handwriting alone.”

It can hardly be necessary to cite authority to show that this was a clear invasion of the province of the jury. There was nothing in the conduct or position of the witnesses, as set forth in these instructions or in the nature of their testimony, that would authorize the jury to disregard it. 'They were not bound to believe it, but were bound to consider it, and upon its consideration to determine for themselves whether it was fit to be believed. The error , of the court in thus discrediting it was so serious as to entitle the plaintiff to a new trial, even if we were of opinion that the verdict was right. The judgment will, therefore, be reversed and the cause remanded.

Reversed and remanded.


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    P. Q. Harrison v. Ann Hart and Francis Hart, Executors, etc.
    Scire Facias to make Third Person Party to a Judgment — Pleading—Defenses — Former Judgment — Contradiction of False Return — Review of Authorities.

    I. Upon scire facias to make a third person a party to a judgment, rendered upon a former judgment of the same court against him and the defendant in the last judgment, it is held: That every good defense must be a defense against the former judgment and not against the note or account on which it was founded; that the defenses, non assumpsit, non est factum and nil debit, were irrelevant, even if the plea setting them up was not bad for duplicity; and that a rejoinder to a re; lication averring that the record of the judgment and return showed personal service, which avers that said-return is false, is insufficiert at law.

      2. Where an officer’s return, appearing in the record of a former adjudication, shows an actual personal service, it can not be contradicted in a collateral proceeding at law by evidence dehors the record.
    [Opinion filed December 1, 1886.]
    Appeal from the Circuit Court of Morgan County; the Hon. Cyrus Epler, Judge, presiding.
    Messrs. Brown & Kerry, for appellant.
    The real question presented by this record is whether a party defendant can be permitted to contradict the return of the Sheriff or whether he must submit to a judgment and take his chances for indemnity in an action against the Sheriff for a false return.
    As between the original parties' and their representatives, an officer’s return is butjprima faeie evidence of its truth, and may be contradicted. Sibert v. Thorp, 77 Ill. 43; Owens v. Ranstead, 22 Ill. 161; Brown v. Brown, 59 Ill. 315; Hickey v. Stone, 60 Ill. 458; Ryan v. Lander, 89 Ill. 554; Union Nat. Bank v. First Nat. Bank, 90 Ill. 56; Chicago Electric Co. v. Congdon Brake Co. 111 Ill. 309.
    A similar rule has been announced in the States of Connecticut and Wisconsin. Watson v. Watson,.6 Conn. 334; Case v. Bank, 16 Wis. 52.
    The English rule that the return of the Sheriff can not be contradicted has been relaxed in this country. Ryan v. Lander, 89 Ill. 554.
    To deny a person the right to contradict the return is the equivalent of saying that the judgment may be rendered by a court against a person without notice and without jurisdiction of his person.
    If a sale had taken place under the original judgment, and a stranger had purchased upon the faith of the record, we will admit that at law the appellant could not question the return, as against the innocent purchaser, but would at law be remitted to his action against the officer for a false return.
    Mr. John A. Bellatti, for appellees.

      The cases wherein the Supreme Court have held that the return of the Sheriff is only “prima fade evidence of the facts therein stated, and may be put in issue by plea in abatement before judgment,” are cases where the court have not yet passed upon the return, and found that it had jurisdiction, and the return was therefore, only the testimony on oath of the officer, and to hold that it might be contradicted' was certainly right. But in this case, the return of the officer has attained to the dignity of the record of the Circuit Court; that is to say, the Circuit Court found that the party had been duly served with process and that the court had jurisdiction of his person, and thereupon rendered judgment against him, and the summons and the return thereupon became a part of the record of that judgment, and can not be contradicted. Hunter v. Stoneburner, 92 Ill. 75; Barnett v. Wolf, 70 Ill. 76; Zepp v. Hagar, 70 Ill. 223; Harris v. Lester, 80 Ill. 307; Welch v. Sykes, 3 Gilm. 197; Bimeler v. Dawson, 4 Scam. 536; Hall v. Williams, 6 Pick. 232.
    The above cases established the rule: “ That if the record shows affirmatively that the defendant was personally served with process, it furnishes conclusive evidence of that fact, and the defendant can not controvert it.”
   Pleasants, P. J.

