text:
    Nellie Gary, Defendant in Error, v. John H. Senseman, Plaintiff in Error.
    1. Judges—when order by judge not hearing ease entered without jurisdiction. Where after the hearing upon an appeal to the Circuit Court from a petition filed in the County Court to set aside an executor’s final report and requiring the trustee appointed in the will to make a report showing how the trust funds were invested and for general relief, and after the matter had been taken under advisement, an amended petition was filed containing radical changes in the relief prayed from that contained in the original petition, a subsequent order entered by a judge other than the trial judge, overruling a motion to strike the amended petition and granting the prayer of the petition was entered without jurisdiction.
    2. Judges, § 8*—when order in. vacation entered without jurisdiction. Where after the hearing upon an appeal to the Circuit Court from a petition filed in the County Court to set aside an executor’s final report and requiring the trustee appointed in the will to make a report showing how the trust funds were invested and for general relief, and after the matter had been taken under advisement, an amended petition was filed containing radical changes in the relief prayed from, th'at contained in the original petition, a subsequent order was entered by a judge other than the trial judge, overruling a motion to strike the amended petition and granting the prayer of the petition such order was entered without jurisdiction, and a subsequent order entered during vacation by the trial judge was also without jurisdiction.
    3. Courts—what is extent of jurisdiction of Circuit Court on appeal from County Court. The Circuit Court on appeal from the County Court has no greater jurisdiction than the County Court had, and unless the County Court had jurisdiction to grant the relief prayed in the petition in question as amended after the appeal, the Circuit Court had no jurisdiction so to do on an appeal.
    4. Judges, § 8

      —when decree in vacation not validated by prior . decree during term. A decree entered during a term by a judge other than the trial judge at the request of the latter, and which had no binding effect, did not give validity to a subsequent decree entered by the trial judge in vacation without consent of the parties.
    Error to the Circuit Court of Richland county; the Hon. Charles H. Mdxeb, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed.
    Opinion filed November 7, 1919.
    Rehearing denied December 13, 1919.
    John Lynch, for plaintiff in error.
    T. C. Reed and Gee & Gee, for defendant in error.

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

   Mr. Justice Boggs

delivered the opinion of the court.

A writ of error was sued out of this court to reverse a judgment for $2,915.26, with interest and costs, rendered by the Circuit Court of Richland county, in favor of defendant in error and against plaintiff in error.

One John H. Johns, of Richland county, Illinois, died testate on November 30, 1907. His will was admitted to probate January 6, 1908. Plaintiff in error was nominated in said will as executor to serve without bond and was appointed as such by the County Court of said county. By the third clause of the will, testator created a trust fund of $10,000 in favor of certain parties with various contingencies, and appointed plaintiff in error executor of said will and also trustee of said trust fund of $10,000 and provided among other things that plaintiff in error as such executor shall pay to himself as such trustee said trust fund and that he ‘ ‘ shall keep the whole of said amount, as near as possible, with safety in his judgment, invested in interest bearing notes, mortgages and bonds, or in the stock of corporations or joint stock companies. ’ ’

Defendant in error was made residuary legatee under said will.

Plaintiff in error as executor proceeded to administer the estate, paid claims and legacies, and in February, A. D. 1909, after the expiration of the time for filing claims against the estate, said executor filed a petition in the County Court setting up the provisions of the will in relation to the trust and residuary estate, alleging that the will made no provision for the payment of the expenses of operating the trust and prayed that the court enter an order for the executor to pay to the trustee the sum of $2,000 to be by him invested and the proceeds thereof used to defray expenses of operating the trust, and that at the expiration thereof to be then paid to the residuary legatee.

A hearing was had, the prayer of the petition was granted, and an order entered allowing the executor to pay to the trustee the sum of $2,000 for the purpose aforesaid. On May 22,1909, the executor filed his final report showing payment of all claims filed and the payment of $500 to defendant in error, being the balance of special legacy to her; also showing payment to her of $39.95 as balance due her as residuary legatee. Upon filing this report the court on motion entered an order directing the character of the notice to be given for hearing on the report. The notice was given and proof thereof made accordingly on June 7, 1909. Whereupon the report was approved and the executor discharged.

Defendant in error filed a petition in the County Court on December 20, 1909, setting up the provisions of the will relative to the legacies and trust, reciting that the thirty-four shares of bank stock of the Olney Bank was worth $4,250, whereas the executor had turned the stock over to the trustee at a valuation of $3,400; that $2,000 funds of the residuary^ estate had been by said executor turned over to said trustee to be by him invested and the proceeds used to defray the expenses of said trust; that through fraud or mistake items which were shown to be assets in the inventory are not accounted for, and that the sum of $1,138.63 allowed the executor as compensation wa.s unreasonable, unjust and wholly disproportionate to the services rendered. The petition prayed that the report be set aside and that the trustee be required to make a report showing how the trust funds were invested, and for general relief.

The cause was continued from time to time until the September term, 1913, when upon hearing the petition was dismissed for want of jurisdiction by the court. Defendant in error prayed, and was allowed, an appeal to the Circuit Court. Said cause was docketed in the Circuit Court at the November term, 1913, and was .continued from term to term until the November term, 1916, at which said time said cause came on to be heard before Hon. Charles H. Miller, one of the judges in said circuit. The evidence was heard and the cause was taken under advisement by said judge. The docket shows the case continued by agreement or by operation of law from then on until the April term, 1918. Prior, however, to the April term, in March, 1917, and after the hearing of the evidence by the Hon. Charles H. Miller, an amended petition was filed in said Circuit Court by defendant in error, making radical changes in the relief prayed for from that contained in the original petition filed in the County Court. On the first day of the April term, 1918, the Hon. J. C. Eagle-ton then presiding, entered orders as follows: “Now at this time, it being the 15th day of April A. D. 1918, and the first judicial day of the present term of this Court, motion to strike amended petition from files overruled by the Court. Respondent excepts, prayer of amended petition granted as prayed. John H. Senseman, trustee, ordered to pay petitioner the sum of $2,000, with legal interest from the 20th day of February, 1909. Respondent excepts. Now at this time, it being the 16th day of April A. D. 1918, and the second judicial day of the present term of this Court, exception and motion filed by respondent, John H. Senseman, to the order of C. H. Miller, trial judge, and proof of notice to attorney for petitioner filed. Cause continued. ’ ’

No formal order was filed in said cause. The April term adjourned. The July term, 1918, came on and adjourned and thereafter on the 9th day of August, 1918, a purported decree signed by the Hon. Charles H. Miller was filed in the clerk’s office of said court and was entered on the court records, in and by which said decree, plaintiff in error in his individual capacity was ordered to pay to defendant in error the sum of $2,915.26, together with costs of suit. To reverse said decree this writ of error is prosecuted.

' Qne of the main grounds relied upon by plaintiff in error for a reversal of this cause is that the record shows that the Hon. J. C. Eagleton, who made the minutes at the April term, 1918, in connection with the purported judgment or decree rendered against plaintiff in error, had never heard said cause and had no jurisdiction to hear the same for the reason that said cause had been heard by the Hon. Charles II. Miller in November, 1916, and had been taken by him under advisement, and further that the order or decree signed bv the Hon. Charles H. Miller and which was filed on August 9, 1918, in vacation after the July term, 1918, was without authority of law and not binding on the parties thereto. We are of the opinion that this assignment of error is well taken.

In Bruce v. Doolittle, 81 Ill. 103, the Supreme Court at page 108 says: “Upon a careful examination of the evidence, we are satisfied that the facts found by the court were fully authorized by the testimony, and that the order entered was proper. But after the court had heard the evidence, the court adjourned for the term, and the judgment of the court was entered in vacation. Appellant was not present nor did he consent. The rendition of the judgment in vacation was error, for which the judgment must be reversed and the cause remanded.”

In Chicago, B. & Q. R. Co. v. Wingler, 165 Ill. 634, the court at page 636 says: “There is no escape from the conclusion that the court was without power to enter the judgment nunc pro time as of the previous term. The rule forbidding such a practice is too well settled to admit of question, and must have the approval of all persons interested in judicial records.”

In Cameron v. Clinton, 259 Ill. 599, the Supreme Court at page 601 says: ‘ ‘ This decree bears the signature of the judge who presided at the hearing, and the notation, ‘Filed August 2, 1911, as of May 3, 1911.’ From this record it appears, that no decree was entered of record during the April term, but that the draft of the decree was presented for record to the clerk of the court on the 2d day of August, which was in vacation, and was by him filed on that day as of the day the hearing was concluded at the April term and entered of record. No memorial paper or minute appears showing what the decree to be entered ‘as per draft to be filed’ was or in whose favor it was. The cause was not taken under advisement and there was no stipulation for the entry of a decree in vacation.” The court further says in said opinion at page 602, discussing the case of Hughs v. Washington, 65 Ill. 245: “The court said, in substance, that a decree is inchoate until it is approved by the chancellor and filed for record or recorded; that the oral announcement by the chancellor of his decision and the grounds upon which it is based, or reducing them to writing, is no more than minutes taken, and the whole matter is completely under the control of the chancellor until the decree has been filed or recorded, and that is the time the case is decided.” Further in said opinion the court says on page 603: “Defendants in error make no denial that the decree was, in fact, not entered of record until August 2, but insist that as it is entitled as of the April term it would be, in effect, impeaching the record to say it was not entered at that term. With this we cannot agree. As we view it, the record shows the decree was not entered until August 2, which was long after the adjournment of the April term, at which the cause was heard. The decree contains no order for a certificate of evidence or for an appeal, and we cannot give our approval to a practice that would be so prejudicial to a defeated litigant.”