This was a sei.fa. to make appellant party to a judgment of the Circuit Court of Morgan County rendered at the May term, 1881, in favor of the testator of appellees, against Benjamin Berry, who was impleaded with him, appellant not being found.

He filed two pleas. The first averred that said judgment was rendered upon a former judgment of the same court, rendered November 22, 1872, in favor of the same plaintiff against said Berry and this defendant, for $610.25 damages, $7.85 costs, and that in said case the court did not have any jurisdiction of the person of this defendant; that no process of summons was ever served in said cause upon him, and he did not in any way submit himself to the jurisdiction of said court, and it did not have any jurisdiction to render said judgment against him.

The second avers that said first judgment was • rendered in an action of assumpsit brought upon a promissory note, alleged to have been executed by said Berry and this defendant to said Matthew Hart, and that this defendant did not undertake and promise as alleged in the declaration therein; that he did not make and deliver the promissory note therein described; that said note was not his act; that he did not owe and was not indebted to said Hart as was alleged in said declaration in any sum, either upon said note or any other cause of action whatever. It also avers that the court did not have jurisdiction of the person of this defendant; that he was not served with process and did not appear, nor in any other way, manner or form submit himself to the jurisdiction of said court whereby it could or did have jurisdiction to render said judgment against him.

To this second plea the plaintiffs interposed a special demurrer for duplicity, which was sustained.

To the first they filed a replication that the record of the proceedings and of the judgment rendered November 22, 1872, in said cause, now remains in this, the said Circuit Court of Morgan County, and that the said record shows that said court in said cause did have jurisdiction of the person of said defendant Harrison, and shows personal service of process therein upon him.

Defendant rejoined that the summons in said cause was not served upon him by reading or otherwise, and.that the return of said summons wherein it appears that the same was served upon him, was and is untrue and false.

A demurrer to this rejoinder was sustained, and the defendant abiding, judgment was entered, making him party to the judgment of May term, 1881, in the usual form, and he appealed.

The errors assigned are that the court sustained these demurrers and rendered the judgment it did. Since the decisive question in the case arises upon the demurrer to appellant’s rejoinder, - we have not anxiously considered the objection to the second plea. At first blush it would seem to be very badly affected with duplicity, for it sets up, first — a compíete defense to the judgment in the original suit on which the last was brought, that the court had no jurisdiction of the defendant’s person, and then several defenses to the causes of action on which it might have been rendered — non assumpsit, non est factum and nil debet. But perhaps upon further reflection the fault may be found to be superfluity only. The judgment to which it was here sought to make the defendant a party was rendered in an action of debt upon a former judgment alone. Whatever were the causes of action under the special or common counts of the declaration in the original case, were treated as merged in the judgment. Every good defense must therefore be a defense against that judgment and not against the note or account on which it was founded, and hence these defenses, non assumpsit, non est factum and nil debet, being applicable only to the causes of action which, according to the declaration in the second suit, had become merged in that judgment, were irrelevant in an action upon the judgment alone. Treating them, then, as surplusage, the plea was but a duplicate of the first, that the judgment was void for want of jurisdiction of the defendant’s person, and the replication to the first was in substance an answer to both. Was it met by a sufficient rejoinder 1

That an averment against the record in a collateral proceeding at law is inadmissible, is well understood. But it is claimed that an officer’s return of process is not such a record as is conclusive under the rule, but is only prima fade proof of the facts therein stated, according to the tendency and scope of modern authorities. At common law it was conclusive, and the only remedy for a false return was an action for damages against the officer. But it is true that under the practice prevailing generally in the United States, by which service is allowed to be made, and with like effect as if actually personal, by leaving a copy at the usual place of defendant’s residence with a member of his family over a specified age, and the officer is to be the. judge of these facts, the reason which supported this rule in England is materially weakened, as is well shown in Bond v. Wilson, 8 Kan. 228. The rule itself has therefore been relaxed in several .cases by the courts of the different States so that, as here applied, it is Tby no means uniform. Our own Supreme Court has had frequent occasion to consider the subject, and we deem it unnecessary to look beyond its decisions for a solution of the present question.

From these it appears that because in many cases the remedy for a false return by action against the officer is inadequate, equity will relieve against a judgment entered, upon it. Owens v. Ranstead, 22 Ill. 161; Hickey v. Stone, 60 Ill. 468.

So also it will set aside a default entered upon such return, on motion promptly made and sufficiently supported by affidavits. Brown v. Brown, 59 Ill. 315.

And at law an officer’s return of service is not per se such a record as imports absolute verity, but is so far only prima facie evidence of the matters therein recited that it may be put in issue before judgment, by plea in abatement verified by affidavit and interposed at the earliest opportunity. Mineral Point R. R. Co. v. Keep, 22 Ill. 9; Holloway v. Freeman, 22 Ill. 197; Sibert v. Thorp, 77 Ill. 43; Ryan v. Lander, 89 Ill. 554; Chicago National Bank v. First National Bank, 90 Ill. 56; Chicago Electric Co. v. Congdon Brake Co., 111 Ill. 309.

It is further held that where the return or finding in the record of a court of general jurisdiction of a sister State, which, under the Federal Constitution, stands on the footing of a domestic judgment, shows that the service was not actually personal, but by leaving a copy at his residence etc., it is only prima facie proof of jurisdiction of the person, and therefore may be contradicted and overcome. Bimeler v. Dawson, 4 Scam. 536; Welch v. Sykes, 3 Gilm. 197.

But where the return or finding shows an actually personal service or appearance, the holding seems to have been constant that it can not be contradicted by evidence dehors the record. It was so held in Rust v. Frothingham, Breese, 258 (Beecher's Ed. 331), in the last two cases above cited, and in Barnet v. Wolf, 70 Ill. 76; Zepp v. Hager, 70 Ill. 223; Harris v. Lester, 80 Ill. 307; Hunter v. Stoneburner, 92 Ill. 75.

In the case at bar, as has been seen, the replication averred that the record of the judgment and the return showed personal service of the process upon the defendant. The rejoinder admits they do, but avers they are not true.

Upon the authorities above cited we are of opinion that chis was insufficient at law and therefore that the demurrer was properly sustained.

Judgment affirmed.


text:
    Thomas H. Johnston v. Anthony G. Willey.

      Exemptions — ¶ 14, Ch. 52, Starr & C. Ill. Stat. (Act of1877) — Schedule —Refusal to Malee — Subsequent Compliance — Reasonable Time — Question for Jury.

    1. The positive refusal by the owner of personal property to make a schedule at the time of the levy under execution, upon due notice and opportunity given, does not of itself prevent or estop him from making such schedule within a reasonable time thereafter.
    2. What is a reasonable time for making and delivering the schedule depends upon the special circumstances of each case, and is a question for the jury. In some cases it should be before levy. In others it' will be in time if before sale.
    3. In the case presented" no question of fraud arises. The owner’s refusal was in ignorance of his duty and without intention to waive his claim. He made and delivered the schedule within a few hours, and as soon as he could get legal advice. Whether the time was reasonable was a question, for the jury.
    [Opinion filed December 1, 1886.]
    Appeal from the Circuit Oourt of Christian County.
    Messrs. Provine & McBride, for appellant.
    Mr. Frank Drennen, for appellee.
   Pleasants, P. J.

Appellee got judgment in replevin for a span of mules, against appellant who, as a Constable, had taken them under writs of execution against him.