In this case, notwithstanding the fact that plaintiff in error had filed written exceptions to the minutes entered touching this case on April 15, 1918, no certificate of evidence and no order for appeal was given in the decree filed on August 9, 1918. We hold in this case that the orders entered by the Hon. J. C. Eagleton at the April term, 1918, had no binding effect on the parties hereto and that the decree filed in vacation signed by the Hon. Charles H. Miller was in fact a decree rendered in vacation without the consent of the parties hereto and was for that reason of no binding force or effect as against them.

As we understand, the orders entered by the Hon. J. C. Eagleton were made at the request of the Hon. Charles H. Miller, but however they were entered they would not be sufficient to give force and validity to the decree filed on August 9, 1918.

Counsel on both sides have argued to considerable extent the question as to whether or not the County Court had jurisdiction on the petition filed to grant the relief prayed in that petition and as to whether the Circuit Court could grant such relief on appeal. It goes without saying that the Circuit Court on an appeal from the County Court has no greater jurisdiction than the County Court had, and unless the County Court had jurisdiction to grant the relief prayed in the amended petition, the Circuit Court would not have jurisdiction so to do on an appeal. Beesman v. City of Peoria, 16 Ill. 484; Shirk v. Trainer, 20 Ill. 301; Dodge v. People, 113 Ill. 491; Western U. Tel. Co. v. Dubois, 128 Ill. 248.

The original petition alleges the wrongful payment of $2,000 from the residuary fund to plaintiff in error to be loaned by him and the income therefrom to be used to pay his fees as trustee, taxes and other expenses incident to said trust, and also alleges that plaintiff in error as such executor had failed to inventory certain assets as required by law, and that some of said assets had not been accounted for and prays among other things that plaintiff in error in his capacity as trustee, “be ordered to make a report of his acts and show how he has the funds invested, and how secured, and that he be required to give bond for the faithful performance of the trust.” While the amended petition prays, “that the order of said County Court so made on the 20th day of February, 1909, and at the July term, 1909, approving same, be set aside and vacated and held for naught, for the reasons herein set out, and that the said John H. Senseman be ordered by this court to pay to the petitioner herein the said $2,000 with legal interest from the 20th day of February, 1909.”

We have considered both of these petitions and are of the opinion that the County Court had no jurisdiction to enter the same and that therefore the Circuit Court on appeal had no jurisdiction so to do. That whatever relief, if any, defendant in error may be entitled to, the same would be in a court of equity, where matters of trust or accounting are matters peculiar to the jurisdiction of a court of equity, as well as matters of fraud, accident or mistake, inferentially charged in one or both of said petitions.

For the reasons above set forth the judgment of the trial court will be reversed.

Reversed.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    John Schmieg, Appellee, v. John M. Burkhardt, Sheriff of Monroe County, Illinois, Appellant.
    1. Replevin, § 10*—when action lies for property held, by sheriff under execution. Replevin to recover property from the sheriff who held it under execution was proper where the judgment, and consequently the execution, was void.
    2. Replevin, § 10*—when statutes construed so as to permit action for property held by sheriff under execution. Hurd’s Rev. St. ch. 119, sec. 2 (J. & A. If 9187), providing that replevin shall not lie by the defendants in any execution or attachment to recover property seized by virtue thereof unless exempt, etc., and section 4 (J. & A. jf 9189), providing for the filing of an affidavit stating that the property sought to be replevied is not seized under execution, etc., nor held by virtue of any writ of replevin, were so construed to permit the maintaining of replevin to recover property from the sheriff who held it under execution, where the judgment, and consequently the execution, was void.
    3. Judgment, § 43*—how statute authorising clerk to enter judgment by confession is to be construed. The clerk of the court in entering a judgment by confession is not a judicial officer, and his duties are merely ministerial, and to render a judgment so entered valid, the statute authorizing the clerk to enter it must be strictly construed.
    4. Judgment, § 40

      —when judgment by confession not regarded as entered in vacation. Where the record disclosed that the court was in session on the first day of a new term, a judgment by confession entered by the clerk on that day was not considered as having been entered in vacation, although it was claimed, apparently outside the record, that the judgment was entered before the morning hour of convening.
    Appeal from the Circuit Court of Monroe county; the Hon. J. P. Gillham, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.
    J. Fred Gilsteb, for appellant.
    Joseph W. Sickert and A. O. Bollinger, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

The September term of the Circuit Court of Monroe county convened at 9:30 on the 29th day of September, 1914, and continued in session from day to day until October 1, 1914. On said 29th day of September, 1914, a purported judgment by confession was entered by the clerk of sáid court against appellee for $558.51 in favor of Herschback Brothers. An execution was issued on said purported judgment to which said execution appellee filed his schedule. An appraisement of the scheduled property was then made and appellee made his selection. Appellant, sheriff, then levied upon 60 acres of growing wheat, excepting therefrom 17 acres selected by appellee as his personal exemption. Appellee then filed notice with appellant that he desired a trial of the rights of property in all of the 60 acres of wheat as provided by chapter 140a of the statutes of Illinois (J. & A. 6814 et seq.)„ A trial had in the County Court resulted in a finding “that the property in question is lawfully the property of appellee,” and the court ordered the sheriff to release said levy and restore the property to appellee. Notwithstanding the order of the court the sheriff advertised the wheat, except the 17 acres, for sale under execution and continued the sale from time to time until said wheat was ready to cut, when this replevin suit was started.

The declaration is in the ordinary form and charges the taking of the property by the sheriff. Appellant filed a motion to quash the writ of replevin, on the ground that* the action was brought by the defendant in the execution against the sheriff who held it and was therefore contrary to section 2, ch. 119, of Hurd’s Bev. St. (J. & A. IT 9187). Said motion was denied and thereupon appellant filed four pleas to the declaration, the first two pleas denying the wrongful taking and the last two justifying. The fourth plea was subsequently withdrawn. A trial had before the court resulted in a finding and judgment for appellee. To reverse said judgment this appeal is prosecuted.

One of the questions involved in this case, and really the principal one, is as to whether an action of replevin will lie to recover property from a sheriff who holds the same under execution, even though the execution may be void. The affidavit filed in the replevin suit set up among other things that the property sought to be replevined was not held under any execution. It is the contention of appellee that notwithstanding the averment of the affidavit to the effect that the property in question was not held under execution that the record discloses that the judgment on which the execution was based is void and that the execution is void, and therefore in law is no execution at all. While the sheriff contends that the question whether or not the judgment and execution are valid or void cannot be inquired into in a proceeding of this character. In other words, it is contended section 2, ch. 119, of Hurd’s Eev. St. (J. & A. ft 9187), to the effect that no action of replevin shall lie at the suit of the defendant in any execution or attachment, to recover goods or chattels seized by virtue thereof, unless such goods and chattels are exempt, by law, from such execution or attachment; nor shall an action of replevin lie for such goods and chattels at the suit of any other person, unless he shall, at the time, have a right to reduce into his possession the goods taken. And section 4 of said Act (J. & A. jf 9189), to the effect that the person bringing such action shall, before the writ issues, file with the clerk of the court in which the action is brought, or with the justice of the peace before whom the suit is commenced, an affidavit stating, among other things, that the property sought to be replevined is not "seized under any execution or attachment against the goods and chattels of such plaintiff liable to execution or attachment, nor held by virtue of any writ of replevin against such plaintiff, ’ ’ should be construed as including- any execution without reference to its validity.

An examination of the authorities convinces us that the construction placed upon said statute by appellee is the correct construction in a proceeding of this character. Gardner v. Bunn, 132 Ill. 403; Hughes v. Melville, 60 Ill. App. 419; Desnoyers Shoe Co. v. First Nat. Bank of Litchfield, 89 Ill. App. 579. The next question presented by the record is as to whether the purported judgment by confession entered by the clerk and the execution issued thereon, being’ the execution under which the sheriff claims possession of the property, are void. It has been frequently held by the Supreme and Appellate Courts of this State that the clerk of the court in entering a judgment by confession is not a judicial officer and that his duties are merely ministerial, and that in order that the judgment so entered by the clerk shall be valid the provisions of the statute authorizing the clerk to so enter such judgment must be strictly construed. One of the provisions of this statute is that the clerk can only enter a judgment by confession in vacation, and that if a term of court is in session his power to enter a judgment is at an end. Gardner v. Bunn, supra; Anderson v. Field, 6 Ill. App. 307; Campbell v. McCahan, 41 Ill. 45; Little v. Dyer, 138 Ill. 272; Hughes v. Melville, 60 Ill. App. 419.

In Gardner v. Bunn, supra, at page 408, the Supreme Court in discussing this question says: “The confession of judgment in vacation is a statutory proceeding in derogation of the common law, and a judgment of that character will not be valid unless there is a strict compliance with the law under which it may be authorized. * * * Was there such compliance here? If the attorney who confessed the judgment was not duly authorized, he had no power to act, and his acts would be a nullity. A power of attorney was filed with the clerk, but no evidence was filed that Turner & Son had ever executed that instrument. In the absence of such evidence there was no authority to enter the judgment. No jurisdiction was acquired over the persons of Turner & Son—an indispensable prerequisite to the rendition of a judgment.” Further quoting from page 409 of said opinion it is said: “From the cases cited, the only fair conclusion to be drawn would seem to be that a clerk, in vacation, has no power to enter a judgment by confession without proof of the execution of the power of attorney. A judgment cannot be entered unless jurisdiction is first acquired of the person of the defendant.”