He was a married man, resid ing with his family. The Sheriff, holding another execution, bad set off to him 8400 worth of his effects, including these mules, under the provisions of Sec. 2 of the Act approved May 24,1877. Appellant came in when the Sheriff was taking a list of the property, and after it was completed informed appellee of the writs in his hands and asked what he could do for him, to which appellee replied that he could do nothing, as the Sheriff had levied on all his property. Two days afterward appellant again saw him and insisted that he should turn out property or make a schedule. Appellee said he didn’t know that he needed to make a schedule as he had got his set-off, and that was all he wanted. Appellant insisted that he also must have a schedule or he would make a levy. Appellee told him to go ahead and he would replevy; and thereupon appellant immediately took the mules.

In the evening of the same day, after consulting a lawyer appellee made' out a schedule and gave it to a friend, who, by his direction, presented it to appellant and demanded the property. Appellant declined to give it up, saying that appellee had refused to schedule and it was now too late.”

We hold that as matter of law it was not necessarily too late, even after a positive refusal, upon due notice and opportunity given, and levy thereupon made.

The statute provides that whenever ” — that is at any time when, no less than in any case in which — a debtor, against whom an execution has issued, may desire to avail himself of its benefits, he may do it by delivering to the officer a proper schedule. Ordinarily this should and would be done before levy, but the only limitation by the statute of the time for its effectual delivery is that which is necessarily implied, viz., that it must be before the writ is executed and the officer’s control of the property lost by sale thereunder, and what is generally implied where time is given without a more specific limitation, viz., that it must he within a reasonable time. What is a reasonable time will depend upon the special circumstances, and is a qtiestion of fact for the jury. In some cases it should bo before levy; in others it will be in time if before sale.

Wright v. Deyoe, 86 Ill. 490, and the other cases cited, in which it was held that the debtor must make his claim and selection — if he has reasonable notice and opportunity — before the levy, arose under the former statute, and are believed to be inapplicable to the one now in force. ¡Nor do we find in this act, or other law, or in reason, any warrant for the idea that his right is necessarily and absolutely forfeited by a mere declaration that he will not make a schedule. So long as he refuses or neglects, after due notice and opportunity given, to make it, the officer may lawfully proceed in the execution of his writ; but his proceedings may> under some circumstances, be arrested by the delivery of a proper schedule, at any time before it is completed. It is the actual delivery or non-delivery of the schedule before such time and within a reasonable time that determines his right, and not the promise that he will, or the declaration that he will not deliver it. In either case he may, under some circumstances, be justified in changing his mind. -

Upon this question Blair v. Parker, 4 Ill. App. 409, and Chapin v. Hoel, II Ill. App. 309, are cited for appellant. ¡Neither is in point. The first was an action for the penalty prescribed for selling exempt property. The debtor had delivered his schedule, with due effect. But there was certain “ property owned by him and not included in ” it. The statute expressly and affirmatively declares that such property “ shall not be exempt.” The debtor sought to exempt it, three or four days after it was levied on by a second schedule, and the court held that such a proceeding was not provided for nor allowed by the statute. In the other the plaintiff had bought the property from the execution debtor after, the lien attached and when no schedule had been made to exempt it and the court held that the debtor could not protect property by a schedule made after he had sold it. We know of no authority or reason for holding absolutely that he could not do it after and because of a mere declaration that he would not, even though it were followed by a levy made in consequence of it.

Such a declaration would not operate as an estoppel because the levy would be as lawful without as with it, and in no case would it be a ground of authority to sell. The writ alone is the officer’s warrant. If, then, a levy which is lawful without the debtor’s consent to it would not bar him, it is riot perceived how his assent added would necessarily give it that power.

In this case no question of fraud is involved. Appellee’s refusal at first was in ignorance of his duty, and in such manner as to rebut any inference that he intended to violate it or waive his claim, and he made it in due form, within only a few hours of his refusal, and as soon as he could get reliable advice in relation to the law. Whether this was or was not, under the circumstances, within a reasonable time, was a question of fact. We think the finding was right, and the judgment will be affirmed.

Judgment affirmed.


author: Wall, J.

text:
    John A. Rutledge et al. v. Mary Rutledge.

      Widow's Award — Secs. 74 and 75, Ch. 3, R. S. — Appraisers' Estimate —Specific Articles Possessed by the Estate to be Included — Value of Family Pictures and Wearing Apparel, Jewels and Ornaments, Need not be Estimated — Specific Articles of Special or no Value.

    1. In making their estimate of the widow’s award, under Secs. 74 and 75, Ch. 3, R. S., the appraisers are required to appraise the articles actually possessed by the estate, which are within the description of Sec. 74.
    2. The appraisers are not required ■ to estimate the value of the family pictures and wearing apparel, jewels and ornaments of the widow and her minor children, all of which are included in the award without reference to their value.
    3. If the estate has the specific articles which fairly and substantially answer the designation of the statute, they or their value as fixed by the appraisers must, be taken.
    4. It seems that if the specific articles possessed by the estate are so worthless as to be unfit for ordinary use, or if they have an unusual value for some special use, the appraisers should disregard and ignore them.

      [Opinion filed December 1, 1886.]
    In error to the Circuit Court of DeWitt County; the Hon. G.W. Herdman, Judge, presiding.
    Mr. George B. Graham, for plaintiffs in error.
    Our statute providing for an allowance to widow was intended to provide for widow and family substantially the amount exempt to heads of families. Rev. Stat. 1874, Sec. 74; Williams v. Hall, 33 Tex. 432; Hardin v. Osburn, 43 Miss. 532; Wally v. Wally, 41 Miss. 657.
    When specific articles of property are mado exempt by law, such specific articles only can be claimed by the person entitled thereto, and not other property in lieu thereof, unless the act plainly confers such right; and this is true even if the claimant has not the articles specifically exempt. Wygant v. Smith, 2 Lans. 185; Friedlander v. Mahoney, 31 Iowa, 311; Pool v. Reid, 15 Ala. 826; State v. Farmer, 21 Mo. 160; Mahan v. Scruggs, 29 Mo. 282.
    When the specific articles to which the widow is entitled are of the estate, it becomes the duty of the appraisers to estimate the value thereof and set them apart to the widow and certify the same to the court. R. S., Chap. 3, Sec. 75; York v. York, 38 Ill. 522; Wally v. Wally, 41 Miss. 657.
    At the time of the decision in York v. York the statute did not in terms require, as it now does, the appraisers to set apart the specific articles to the widow.
    Messrs. Fullee & Mosrsorr, for defendant in error.
   Wall, J.

The question presented here is as to the construction of Secs. 74 and 75, Ch. 3, R. S:, and arises upon the appraisers’ estimate of the widow’s award.

The estimate was as follows ;

Family pictures and wearing apparel, jewels and ornaments of

This was objected to by the heirs. It appeared that there were of the estate the various articles specified in Sec. 74, witli one or two exceptions. For instance there was a sewing machine, necessary beds, bedsteads and bedding, household and kitchen furniture, besides wearing apparel, family library, etc.; but although these were good and sufficient and so regarded by the witnesses, for a man in the circumstances of the deceased, the appraisers did not consider or appraise the value of the articles actually possessed by the estate and answering the description given in See. 74, but made an estimate on some imaginary basis of what such articles might be worth; the avowed object as stated by the appraisers being to give the widow such an allowance in gross as they thought she ought to have in view of the magnitude of the estate. The appraisers were asked and, over objection, permitted to answer whether they regarded the aggregate smn of §2,500 as a reasonable allowance, considering the estate. Other witnesses were asked the same questions, and it is apparent the estimate was based mainly upon this idea — -not taking into account the value of the articles answering to the designation of the statute which the estate had.

The estimate of the appraisers was approved by the court and this ruling is assigned as error.