In Anderson v. Field, supra, 314, the court says: “It appearing, then, that the judgment in question was not entered in open court, we know of no principle upon which it can be sustained. Judgments by confession can be entered before the clerk only in vacation, but during term time they must be entered in open court. The cause must be brought before the judge in person and passed upon by him. The clerk cannot act for him. The entry of the judgment is a judicial act, which the judge of the court alone can perform. * * * In this case, the record which purports to be a judgment of the court is shown to be merely the unauthorized act of the clerk, and has no force or validity as a judgment, and is merely void. ’ ’

In Hughes v. Melville, supra, at page 422, the court says: “If the action of the justice of the peace set forth in this record was such that the judgment by In'm attempted to be entered as void, then appellant need pay no attention thereto. A void judgment is a nullity; confers neither right nor authority upon any one. No officer having knowledge that a judgment is void ought to make a levy thereunder, and if under such circumstances he does, he will be liable. Murphy on Sheriffs, secs. 104 and 105.”

In White v. Jones, 38 Ill. 164, the court in discussing the question of the validity of judgment says: “The judgment was void, and all subsequent proceedings under it were invalid and conferred no rights upon the plaintiff in that judgment. The execution, consequently, created no lien upon the goods.”

Appellant insists that replevin is not the proper way to raise the question of the validity of the judgment and execution in this case. We think, however, inasmuch as the judgment and execution are void, that appellee as the owner of the property sought to be held under a void execution has the right in an action of replevin to regain possession thereof, and we think that this holding is supported by the authorities.

In Colwell v. Swick, 190 Ill. App. 369, the Appellate Court of the Third District had a case similar to this and held that an action in replevin would lie, and in discussing this question at page 372 the court says: “The question of whether property attempted to be levied on under a void execution, or an execution issued on a void judgment, can be replevied by the owner of the property, who is the judgment debtor in the void judgment and execution, has.never, that we can find, been squarely decided in this State. The question decided in the Heagle case, supra [64 Ill. 423], however, has some analogy to this case. At common law it was contempt of the court issuing an execution, for the judgment debtor to replevy property taken under it. The general rule is well settled that neither the defendant in execution nor any one claiming under him can maintain replevin against an officer levying an execution, for the reason the property is in the custody of the law. Freeman on Executions, sec. 268; 34 Cyc. 1368. The rule is also announced by the courts of some States that where the judgment on which an execution issued is void, the defendant may maintain replevin for goods seized thereunder against Tie officer making the levy; and this is so, although the execution is regular on its face. 34 Cyc. 1369; Adams v. Hubbard, 30 Mich. 103; Balm v. Nunn, 63 Iowa 641; Karr v. Stahl, 75 Kan. 387; Iron Cliffs Co. v. Lahais, 52 Mich. 394; Breckenridge v. Jolmson, 57 Miss. 371; Muller v. Plue, 45 Neb. 701; George v. Chambers, 11 M. & W. 149 (Eng.).

11 ‘A void judgment is in legal effect no judgment. From it no rights can be obtained, being worthless in itself all proceedings founded on it are equally worthless. It neither binds nor bars any one. All acts performed under it, ard all claims flowing out of it are void.’ Freeman on Executions, sec. 20; Campbell v. McCahan, 41 Ill. 45.

“We are of the opinion that a writ in the form of an execution, which is void for the reason the supposed judgment on which it is issued is void, is not an execution, and that the party named therein may replevy property attempted to be taken under such void writ.”

It is also insisted by appellant that appellee, by reason of the fact he filed a schedule to the execution issued on said judgment and also had had a trial of the rights of property levied on in the County Court, that he is estopped from denying the validity of the judgment. As we understand, so far as the trial of the rights of property in the County Court were concerned he would be estopped in that suit from raising the question of the validity of the judgment and execution. However, that suit was determined in his favor.

Appellant, sheriff, is seeking to sell the property of appellee under such void execution, and we do not believe that appellee is estopped from raising the question of the validity of the execution and hold that he may do so and in this proceeding.

It is also insisted by appellant that the court should presume that the clerk entered the judgment in question on the 29th day of September, 1914, before 9:30 o’clock on the morning of that day, being the time at which the term of court convened. There is nothing in the record to show that such was the case, and we are not inclined to hold that where the record discloses that the court was in session on a certain day that any vacation of the court existed on that day, giving the right to the clerk to enter a judgment.

We are of the opinion that the judgment entered by the lower court was in compliance with the law and the facts in this case and the same is therefore affirmed.

Judgment affirmed.


text:
    Clarence C. Holman and Beulah Holman, Defendants in Error, v. J. M. Brown et al., Plaintiffs in Error. David B. Crews and Frankie Crews, Defendants in Error.
    1. Appeal and error, § 11*—right to writ of error in adoption proceedings. A petition for a writ of error did not lie to review a decree awarding the child in question to the petitioners for its adoption.
    2. Appeal and error, § 11*—when writ of error does not lie in statutory proceedings. A petition for a writ of error will not lie to review a proceeding of a court of record where such proceeding is not one in law or chancery, or where the proceeding is purely statutory and no writ of error is provided for, except in those cases where the property rights or the liberty of the individual are involved; hence the petition for such a writ did not lie to review an order awarding the child in question to the petitioner for its adoption.
    3. Adoption, § 6

      —jurisdiction of County Court. The jurisdiction of the County Court to entertain an adoption proceeding is a special statutory one unknown to the common law, and in such proceeding that court exercises no common-law jurisdiction.
    Error to the County Court of Effingham county; the Hon. Barney

      Overbeck, Judge, presiding. Heard in this court at the March term, 1919.
    Writ dismissed.
    Opinion filed November 7, 1919.
    Jacob Zimmerman, Harry S. Parker, J. W. & E. C. Craig and Fred H. Kelly, for plaintiffs in error.
    C. P. Denton and Byron Piper, for defendants in error.

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

   Mr. Justice Boggs

delivered the opinion of the court.

A writ of error was sued out of this court to review a decree entered by the County Court of Effingham county, awarding Carroll Maxine Brown, an infant, to defendants in error. The record discloses that the said Carroll Maxine Brown was born June 17, 1917, being the infant daughter and only child of Raleigh Ray Brown, who died on December 10, 1918, and Vera C. Brown, his wife, who died on December 14, 1918. J. M. Brown and Mary L. Brown were the paternal grandparents of said Carroll Maxine Brown and the said J. M. Brown was also the legal guardian of said infant, by appointment of said County Court. Said J. M. Brown and Mary L. Brown were engaged in the hotel business at Carbondale and also at Effingham. David B. Crews and Frankie Crews were the maternal grandparents of said infant. Beulah Holman, one of the defendants in error, is a sister of the said Vera C. Brown, deceased, and Clarence C. Holman is her husband. Said Holmans, who have been married some 4 or 5 years, have no children and reside in Effingham. The said Clarence C. Holman is a physician, about 34 years of age, and his wife is some few years younger. The said Holmans being desirous of adopting said child filed a petition in the County Court of said county on January 16, 1919, setting up the above-mentioned facts and their wish and ability to have the possession, care and custody of said infant and praying that a decree of adoption he awarded by the court as provided by statute. To said petition, J. M. Brown in his individual capacity and as guardian of the said Carroll Maxine Brown, Mary L. Brown, David B. Crews and Frankie Crews were all made parties and were served with process and appeared and answered said petition. The said David B. Crews and Frankie Crews filed their written consent to the adoption of said infant by said petitioners. The said J. M. Brown, individually and as guardian, and Mary L. Brown, answered said petition, admitting the material allegations thereof except the allegation to the effect that it was for the best interest of said child that the court grant the prayer of the petition. This allegation was denied, and it was set forth in the answer that it was for the best interest of said child that the prayer of the petition be denied and that the custody and control of said infant remain with said grandparents.

On the hearing evidence was offered on the part of the petitioners to the effect that petitioners were proper persons to have a decree giving them the said child as their own by adoption as provided by statute. The record discloses that the said Clarence C. Holman has a good practice and a net income of some $200 per month; that he has personal property worth about $5,000, and that he owns real estate in Arkansas worth from $15,000 to $20,000, over and above mortgage indebtedness on the same. The record also discloses that the petitioners were persons of high standing in the community and were in every way worthy and well qualified to take over the care and custody of said child as their own.

Upon the hearing the County Court held that under the statute of this State, in order to give it jurisdiction where there was no father or mother living, the guardian must file in writing his consent to the adoption of said child. The court thereupon entered an order removing J. M. Brown as guardian of the person of said infant, and appointed one Harry J. Rickelman, a member of the Effingham County Bar, as guardian ad litem with a provision that he should file or withhold his consent to said adoption as he saw fit. Said guardian ad litem filed his written consent to said adoption, and the court having found that it was for the best interests of said child that the prayer of the petition be granted entered a decree awarding said child to said petitioners.

Plaintiffs in error prayed an appeal from said decree which was denied, and thereupon sued out the writ of error above mentioned. A motion was made by defendants in error to dismiss this proceeding on the alleged ground that writ of error will hot lie in this character of case, which said motion was taken with the case.