Sec. 74 provides that the widow, residing in this State, of a deceased husband whose estate is administered in this State, whether the husband died testate or intestate, shall in all cases, in exclusion of debts, etc., be allowed as her sole and separate property the following:

First. The family pictures and the wearing apparel, jewels and ornament of herself and family.
Second. School books and family library of the value of §100.
Third. One sewing machine.
Fourth. Necessary beds, bedsteads and bedding for herself and family.
Fifth. The stoves and pipe used in the family with the necessary cooking utensils, or in case they have none, §50 in money.
Sixth. Household and kitchen furniture of the value of §100.
Seventh. One milch cow and calf for every four members of the family..
Eighth. Two sheep for each member of the family and the fleeces taken from the same, and one horse, saddle and bridle.
Ninth. Provisions for herself and family one year.
Tenth. Food for the stock above specified, six months..
Eleventh. Fuel for herself and family for three months.
Twelfth. §100 worth of other property suited to her condition in life, to be selected by the widow.

Which shall be known as the widow’s award; or the widow may, if she elect, take and receive in lien of the foregoing, the same personal property or money in place thereof as is or may be exempt from execution or attachment against the ' head of a family residing with the same.

See. 75 provides: The appraisers shall make out and certify to the County Court an estimate of the value of each of the several items of property allowed to the widow, and it shall be lawful for the widow to elect whether she will take the specific articles set apart to her or take the amount thereof ont of other personal property at the appraised value ■thereof, or whether she will take the amount thereof in money, or she may take a part in property and a part in money as she may prefer; and in all such cases it shall he the duty of the executor or administrator to notify the widow as soon as the appraisement shall be made, and to set apart to her such article or articles of property, not exceeding the amount to which she -may be entitled, as she may prefer or select, within thirty days after written application shall be made for that purpose by such widow.

And if any such executor shall neglect, he shall be punished, etc., etc. When there is not property of the estate of the kinds mentioned in the preceding section the appraisers may award the widow a gross sum in lieu thereof, except for family pictures, jewels and ornaments.

In the case of York v. York, 38 Ill. 522, the Supreme Court in considering a similar statute held that the legal title of the specific articles vests in the widow upon the death of the husband, and if she dies before reducing the articles or their value to possession, and before administration is granted on the husband’s estate, her administrator may sue for and collect the value of the same from the husband’s estate, and .say, among other things, that the statute requires only that the appraisers shall make out and certify “ an estimate of the value of each article of specific property in order, as we understand) that the administrator may not include them as assets and may have credit for their value on the settlement of his administration with the court.”

In Strawn v. Strawn, 53 Ill. 263, the court say: “ The reason able intent to be imputed to the Legislature is that it designed the appraisers, in fixing this amount, should take into view the condition and mode of life in which the widow was left by the death of her husband and to regard as necessary that furniture which is the ordinary and appropriate furniture of such homesteads.”

The final clause of Sec. 75 is an express recognition of the duty of the appraisers to estimate the specific articles possessed by the estate and not other ideal articles of the same kind. When it says if there is not property of the estate of the kinds mentioned in the preceding section a gross sum in lieu thereof may be awarded it is clear that the converse is intended, and if there are such articles, they or their value must be taken.

We are of opinion the estimate in this case was made upon an erroneous basis as to all the specific articles which were possessed by the estate.

The first item in the 74th section is for the family pictures and wearing apparel, jewels and ornaments of the widow and children. As to these no valuation is required. Whatever they may be they go to the widow.

They may be worth much or little, they are hers. This estimate, however, makes an arbitrary allowance of $400 for this item, regardless of the final clause of Sec. 75, which prohibits a gross allowance therefor.

If the estate has the specific articles which fairly and substantially answer the designation of the statute, they, or their value as fixed by the appraisers, must be taken. Their value is the basis of the allowance. If the widow prefers, she may take their appraised value in other articles or in money, but it is not admissible in such a case, when the estate really has the artie’es, to value them at a low, or even a fair figure, and then, as the basis of allowance, fix the value of such articles as though not possessed, upon some ideal or imaginary standard, for the purpose of swelling the aggregate allowance, in order to meet the appraisers’ view of what the widow ought to have.

If the chattels possessed by the estate are so worthless as to be unfit for ordinary use, the appraisers should disregard and ignore them; and so, if they have unusual value for some special use, as for breeding purposes and the like, it would be proper to treat them as not within the true spirit and intent of the statute.