Two principal questions therefore arise on this record: First, as to whether or not a writ of error will lie to review an order of this character; and second, if a writ of error will lie, as to whether or not the County Court has jurisdiction to hear and determine the matters involved in the petition. In our view of the case it will only be necessary for us to pass on the first proposition.

It is conceded by counsel for both sides that no writ of error or appeal is provided for in this character of proceeding so far as the statute is concerned.

Plaintiffs in error take the position that a writ of error will lie to review the proceeding of a court of record in all cases whether common law or purely statutory where no appeal is provided for, and where a writ of certiorari will not lie and where a writ of error is not specifically. denied by the statute which gives effect to the proceeding. On the other hand, counsel for defendants in error take the position that a writ of error will not lie to review a proceeding of a court of record where the proceeding is not one at law or in chancery according to the course of the common law, or where the proceeding is purely statutory, and no writ of error is provided for, except in those cases where property rights or the liberty of the individual are involved. We have examined the elaborate briefs which have been filed by counsel representing both sides of this argument and have examined the authorities submitted and are of the opinion that the position of defendants in error is the correct one. Counsel for plaintiffs in error do not contend that there are any property rights involved in this proceeding or that the liberty of any of the parties hereto is involved.

The authorities in this State uniformly hold that the jurisdiction of the County Court to entertain an adoption proceeding is a special statutory one unknown to the common law, and that in such proceeding the court exercises no common-law jurisdiction. Kennedy v. Borah, 226 Ill. 243; Watts v. Dull, 184 Ill. 86; Foley v. Foley, 61 Ill. App. 577.

In Loomis v. Hodson, 224 Ill. 147, the Supreme Court in discussing the question of final jurisdiction of the County Court in a proceeding for the removal of the county seat at page 154 says: “The legislature has committed to the County Court the decision of questions arising preliminary to the question for removal of a county seat and made its decision final. We do not think this is contrary to any provision of the constitution or to the decisions of this court. The question at issue does not involve ‘property rights or personal liberty, ’ and we have repeatedly held that where the legislature had committed the final decision of questions of a somewhat similar nature to the one here involved to public officials or trial courts, this court did not have the right to review such decision. People v. Rose, 211 Ill. 259; Moore v. Mayfield, 47 Ill. 167; City of Jacksonville v. Hamill, 178 Ill. 235; Birket v. City of Peoria, 185 Ill. 369; People v. Cohen, 219 Ill. 200.”

In Myers v. Newcomb Spec. Drain. Dist., 245 Ill. 140, the Supreme Court at page 146 in discussing this question says: “Section 91 only provides for an appeal or writ of error ‘in any suit or proceeding at law or in chancery’ and as the term ‘suit or proceeding at law or in chancery’ only includes suits instituted and carried on in substantial conformity with the forms and modes prescribed by the .common law or by the rules of chancery (Grier v. Cable [159 Ill. 29], supra; Brueggemann v. Young, 208 Ill. 181), said section 91 confers no right of appeal to or writ of error from the Appellate or Supreme Court in any case which is instituted and carried on in conformity with forms and modes not according to or recognized by the common law or rules of chancery, but solely in accordance with statutory provisions, and does not, by implication or otherwise, repeal section 122 of the County Court Act, in so far as the latter section provides for an appeal to the Circuit Court in such cases.”

Myers v. Newcomb Spec. Drain. Dist., supra, is cited and approved in People v. Piccollo, 275 Ill. 453.

In Sweeney v. Chicago Tel. Co., 212 Ill. 475, the court at page 476 says: “There being no statute which permits a party to a condemnation proceeding to have the record reviewed by a writ of error, if it can be prosecuted at all it must be because the right to a writ exists apart from any statute authorizing it. A writ of error is a writ of right in all cases which are prosecuted according to the course of the common law; but it is not a writ of right in any special statutory proceeding. The condemnation of private property for public use under the Eminent Domain Act is a special, statutory and summary proceeding. It may be prosecuted in vacation before the judge, or in term time, in accordance with the provisions of the act, which amount to a code of practice for that class of eases. The proceeding is regulated entirely by the statute, and it is not governed, either as to pleading or practice, by the rules of the common law. The proceeding under the statute is summary, for the purpose of having the compensation ascertained and having the property condemned appropriated to the public use without delay. Being of that nature, there is no right to a writ of error unless expressly given by statute.”

We have examined the eases cited by counsel for plaintiffs in error and find in each of such cases that where the court held that a writ of error would lie to review the judgment or decree of a court of record in a proceeding that was purely statutory and where no writ of error was provided for in the statute, that in every such case .property rights or personal liberty was involved. In Bell v. Mattoon Waterworks & Reservoir Co., 235 Ill. 218, cited by plaintiffs in error property rights were involved. In Town of Jamaica v. Town of Vance, 96 Ill. App. 598, property rights were involved. The same obtained with reference to McCallum v. Chicago Title & Trust Co., 203 Ill. 144. What the court said in Hall v. Thode, 75 Ill. 174, and in Hart v. West Chicago Park Com’rs, 186 Ill. 469, cited by counsel for plaintiffs in error, was merely obiter dictum, in both of these eases an appeal was specifically given by statute.

We are therefore of the opinion from an examination of all of these cases that the motion to dismiss said writ of error should be allowed and said writ dismissed, and it is so ordered.

Writ dismissed.


text:
    Leo Cyrulik, by Zack Cyrulik, Appellee, v. Ritchey Coal Company, Appellant.
    1. Workmen’s Compensation Act, § 2*—what evidence sufficient to show notice of mine owner’s election not to he hound hy act. In an action against a mine owner for injuries sustained by an employee, where it was claimed that proof had not been made that defendant had elected not to be bound by the Workmen’s Compensation Act of 1913, proof that notice of such election specifically referring to the act of 1913 was properly filed with the Industrial Board and testimony by some witnesses that prior to the date of the injury they saw notices that defendant would not be bound by the Compensation Act, and by others that they saw such a notice after the injury, warranted the jury in concluding that the notice seen by the witnesses had reference to this act.
    2. Master and servant, § 565*—when variance does not exist as to election of employer not to he hound hy Workmen’s Compensation Act. Variance between the allegations of a declaration with reference to defendant’s election not to be bound by the Workmen’s Compensation Act and the proof in regard thereto, because the title to the act referred to in the declaration was the act of 1911, while the notice testified to related to the act of 1913, was not established, where the allegation was that defendant had elected not to be bound by and pay compensation according to the Workmen’s Compensation Act passed in 1913 and in force July 1, 1913, as the remainder of the title could be rejected as surplusage.
    3. Pleading, § 395*—extent to which plaintiff must prove allegation. A plaintiff is required to prove only enough of an allegation to make out his cause of action.
    4. Appeal and error, § 1474*—when statement of conclusion hy witness is harmless. In an action by a miner for injuries sustained by the falling of a piece of white top from the roof of the mine in question, the action of the court in allowing a witness to state as a conclusion that the working place of plaintiff would be dangerous on account of the white top in the roof was not serious error, where such witness thereafter stated specifically why he would consider such roof dangerous.
    5. Instructions, § 159

      —when construed as series. It is not necessary that each instruction shall contain the statement that the jury must find from the preponderance of the evidence, but it is sufficient if that is clearly set forth in the series, so that the jury could not be misled in reference thereto.

      6. Mines and minerals, § 191*—when instruction on wilful violation of act not erroneous. An instruction relating to a wilful violation of the Mine and Miners’ Act or wilful failure to comply with its provisions, stating that “the clause ‘wilful violation of this act or wilful failure to comply with any of its provisions’ ’means, in the law, a knowing or conscious violation of the act or failure to comply with any of its provisions. The word ‘wilful,’ as used in the mining laws, means a knowing or conscious violation or omission to do the things required by the mining law,” was not erroneous, although it would have been better had the cautionary words “knowing or conscious” been again inserted immediately prior to the words “failure to comply with any of its provisions.”
    7. Mines and minerals, § 191*—when instruction denying defense of contributory negligence not improper. As the omission of a miner to perform his statutory duty to examine the roof of his working place could amount at most, only to contributory negligence on his part, which is no defense to a suit brought under the mining law, an instruction stating in effect that contributory negligence was no defense was not improper.
    8. Instructions, § 81*—when instruction singling out portion of evidence not erroneous. The singling out of a portion of the evidence in a personal injury case by a miner against his employer, by referring to “white top” in the roof of the working room, would have been error were it not for the fact that all the witnesses who testified with reference to such room said specifically, or conceded, that there was white top in the roof.
    9. Mines and minerals, § 179*—when evidence that injured miner was in proper working place sufficient. In an action by a miner under legal age, the claim that plaintiff was not in his proper working place at the time of the injury was fully met by evidence that he had been allowed to work with his father with the express knowledge of the defendant’s managing officers, and that this custom of permitting sons to work with their fathers prevailed in the mine in question with the knowledge and consent of the company.
    10. Mines and minerals, § 176

      —sufficiency of evidence relative to examination by mine owner. The duty of mine owners to make an examination is enjoined by law, which contemplates a proper and sufficient examination to discover whether dangerous conditions existed, and if such an examination would have disclosed a dangerous condition, a jury is justified in concluding either that the examination was not made or that it disclosed the actual condition, notwithstanding the testimony of a mine examiner to the contrary.

      11. Mines and minerals, § 176

      —sufficiency of evidence relating to mine examiner’s failure to perform legal duty. If when a mine examiner examined the room in question he discovered a dangerous condition, it was his duty to have marked it dangerous, or if by a careful examination he could have discovered such dangerous condition and did not make the examination, in either event the jury would have been warranted in finding a wilful failure to perform the duty imposed by law.
    Appeal from the Circuit Court of Perry county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.
    Nelson B. Layman, for appellant.
    T. M. Webb, for appellee.

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

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

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

   Mr. Justice Boggs

delivered the opinion of the court. An action on the case was instituted in the Circuit Court of Perry county by appellee, a minor, suing by his father as next friend, against appellant, Coal Company, to recover damages under the Mine and Miners ’ Act for alleged injuries received on December 2, 1916, while working in appellant’s mine.

The declaration consists of two counts: The first count alleges among other things that the mine examiner wilfully failed and omitted to examine the worldng place of appellee within 8 hours prior to the entrance of appellee for work in said mine, and that at said time a dangerous condition existed in the roof of the room where appellee was working and that by reason of the wilful failure of the mine examiner to examine said room, the roof in said room or a part of it fell upon appellee, severely and permanently injuring him, etc.

The second count among other things charges that the mine examiner examined the working place of appellee and that at the time of said examination there was a dangerous condition in the room but that the mine examiner wilfully failed to mark it dangerous and that by reason of such failure the roof of said room where appellee was working fell and permanently injured him, alleging damages, etc.

A demurrer was filed to said declaration and, as finally amended, each count of said declaration contained the following allegation with reference to the Workmen’s Compensation Act: “The defendant company had elected not to provide and pay compensation to injured employees, according to the provisions of an act entitled ‘an act to promote the general welfare of the People of the State of Illinois, by providing compensation for accidental injuries or death, suffered in the course of employment. Approved June 28th, 1918, in force July 1st, 1913. Also known as The Workmen’s Compensation Act.’ ” To which declaration a plea of the general issue was filed by appellant; a trial was had resulting in a verdict of not guilty. A new trial was granted and on a retrial of said cause the jury found appellant guilty and assessed appellee’s damages at $3,000. A new trial was denied and judgment was rendered on said verdict. To reverse said judgment this appeal is prosecuted.

The record discloses that appellee commenced work for appellant in its mine near the City of Pickneyville, Illinois, on or about October, 1914, as apprentice to his father and that at the end of 2 years received a certificate of competency as a miner; that after receiving his certificate of competency he was given check No. 130, his father was given check No. 19 and their working places were assigned to them according to these numbers. After appellee received his certificate of competency he continued to work with his father and- they both worked under the same check numbers until on or about the 2nd day of December, 1916, at which time appellee suffered the injury for which this suit is brought. The record further discloses that at the time of the injury there were a number of rooms extending in a southerly direction off of the main west entry leading westerly off of the main north entry. These rooms were not numbered, but commencing with the first and counting them in order as you went west, the 33rd and 34th were the working places of appellee and his father. Appellee’s check number called for the 34th and his, father’s for the 33rd room and they were so assigned by the pit boss. These rooms were parallel, separated by a pillar of coal, and had been driven between 40 and 50 feet, and were from 16 to 18 feet wide at their respective face. Appellee and his father had worked together for some 4 or 5 months previous to appellee’s injury and such fact was known to the pit boss and mine manager. So far as the record discloses no objection was made to their so working together, and the record discloses that other fathers and sons worked together in the same way in said mine. On the morning of December 2, 1916, appellee and his father after making an examination of their working rooms began loading co«al in a car in room 34. They found the examiner’s visiting mark but found no mark that indicated a dangerous condition—no such marking having been made as the mine examiner testified that he regarded the working place as safe. After loading the car in room 34 they went to room 33 and began loading coal there. The day before they had set props within about 10 feet of the face to hold up the roof and during the firing of shots over night a number of these props had been blown down and the coal from the face cast out and away from the face and piled up 2 or 3 feet high in some places, and extended out and around certain props that remained standing. Appellee and his father examined the roof of the room and observed a pot or slip of white top over their working place and sounded the same and attempted to pull it down but finding that it sounded solid proceeded to load coal into the car and had been working only a few minutes when a large piece of white top, weighing several thousand pounds, fell and caught appellee and caused the injury complained of.

It is first contended by appellant for a reversal of said cause that proof that appellant had elected not to be bound by and pay compensation according to the provisions of the Workmen’s Compensation Act in force July 1, 1913, had not been made. The record discloses that notice of such election had been properly filed with the Industrial Board and a certified copy of the same was admitted in evidence. The proof of the posting of such notice in appellant’s mine was not as satisfactory as it might have been. The vice president of appellant company, and who at one time acted as its superintendent, was placed on the stand by counsel for appellee and testified that in July, 1913, a notice had been posted in said mine; that said company had elected not to pay compensation under the Workmen’s Compensation Act. However, said witness did not undertake to say as to what act this notice applied. Other witnesses testified that they observed a notice to the effect that appellant company would not be bound or would not pay compensation according to the Workmen’s Compensation Act, some of whom testified that they saw this notice before appellee’s injury, and some that they saw the notice after such injury but would not undertake to give the exact language of the notice or as to whether the notice applied to the act of 1911 or the act of 1913. We think, however, in view of all the evidence in the case, the jury were warranted in finding that appellant company had elected not to be bound and pay compensation according to the provisions of the Workmen’s Compensation Act of 1913, as the notice given to the Industrial Board specifically referred to the act of 1913, and we think the jury were warranted in the conclusion that the notice that these different witnesses saw posted in the mine had reference to this act.

It is next insisted by appellant that there was a variance between the allegation with reference to appellant’s election not to be bound by the Workmen’s Compensation Act and the proof in regard thereto. It is contended by appellant that the title of the act referred to in the declaration is the act of 1911, whereas the proof as to the notice given to the Industrial Board was with reference to the act of 1913. The allegation in the declaration is that appellant had elected not to be bound and pay compensation according to the Workmen’s Compensation Act, passed in June, 1913, and in force July 1, 1913. This we regard as sufficient as the remainder of the title can be rejected as surplusage. Barnes v. Northern Trust Co., 169 Ill. 112; Massachusetts Mut. Life Ins. Co. v. Kellogg, 82 Ill. 614; Devine v. Illinois Central R. Co., 156 Ill. App. 369.

It is a well-established rule that plaintiff is required to prove only enough of an allegation that is material to make out his cause of action. New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill. 40-47.

It is next insisted by appellant that the court erred in admitting in evidence plaintiff’s exhibit A, being a certified copy of the notice given to the Industrial Board to the effect that appellant had elected not to be bound and pay compensation under the Workmen’s Compensation Act of 1913, for the reasons that the giving of this exhibit constituted a variance and that it did not support the allegations of the declaration. What we have already said sufficiently disposes of this assignment of error.

It is also insisted by appellant that the court erred in allowing the witness, Ridleberger, to state as a conclusion that the working place of appellee would be dangerous on account of the white top in tlie roof. This objection would be well taken if it were not for the fact that this witness went on and stated specifically why he would consider such roof dangerous. That being so, we do not think that the ruling of the court constituted serious error.

It is next insisted that the court erred in giving appellee’s instruction No. 1, for the reason that said instruction fails to require the jury to find certain matters and things set forth in said count necessary for appellee to prove in order to make out his case, by a preponderance of the evidence, but simply from the evidence. This objection would be good were it not for the fact that other instructions in the series, both those given on the part of appellee and those given on the part of appellant, required that the jury must find the necessary matters and things to be found in order to find a verdict for appellee by a preponderance or greater weight of the evidence. It is not necessary that each instruction shall contain the statement that ¡bhe jury must find from a preponderance of the evidence, but if that is clearly set forth in the series of instructions, so that the jury could not be misled in reference thereto, but were fully advised that the plaintiff must prove the averments of his declaration by a preponderance of the evidence, that is all that is necessary. Belden v., Woodmansee, 81 Ill. 25; Cunningham v. Stein, 109 Ill. 375; Decatur Cereal Mill Co. v. Gogarty, 180 Ill. 197; Coulter v. Illinois Cent. R. Co., 264 Ill. 423; Rock Island & P. Ry. Co. v. Leisy Brewing Co., 174 Ill. 547; Gilmore v. Killion, 206 Ill. App. 462.

It is next insisted that the court erred in giving appellee’s instruction No. 5 for the reason that it fails to properly instruct the jury with reference to a wilful violation of the Mine and Miners’ Act or of a wilful failure to comply with its provisions. Said instruction is as follows: “The clause ‘wilful violation of this act or wilful failure to comply with any of its provisions’ means, in the law, a knowing or conscious violation of the act or failure to comply with any of its provisions. The word ‘wilful,’ as used in the mining laws, means a knowing or conscious violation or omission to do the things required by the mining law. ’ ’ An examination of this instruction satisfied us that the objections made thereto are not well taken, for we are satisfied the jury could not be misled by the construction placed upon the provision of said statute in said instruction, and while it might have been better had the cautionary words “knowing or conscious” been again inserted immediately prior to the words “failure to comply with any of its provisions,” still tailing the instruction as a whole and observing the connection in which the cautionary words are used in the instruction, we are satisfied the jury could not have been misled by the instruction.

It is next insisted that instruction No. 10, given on behalf of appellee, was erroneous for the reason that it assumes the existence of a controverted question of fact. An examination of this instruction satisfies us it is not subject to the criticism made.