The law, while it ever has been and should be construed liberally for the benefit of widows and minor children, must be followed and observed. The appraisers can not be permitted to substitute a different rule in any case.

The judgment of the Circuit Court will be reversed and the cause remanded with directions to set aside the estimate.

Reversed a/nd remanded.


author: Pillsbury, J.

text:
    Fourth District
    August Term, 1886.
    John M. Crowell v. Mace Deen and Julia A. Deen.

      Judgment for Costs — Minute of Court — ■Unauthorized, Change by Cleric ivith Entry against Opposite Party — Bill to Amend, set aside Execution and Sale, and, Cancel Certificate of Purchase, Sustained — Evidence.
    Upon a bill to have thé record of a judgment for costs amended, to set aside the execution issued thereon and a sale of real estate thereunder, and to cancel the certificate of purchase issued to the defendant, the purchaser, it is held: That the judgment complained of was never in fact pronounced by the court, the clerk having had the judgment entered against the defendants upon his understanding that the minute, “continued at costs of plaintiff,” entered upon the docket by the court, was a mistake; that the clerk was without authority to substitute his recollection for the written memorandum of the court, and that the order of the court, if wrong, worked no injury to the plaintiff in the original suit, the final judgment having been against him.
    [Opinion filed November 24, 1886.]
    Appeal from the Circuit Court of Johnson' County; the Hon. David J. Bakeb, Judge, presiding.
    Mr. J. F. McCartney, for appellant.
    The law nowhere requires the Judge to keep minutes. The law requires the clerk to be present to perform his duties as clerk in time of court. Governor v. Dodd, 81 Ill. 162.

      Officers are presumed to do tlieir duty. The Judge is presumed to pronounce the correct judgment of the law. The clerk is presumed to correctly enter that judgment in the record. There being no obligation of the Judge to make a minute of the pronounced judgment, such presumption does not go to the' minute that it is correct.-
    The record in this case, showing a valid judgment against appellee which became a lien after execution, went into the officer’s hands, we are not called on to defend, but the party who denies its validity takes the burden on himself.
    Messrs. Mulkey & Leek, for appellees.
    It is well settled that a court will not hesitate to amend a record by the minute of the Judge of the court. When the minutes entered in the Judge’s docket, in a given case, are shown to be in the handwriting of the Judge, they are conclusive evidence of the order made in the cause, and can not be contradicted or explained by parol evidence. Coughran v. Gutcheus, 18 Ill. 390; Forquer v. Forquer, 19 Ill. 68; McCormick v. Wheeler, 36 Ill. 114; Seely v. Felton, 63 Ill. 101; Cairo & St. L. R. R. Co. v. Holbrook, 72 Ill. 419; Church v. English, 81 Ill. 442; Gillett v, Booth, 95 Ill. 183.
    It is a well settled principle of law that that which rests in writing can not be proved by parol evidence. Chambers v. The People, 4 Scam. 351; Williams v. Jarret, 1 Gilm. 120; R., R. I. & St. L. R. R. Co. v. Lynch, 67 Ill. 149; Fagan v. Hosier, 68 Ill. 84; Walker v. Douglas, 70 Ill. 445.
    It is equally well settled that that which rests in writing can not be contradicted by parol evidence. Zimmerman v. Zimmerman, 15 Ill. 84; Garfield v. Douglass, 22 Ill. 100; Hutton v. Arnett, 51 Ill. 198; Gibbons v. Bressler, 61 Ill. 110; Taft v. Schwamb, 80 Ill. 289.
    The case of Gillett v. Booth, 95 HI. 183, is decisive of the case at bar.
   Pillsbury, J.