It is also insisted the court erred in giving appellee’s instruction No. 13 for the reason it is said this instruction leaves out the proposition as to whether or not the negligence of appellee was the proximate cause of his injury. Instruction 13 in effect tells the jury that contributory negligence on the part of appellee is no defense to said cause of action. We do not think the court erred in giving this instruction. Arkley v. Niblack, 193 Ill. App. 636; Randall v. Crescent Coal Co., 280 Ill. 517; Kemp v. Southern Coal & Mining Co., 197 Ill. App. 17-24.

In Kemp v. Southern Coal & Mining Co., supra, this court in discussing a question of this character says: “Counsel insist that it was Kemp’s duty under the statute to have sounded and examined the roof before he commenced work and that if he did not do so, and -there is no evidence that he did, he should not be permitted to recover. Paragraph A, section 29 of the Act of 1911 (J. & A. jf 7503) provides .a penalty for any wilful neglect, refusal or failure to do the things required to be done by the several sections thereof, and the question might arise in a proper case as to whether Kemp had made himself subject to pay that penalty, but his omission to perform his statutory duty "to examine the roof, if he did omit it, could in a case of this kind amount at most only to contributory negligence on his part which is no defense to a suit brought under the mining law.” Citing Illinois Collieries Co. v. Davis, 137 Ill. App. 15, affirmed in 232 Ill. 284; Riverton Coal Co. v. Shepherd, 111 Ill. App. 294, affirmed in 207 Ill. 395.

It is also contended by appellant that appellee’s given instructions 8, 9 and 10 all single out portions of the evidence and give undue prominence to the same. The specific matter complained of is the fact that these instructions all refer to “white top” in the roof of appellee’s working room. The criticism made would be well taken if it were not for the fact that all the witnesses who testified with reference to the roof of this room either say specifically, or concede, that there was white top in said roof. There being no conflicting evidence in regard thereto, the reference made to white top was not erroneous.

It is further insisted by appellant that the court erred in refusing certain instructions offered by appellant. We have examined these instructions and have also examined the instructions given on behalf of appellant and are of the opinion that so far as the refused instructions state correct principles of law, these principles or propositions were contained in the instructions given on behalf of appellant. The instructions are to be taken as a series, and so taken we do not think the failure of the court to give the refused instructions constituted error.

It is also insisted that the verdict of the jury is against the manifest weight of the evidence. In this connection it will only be necessary for us to refer to the argument to the effect that appellee was not in his working room at the time he was injured and that the injury resulted not from the failure of appellant’s mine examiner to properly examine the mine and to mark the dangerous roof therein, but to the alleged failure of appellee and his father to make a dangerous place safe by props, etc. What we have already said with reference to the contributory negligence of appellee not being a bar to his right of recovery for the wilful failure on the part of appellant to comply with the provisions of the Mine and Miners ’ Act sufficiently disposes of this point. It is true that if the injury could be referred alone to the negligent act of appellee and not to the failure of appellant to observe the provisions of the Mine and Miners’ Act, there would be no right of recovery on the part of appellee, but the question of a wilful failure of appellant to comply with said law was properly submitted to the jury, and their finding in that regard is supported by the evidence.

With reference to the argument that appellee was not in his proper working place at the time he was injured, it is only necessary to say that the record fully supports the contention of appellee that he had been allowed to work with his father with the express knowledge of the managing officers of appellant, and that this custom prevailed in that mine, with the knowledge and consent of the company.

Appellee’s father testified among other things: “The mine manager gave me these rooms and he said, ‘You would like to have two rooms together, so that you can work with the boy,’ and I said, ‘Yes, sir.’ ” The record shows, however, that -not only the mine manager and the pit boss but also the mine examiner all had knowledge that appellee and his father were working together. Under the evidence it was for the jury to say whether appellee was in his proper work-

ing place when injured, and we are not disposed to disturb their finding.

It is also insisted by appellant that there is no proof that the mine examiner did not make a proper examination. In other words, it is insisted by appellant that by reason of the fact that the evidence tended to show that the mine examiner within the time specified by statute examined the room where appellee was injured and testified he found no dangerous place and placed no danger mark, that, therefore, the conclusion should be drawn that the room at that time contained no dangerous condition and that the dangerous condition arose after the time that appellant’s mine examiner examined the same and before the time when appellee and his father began to work. This, with other questions of the same character, were questions for the jury. From the record in this case we think the jury were warranted in finding that this dangerous condition in the roof of the room where appellee was working existed at the time the mine examiner examined the same, and that if he made a careful examination of the same, he must have discovered said dangerous condition, or he would have discovered the same had he made a careful examination thereof. “The duty to make an examination is enjoined by law, which contemplates a proper and sufficient examination to discover whether dangerous conditions exist, and if such an examination would have disclosed a dangerous condition, a jury is justified in concluding either that the examination was not made or that it disclosed the actual condition, notwithstanding the testimony of a mine examiner to the contrary. ’ ’ Eichhorn v. St. Louis & O’Fallon Coal Co., 288 Ill. 357. If when the mine examiner examined said room he discovered this dangerous condition, it was his duty to have marked it dangerous, or if by a careful examination he could have discovered said dangerous condition and did not make such examination, in either event the jury would be warranted in finding a wilful failure to perform such duty.

In Eichhorn v. St. Louis & O’Fallon Coal Co., supra, the Supreme Court at page 354 says: “The question under consideration came before the court in the case of Mertens v. Southern Coal & Mining Co., 235 Ill. 540, in which there was a slip in the roof on the evening of March 19, 1906, making the roof dangerous and liable to fall, and about 11 o’clock the next day a portion of the roof fell and the plaintiff was severely and permanently injured. No mark had been placed in the room indicating the dangerous condition and no minute or report of the same was made by the mine examiner. It was contended that these facts did not show a wilful violation of the statute, but it was held that the jury were justified in finding that there was a dangerous condition at the time of the examination and if the mine examiner had made a proper examination he must have discovered the dangerous condition, and therefore it was a fair inference that he did not examine the room, or if he did examine it and discovered the condition he failed to mark the same, and that in either case the failure to perform the duty was a conscious one. That case was cited and the opinion quoted from in Peebles v. O’Gara Coal Co., 239 Ill. 370, where it was held not necessary for the plaintiff to prove that the defendant had actually discovered the dangerous conditions complained of, and that operators of mines are liable not only when dangerous conditions have been discovered but also where a proper examination required by the statute would have discovered the existence of such conditions. These decisions state a correct rule, since any other would permit a mine examiner to make only a casual or insufficient examination and the operator excuse himself on the ground that some sort of examination was made.”

One of the assignments of error is that the verdict is excessive. However, this assignment of error was abandoned in the argument. The record discloses that appellee received a very serious injury and we flunk the verdict is not at all excessive.

We are of the opinion that the evidence in this case fully supports the finding and verdict of the jury and we are not disposed to disturb the same.

Finding no reversible error in the record the judgment of the trial court will be affirmed.

Judgment affirmed.


author: Mr. Justice Eagleton

text:
    George Scruggs and George P. Hieronimous, trading as Scruggs & Hieronimous, Appellants, v. Ann Wood et al., Appellees.
    1. Sales, § 298*—when seller cannot maintain replevin on nonpayment of check given By purchaser. Replevin did not properly lie to recover an automobile sold to a woman and given by her to another, where before accepting the check given in payment, but which was never paid, plaintiffs made investigation as to such woman’s financial responsibility and stated that they were satisfied with it, and where they made a bill of sale to defendant at the purchaser’s request upon her informing plaintiffs that she desired to give it to defendant, and, where plaintiffs stated in the bill that they had accepted the check in question, in payment.
    2. Appeal and ebbob, § 1748*—when judgment will he affirmed. Where after striking out all the evidence complained of there is sufficient to sustain the judgment, it will be affirmed.
    3. Payment, § 5*—By check. While the rule is that a check is only presumed to be a means of payment, it may be shown that a check has been accepted as absolute payment.
    4. ■ Sales, § 170

      —when seller accepting check is not unpaid seller within Uniform Sales Act. Clause b of section 52, of the Uniform Sales Act [Call. 1916 Stat. 1 10021(55)], providing that a seller of goods is to be deemed an unpaid seller within the act “when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition * * * has

      been broken .by the dishonor of the instrument, the insolvency of the buyer, or otherwise,” had no application where a check was received as payment for an automobile, after the investigation of the purchaser’s financial condition by the seller, and his satisfaction with it.
    Appeal from the Circuit Court of Pulaski county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.
    Rehearing denied December 13, 1919.
    Charles L. Rice, for appellants.
    Wall & Martin and C. 'S. Miller, for appellees.

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

   Mr. Justice Eagleton

delivered the opinion of the court.

The appellants, George Scruggs and George P. Hieronimous, partners as Scruggs & Hieronimous, were engaged in selling automobiles at Mounds, Illinois, during the winter of 1916 and 1917.

Mrs. Ann Wood was an aged lady in very poor health living with the appellees, Mr. E. W. Parks, who was her nephew, and Mrs. E. W. Parks, his wife, near Mounds. Mrs. Wood’s condition was such that she required considerable personal care and Mrs. Parks had been giving her the care she needed for quite a while.

Appellants heard that Mrs. Wood wanted to buy an automobile and made several trips to the Parks’ home to see her about buying from them. On December 28, 1916, they sold an automobile for $575, and a check was given by Mrs. Wood on a bank at Cairo, Illinois, for the purchase price.

Shortly after the check was given appellants, they placed the check in a bank at Mounds for collection and in a few days it was returned unpaid.