This was a bill in equity filed by the appellees- against the appellant, praying to have the record of a judgment for costs amended and to set aside the execution issued thereon, and to set aside a sale of-real estate made thereunder and cancel the certificate of purchase issued to appellant, who was the purchaser at the sale. Many of the facts out of which the present controversy arises may he said to be admitted, or not disputed, and briefly stated are, that on the 31st day of January, 1878, the appellant commenced an action of replevin against appellees before a Justice of the Peace to recover the possession pf a horse, and being successful before the Justice the case was removed into the Circuit Court upon the appeal of the defendants. At the November term of the Circuit Court the parties were present with witnesses ready to try said cause, but the day before it was reached for trial the defendants made an application to have the cause continued on the ground that two members of their family had suddenly died, and being conceded to be sufficient it was understood if the cause should be reached before court adjourned it should go over the term. On the day following the case was reached _ in its regular order for trial, and the court entered upon his docket the minute of continuance as follows : “ Continued at costs of plaintiff,” and at same time ordered that defendants file a new appeal bond in the sum of §80 by the first day of April, 1879. After the adjournment of that term of court and while the clerk of the court was writing up the record he noticed the entry by the court upon its docket that the case was continued at plaintiff’s costs, and understanding that it should have been at the defendants’ costs he drew pencil marks across the word plaintiff in the order and wrote upon the margin of the Judge’s docket the following: “Judgment against Appellant at November Term, 1878, 13, December 1878,” and the judgment for costs was written up in accordance with this memorandum of the clerk. At the November term, 1879, of the Circuit Court a trial was had upon the merits in the replevin suit, and final judgment was rendered therein in favor of the defendants, the present appellees, for a return of the property replevied and for costs. On January 25, 1881, an execution was issued against the appellees upon the judgment for costs, entered of record by the clerk as above stated and levied upon two town lots claimed by the appellees as their homestead. A sale was made and the appellant became the purchaser. The questions of fact disputed are whether the court annonncedat the time the motion was made for a continuance, that if it had to go over the term it must be at costs of the defendants, and whether the property levied upon was the homestead of appellant. The court decreed as prayed, and the defendant below appealed. After a careful examination of the evidence contained in this record we have come to the conclusion that it sustains the finding of the court below, that the judgment entered of record by the clerk was never in fact pronounced by the court in the replevin suit. If the oral testimony is to be considered as competent to show what the judgment was as to payment of costs it is sufficient to justify the decree. The Judge who entered the order for the continuance testifies that he intended to continue generally, and he is very strongly corroborated by other witnesses who swear that he so announced at the time. Excluding the oral testimony of this character and the same result must follow from the undisputed facts. It is conceded that the clerk kept no minutes of the orders of the court, and that after the adjournment of the court for the term he changed the Judge’s minutes, and then made such alteration the basis of his action in entering the judgment order. We are not advised of any rule of law or practice that Avoiild authorize such action of the clerk. The only Avritten evidence of the action of the court remaining in his office was this memorandum made by the Judge upon .his docket, and it Avould be an exceedingly dangerous practice to permit the clerk in vacation to substitute his recollection of the action of the court in any given case for such written evidence, even though in so doing he may honestly believe that he is correcting an error or mistake of the court. As he kept no minutes of the action of the court he should not have entered an order contrary to the court’s minutes until ordered to do so by the court in some proceeding instituted for the purpose of correcting such minutes. If he had kept such minutes and the order entered by him had conformed thereto, a different question Avould be presented, one however not now requiring further notice. If we take an. equitable view of the case it will appear that in correcting the judgment no injury was done the appellant. He, as shown by the final judgment in the replevin suit, had brought an unfounded action against the appellees here, and the costs were adjudged against him; and if a trial had taken place at the term the cause was continued a like result would have followed. And if the judgment should be corrected to conform to the intention of the court to continue generally (as the court has found the fact to be) the appellant would be in no better condition, as in such case all the costs would finally have been taxed to him, resulting the same as the order that was actually entered, as evidenced by the Judge’s minutes. The evidence being sufficient to sustain the decretal order in setting aside the execution sale and certificate, upon the grounds above stated we affirm it, without inquiring whether the other disputed fact, that the . lots were the homestead of the appellant, has been proven.

Decree affirmed.