Some time in February, 1917, appellees placed the automobile in the garage of appellants for repairs and on February 8, 1917, the writ of replevin in this ease was sued out by the appellants.

Prior to the trial of the case in the Circuit Court, Mrs. Ann Wood died and her death being suggested in the record no further proceedings were had with reference to her.

No pleas were filed by E. W. Parks nor was any default taken against him.

Mrs. E. W. -Parks filed two pleas to the declaration. The first one being a plea of non cepit and the second a plea of property in the defendant. A replication was filed by appellants to the second plea averring property in appellants and issues were joined.

A jury was waived and the cause tried by the court. Before the entry of final judgment certain propositions were offered by the appellants to the court to be held as the law applicable to the issues involved, all of which were so held by the court.

After hearing the evidence the court found the issues in favor of the appellees and entered a judgment against the appellants for the return of the property and for costs to which finding and judgments appellants excepted.

It is argued by appellants that the check of Mrs. Wood was given as a conditional payment for the automobile and the check being dishonored by nonpayment the title to the automobile did not pass and that the appellees are not innocent purchasers for value without notice. On the other hand, it is argued by appellees that the automobile was purchased by Mrs. Wood for Mrs. Parks and the check accepted by appellants as absolute payment for the automobile.

Counsel for appellants urge that this action, is controlled by the Uniform Sales Act and various provisions of that act are cited in support of their position. The portions of that act necessary to be considered are as follows:

“Section 52 (1) The seller of goods is deemed to be an unpaid seller within the meaning of this act—

“ (a) When the whole of the price has not been paid or tendered.

(b) When a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has been broken by reason of the dishonor of the instrument, •the insolvency of the buyer, or otherwise.” Call. 1913-1916 Stat. 10021(55), page 1507.

Clause (b) above quoted applies only in case a bill of exchange or other negotiable instrument has been accepted as conditional payment. This clause is not different from the rule at common law as applied to the sale of personal property, other than commercial paper. The Supreme Court in discussing the rule as it existed at common law used this language:

“It is not contested, in argument, that the law is where personal property, other than commercial paper, is, by contract, sold for cash, to be paid on delivery, the delivery and payment are concurrent acts, and, therefore, if the goods are put into possession of the buyer in expectation that he will immediately pay the price, and he does not do it, the seller is at liberty to regard the delivery as conditional, and may at once reclaim the goods. * * * An attempted payment by a draft or check which is dishonored is no payment. * * * And in such cáse trover lies for the recovery of goods, possession of which is obtained by such attempted payment.” Canadian Bank of Commerce v. McCrea, 106 Ill. 281.

While the rule is that a check is only presumed a means of payment, it may be shown that a check has been accepted as absolute payment. That rule has been recognized by the Supreme Court of this State in Bailey v. Pardridge, 134 Ill. 188; and Strong & Wiley Bros. v. King, 35 Ill. 9. The same rule is announced in Daniel on Negotiable Instruments (4th Ed.) sec. 623.

In Strong & Wiley Bros. v. King, supra, the Supreme Court held as follows: “Although the bare reception of a check will not usually be considered as payment, but simply as a means of obtaining payment, still it may be shown that the check was, in fact, received as absolute payment. The ±—it may be established by showing an express agreement to that effect, or by showing such circumstances as will satisfy the mind that such was the understanding of the parties at the time the check was taken. ’ ’

It follows that it is necessary to determine whether the check given by Mrs. Wood was accepted as payment or as a means of payment. The trial court heard the witnesses testify and under these conditions a court of review will not disturb the judgment unless it is manifestly against the weight of evidence.

The appellees testified in substance that prior to the purchase of the automobile they told appellants that Mrs. Wood intended to purchase an automobile and for appellants to investigate Mrs. Wood’s financial condition and if they were satisfied with it to bring one out. That appellants came several times to the home of appellees and brought an automobile with them which they demonstrated on several occasions and that appellants repeatedly stated to appellees that they had investigated Mrs. Wood’s financial condition and were satisfied with it. That finally Mrs. Wood became satisfied with the automobile appellants were trying to sell and gave her check for the purchase price. Shortly thereafter appellants brought the automobile out to deliver it and Mrs. Wood stated to appellants that she wanted Mrs. Parks to have it as part pay for her services in caring for her, and that pursuant to that request appellants made out a bill of sale and delivered it and the car.

The bill of sale given by appellants to Mrs. Parks is as follows:

“Mounds, Illinois, Dec. 30th, 1916.

“We have this day sold to Mrs. E. W. Parks one Maxwell car. Consideration five hundred seventy-five dollars, and accepted Mrs. Ann Wood’s- check for payment of same.

Scruggs & Hieronimous
By George II. Scruggs. ’ ’

Mrs. Susan A. Parks testified in substance that she was present at the time the trade ivas made, that she was the mother of E. W. Parks and that appellees told appellants to investigate the financial condition of Mrs. Wood and that appellants told appellees that her check was perfectly good. 1 ‘ That the bill of sale went on the trouble of Mrs. Parks as part pay.”

Margaret Hagan testified in substance that appellants promised her $25, if she would help make the sale. That appellants said they had investigated Mrs. Wood’s standing.

B. J. Hagan testified in substance that some time after the sale he asked Scruggs how things were and that Scruggs said he “hadn’t got the money yet, but he wasn’t bothered about it.” He said he had investigated.

The appellants testified that the appellees represented to them that Mrs. Wood had the money in the bank and that they relied on that statement and made the sale to Mrs. Wood.

There was but one other witness called by appellants and he testified that he served the papers in the case on the appellees and that at that time Mrs. Parks wondered why they wanted to push them for the money, that Mrs. Parks said that Mrs. Wood had the money in the bank.

It cannot be reasonably said that the finding of the court on this record is against the manifest weight of the evidence.

It is complained that the court erred in the admission of evidence. The evidence above recited was competent, and striking out all the evidence complained of leaves sufficient evidence to sustain the judgment of the trial court. ,

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.


text:
    Alice Jerrell, Appellee, v. Harrisburg Fair and Park Association, Appellant.

      X. Judgment, § 217*—when motion in arrest mil not lie on ground of insufficiency of declaration. A motion in arrest of judgment on the ground that the declaration was insufficient to sup-, port the judgment was properly denied where one count contained a defective statement of a good cause of action.
    2. Judgment, § 216*—when question of form in declaration cannot be raised by motion in arrest. The question of form in a declaration cannot be raised by a motion in arrest of judgment.
    3. Agbicultube, § 3*—when declaration in personal injury action against fair association states cau.se of action. A declaration in a personal injury case by a guest who had paid an admission fee to see an automobile race at an exhibition given by defendant fair and park association, and sustained injury by being struck by one of the automobiles leaving the race track and striking her, stated a cause of action in alleging the duty to keep the ground allotted and set apart for guests adjoining to and surrounding the short turn in the race track reasonably free from danger likely to occur in consequence of the automobile race.
    4. Agbicultube, § 3

      —Iliability of fair association for injuries to spectator at automobile race. A fair and park association, which while giving an exhibition had offered prizes to automobile contestants and had invited the public to attend and charged an admission fee, could not he heard to say in an action by one who had paid to see the race, and was injured by one of the racing automobiles'leaving the track and striking her, that it had no control over the contestants, and that even though plaintiff was injured through the negligence of such contestant, it was not liable.

      5. Instructions, § 110*—when instruction as to plaintiff’s right to recover in general is proper. Where one of the counts of a declaration stated a cause of action, an instruction was proper which stated that plaintiff was entitled to recover if the jury believed from the preponderance of the evidence that plaintiff made out her case as charged in the declaration, or any count thereof.
    6. Damages, § 212*—when instruction that jury may consider physician’s Mils is proper. Testimony in a personal injury case by a married woman that she expended money for doctor’s bills justified an instruction that the jury might consider physician’s bills in estimating damages.
    7. Damages, § 19

      —inability of married woman to do housework as causing financial loss. A married woman suffers financial loss because of inability to do her housework.
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed November 7, 1919.
    A. C. Lewis and Robert E. Choisser, for appellant.
    Fowler & Rumsey, for appellee.

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

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

   Mr. Justice Eagleton

delivered the opinion of the court.

The Harrisburg Fair and Park Association, a corporation, on and prior to July 4, 1916, was in possession of 40 acres of land lying about one mile north of Harrisburg which is used as a park and fair ground. At different times it had given exhibitions thereon consisting of races and agricultural fairs. Near the center of the tract of land was an oblong race track one-half mile around, the long way being east and west. For the accommodation of guests there was a covered grand stand furnished with seats located near the center of the south side of the track. Immediately east of the grand stand was a sharp curve or turn in the race track. The outer edge of the race track at the turn was about 3 feet above the level of the ground and about the same distance higher than the opposite side of the track.

The above facts, except as to the former exhibitions, were set forth in the declaration and it ivas averred that the short turn in the track was a dangerous place for automobiles to run at a high rate of speed for the reason that it was likely to cause an automobile so running to leave the track. It was also averred that the space immediately adjoining the short curve, on the outside thereof, had been set apart as a place for guests to watch the races on said track.

It was further averred in the declaration that prior to July 14, 1916, appellant had arranged to have a speed and endurance contest in a 100 mile race between automobiles on said race track for a purse of $500, to be paid by appellant, to the successful contestant, that appellant advertised the same and invited the public to attend and fixed an admission fee of 25 cents for each person attending and that pursuant to said advertisement appellant held said exhibition, on said date, and that five automobiles entered the contest,

i It was further averred that appellee attended the exhibition, paid the required admission fee and took a position on the part of the grounds so set apart for that purpose adjoining the short turn in the race track, and that after she had been watching the race for some time one of the automobiles engaged in the contest, while running at a high rate of speed at the short turn in the track, left the track and ran against appellee knocking her down and seriously injuring her. It was also averred that appellee was using due care for her personal safety.

It is argued that the declaration is not sufficient to support the verdict for the reason that neither count contains, by apt averment, the charge that it was the duty of appellant to use reasonable care to furnish appellee a. reasonably safe place from which to watch the race, that neither count charges any negligence on the part of appellant and that each count in the declaration fails to show casual connection between negligence on the part of appellant and the injury complained of. It is likewise claimed the proofs fail to show these facts.

On the question of negligence on the part of appellant it is argued that it had no control over the contestants in the race. That it in no manner attempted to regulate or control the contestants and that they were in no way subject to the direction of appellant and that even though one of the contestants was negligent and thereby appellee was injured, appellant would not be liable therefor. The proof on this question offered by appellant was that the only restriction placed by appellant on contestants was as to the displacement of the piston in the automobiles entering the contest.

The proof offered by appellee tended to establish the facts above recited, while on the part of appellant it offered evidence of witnesses who testified that police officers stood at the place in question and warned the people that it was a dangerous place. Witnesses on behalf of appellee said these officers were there for the purpose of keeping persons from crossing the track while the race was on.

The declaration on which the case was tried contained three counts. Appellant filed a demurrer to the declaration and then filed pleas thereto. The case was, tried by a jury and a verdict for $1,500 returned in favor of the appellee. After motions for a new trial and in arrest of judgment had been denied, judgment was rendered on the verdict, from which this appeal is prosecuted.

The grounds set forth in the motion in arrest of judgment, so far as the declaration may. be questioned by that motion, are: "

" “The declaration is insufficient in law to support a judgment thereon.

‘1 The declaration does not state a cause of action.” This motion being directed ag’ainst all the counts in the declaration, if there is one count that will stand against the motion the court did not err in denying the motion and entering judgment so far as the declaraT tion is concerned.

On the question of the duty of appellant to use reasonable care to furnish a reasonably safe place from which appellee could watch the contest, the third count in the declaration contained the following averment :

‘ ‘ That it then and there became and was the duty of the said defendant to exercise reasonable care to keep the said grounds so allotted and set apart, adjacent to and surrounding said short turn in said race track for guests aforesaid reasonably free from danger likely to occur in consequence of said antomobile race, and reasonably safe from danger from accident likely to occur.”

The Supreme Court in discussing what questions may be raised by a motion in arrest of judgment has said:

“The rule, as we understand it, is that pleading over to the merits will aid a defective statement of a good cause of action, but will never assist a statement of a defective cause of action.” Marske v. Willard, 169 Ill. 276.

From this it follows that the question of form, in a declaration, cannot be raised by a motion in arrest of judgment. In that pleading the question that can be raised, so far as the declaration is concerned, is the question of substance. If a plaintiff has a good cause of action, even though it may be defectively stated, judgment will not be arrested after pleas are filed to the merits and a verdict has been returned.

On the question of estoppel by verdict, the Supreme Court has held: “After verdict, judgment will not be arrested for any defect in the declaration, which, by reasonable intendment, must be considered to have been proved, or where the requisite allegation may be considered as part of what is already alleged in the declaration.” Cribben v. Callaghan, 156 Ill. 549.

In the application of these rules in a ease where an employee had been killed and the relationship of master and servant had been set forth in the declaration and it was averred that it was the duty of the defendant “to exercise reasonable care to keep the cable in a reasonably safe condition so as to keep it from breaking, etc.,” the Supreme Court held: “The averments of the declaration showed the existence of the relation of master and servant between plaintiff in error and deceased, from which the law raises the duty of the master to furnish the servant a safe place to work, and the averments showed, as clearly as if stated in express terms, the failure to perform that duty.” Raxworthy v. Heisen, 274 Ill. 398.

The rule in this class of cases is stated by the Supreme Court in the case of Hart v. Washington Park Club, 157 Ill. 9, as follows: “If an owner or occupier of land, either directly or by implication, induces persons to come upon his premises, he thereby assumes an obligation that such premises are in a reasonably safe condition, so that the persons there by his invitation shall not be injured by them, or in their use for the purpose for which the invitation was extended. ’ ’

Following the rule laid down in the case of Raxworthy v. Heisen, supra, the declaration in this case was not open to an attack by a motion in arrest of judgment.

The appellant was giving an exhibition on grounds in its possession. To secure attractions it had offered a prize to the successful contestant. It invited the public to attend and charged an admission fee of 25 cents. This is not different, so far as the public is concerned, from hiring attractions and paying each for their work. It is a fact that many attractions are given in a peculiar manner entirely under the control of the person in charge thereof, and a person employing such an attraction would have no control whatever over the manner in which the attraction would be staged, yet a person employing such an attraction cannot escape liability by saying the person acts independently. The person employing the attraction is giving the exhibition.

Complaint is made of the second, third, fourth and fifth instructions given by the conrt at the request of the appellee.

The second instruction tells the jury that if they believe, from the preponderance of the evidence, and under the instructions of the court, that the plaintiff has made out her case as charged in the declaration, or some count thereof, they should find for the plaintiff.

An instruction containing the substance of this instruction was held not reversible error by the Supreme Court in the case of Belskis v. Dering Coal Co., 246 Ill. 62.

Appellee’s third and fourth instructions were based on the rule quoted from the case of Hart v. Washington Park Club, supra. The third instruction informed the jury that where a person invites the public to attend an exhibition and charges an admission fee, it becomes the duty of such person to exercise reasonable care to make the place provided for guests reasonably safe. The fourth instruction told the jury that under the same conditions it becomes the duty of such person to use reasonable care to make the place where guests are expected to be reasonably safe for the protection of such guests against danger likely to result from such exhibition. These instructions are supported by the rule mentioned. They stated the law correctly and even though abstract propositions of law they were applicable to the facts and did not mislead the jury. It is not reversible error to give such an instruction. Danley v. Hibbard, 222 Ill. 88.

The fifth instruction given at the request of appellee is substantially the same as an instruction sustained by. the Supreme Court in the Chicago & M. Elec. Ry. Co. v. Ullrich, 213 Ill. 170, except the instruction now under consideration told the jury that they might consider physician’s bills in any estimate of damages they might consider.

It is argued there was no evidence on which to base the portion of the instruction as to physician’s bills. It is also argued that, as the appellee was a married woman, she could not recover for loss of time for the reason her husband was the only person damaged thereby. In the abstract prepared by counsel for appellant, the testimony of appellee as to payment of physician’s bills is omitted, but in the additional abstract prepared for appellee it appears in her testimony that she paid $75, physician’s bills. This was sufficient on which to base that portion of the instruction. As to the position that a married woman does not suffer financial loss because of inability to do her housework, there is no case cited in support of that theory nor is there any reason for such rule. It is not the law.

It is next urged that the court erred in refusing appellant’s refused instructions numbered 1, 10, 13, 14 and 22.

Its refused instruction number 1 was as follows: “If you find from the evidence that the plaintiff received the injury complained of as the result of a mere accident, the plaintiff must recover and you should find the defendant not guilty.” This was clearly wrong. It means nothing.

Appellant’s refused instruction number 22 was as follows: “For an injury which is the result of an accident there can be no recovery. And if you believe from the evidence that the injury suffered by the plaintiff was the result of a mere accident, and that it was not caused by the negligence of the defendant, you must find the defendant not guilty.”

It will be observed that the first sentence in this instruction stated to the jury that if the injury to appellee was the result of an accident, appellee could not recover. The word “accident, ” when used with reference to its legal meaning, was not defined in any instruction given at the request of either party.

Appellant’s refused instruction number 10 told the jury that if appellee had done certain things she was not using due care 'for her personal safety and she could not recover. The question of due care on the part of appellee was a question of fact for the jury and the court should not invade the province of the jury, which it would have done if this instruction had been given.

Appellant’s refused instructions numbers 13 and 14 were fully covered by other instructions given at its request.

During the examination of witnesses some of them were permitted to testify that the place where appellee was located at the time of being injured had theretofore been used as a place for persons witnessing races. This was objected to on the ground that the elements necessary to prove a custom were not proven. The elements necessary to prove a custom that has become a law were not involved. It was averred in the declaration that the particular place had been allotted for that purpose and the length of time it had been so used had no effect on the question of the allotment. The moment the place was so allotted and guests permitted to use it, it was established. It was not improper to admit the proof for the purpose of showing the place had been so used on former occasions, that being a proper method of showing how it was used.

One of the attorneys for appellee, in the argument of the case, made a statement that was not warranted by the evidence, Appellant’s counsel made objection and the objection was sustained. It is argued this was prejudicial. There is no doubt the remark was not proper and the court properly sustained objections to it. It is not, however, of such character as to prejudice the rights of appellant when properly acted on by the court as was done in this case.

On the question that the verdict is against the weight of the evidence, that was determined by the jury. There was some conflict in the evidence and unless the verdict is manifestly against the weight of the evidence, or there is some reversible error in some of the rulings of the court, either during the progress of the trial or in the instructions, a court of review will not interpose its judgment for that of a jury. Finding no reversible error in the record the judgment will be affirmed.

Affirmed.