text:
    Robert Kelso, Plaintiff in Error, v. August Grundies and Hiram A. Draper. Defendants in Error, Impleaded with Albert Grundies.
    Gen. No. 17,326.
    1. Appeals and buboes-—when judgment on appeal bond map he vacated. It is sufficient ground for setting aside a judgment on an appeal bond, that the judgment Is for damages in nearly double the amount of the bond and by its terms it is to be satisfied only upon the payment of such damages.
    2. Appeals and errors'—when failure to set aside a verdict on appeal bond is waived. Failure to set aside a verdict on setting aside a judgment on an appeal bond is waived by the action of the plaintiff in consenting to the rendition of a judgment in his favor for costs.
    3. Dismissal and nonsuit—when failure to comply with rule to reply is ground for dismissal. Where a plea puis darrien continuance to an action upon an appeal bond, upon an appeal from a circuit court, sets up that pending the suit the amount of damages attempted to be recovered had been paid by the payment of a judgment on a bond given at the time appeal was taken from a justice of the peace, on a refusal of the plaintiff to comply with a rule to reply, the case may be dismissed.
    Error to the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed November 12, 1912.
    John W. Burdette, for plaintiff in error; Samuel J. Lumbabd, of counsel.
    William R. Hauze, for defendants in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This case comes before us on a writ of error sued out by Robert Kelso upon a judgment entered in the Circuit Court of Cook county on December 17, 1910, the judgment order being in the following language:

“This day again come the parties to this suit by their attorneys respectively.
“Thereupon, on motion of defendants’ attorney, it appearing to the court that the plaintiff has failed to comply, with a rule of this court heretofore, on December 3,1910, entered herein, it is ordered that this cause be and the same is hereby dismissed for failure to comply with said rule.
“Thereupon on the agreement of said parties now here made in open court, it is ordered that the cost's herein be taxed against the defendant in said cause
“Thereupon the plaintiff by his attorney enters herein his motion to set aside and vacate the order heretofore entered herein, vacating the judgment heretofore, on October 25, 1910, entered herein and also to vacate all orders entered in said cause after December 3d, A. D. 1910, and the amendment filed by the defendant Hiram Draper be stricken out and that the judgment heretofore, on October 25, 1910, entered herein stand of full force and effect which motion is hereby overruled and denied.
“Therefore it is considered by the. court that the plaintiff do have and recover of and from the defendant his costs and charges in this behalf expended, and have execution therefor.”

The suit was begun in October, 1891, against Albert Grundies (now deceased), August Grundies and Hiram A. Draper, upon a penal bond in the sum of $750, given by Albert and August Grundies as principals, and Hiram A. Draper as surety, upon an appeal from the Circuit Court of Cook County to this court from a judgment entered in a forcible entry and detainer suit against the principals in the bond, judgment having been rendered against them. At the same time suit was brought upon the bond given on the appeal of the case from the justice’s court to the Circuit Court. Judgment was rendered in this suit and satisfied. The second case, being the one before us, was reached for trial on October 22, 1910, at which time it seems to have been pending upon demurrer to pleas. The demurrer was on that day sustained, and three days later the case, in the absence of counsel for defendant, was submitted to a jury, who found the debt to be $750 and plaintiff’s damages $1,461. Judgment was entered upon the verdict. During the term, on a showing of the facts, the court set aside the judgment. Thereafter the defendants entered a motion to vacate the order sustaining the demurrer, which was granted, and leave given to Draper to file his plea puis darrein continuance, to which, plaintiff excepted, and a rule was entered requiring plaintiff to reply in five days, to which plaintiff also excepted. Thereafter plaintiff presented a motion that the order vacating the .judgment and the order granting defendants leave to amend the plea puis, and all orders entered after the third day of December, 1910, be stricken, and that the judgment entered October 25th stand as the judgment of the court. This motion was denied and plaintiff excepted. Thereupon the order heretofore referred to was entered dismissing the cause for plaintiff’s failure to comply with the rule to reply to the plea. It is to be noted that by the consent of the parties, costs were taxed against the defendant, the plaintiff to have execution therefor.

In our opinion the court was amply justified in setting aside the judgment rendered upon the second appeal bond. The judgment was for damages in nearly double the amount of the bond, and by its terms was to be satisfied only upon the payment of such damages. This was sufficient ground for setting it aside.

It is claimed by the plaintiff that the court at the same time should have entered an order setting aside the verdict of the jury. The point, in our opinion, was waived by the action of the plaintiff in consenting to the rendition of a judgment in his favor for costs.

The plea- set up the fact that pending this suit the amount of damages attempted to be recovered had been paid, by reason of the payment of the judgment on the bond giv'en at the time appeal was taken from the justice of the peace. This judgment was made up of four items, consisting of rent of premises for fifteen months $750, costs in the justice court $6.50, costs in the Circuit Court $12.25, and costs in the Appellate Court $2.95. Why the costs in the Appellate Court were included is not made clear.

The plaintiff refused to reply to this plea as amended. Under these circumstances we think the trial judge was justified in entering the order of dismissal, especially as the case had then been pending nearly nineteen years.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Clark

license: Public Domain

text:
    Louise Hughes, Appellee, v. J. Marion Miller et al., Appellants.
    Gen. No. 17,487.
    1. Chancery—when answer not taken as true. Where the parties consent to a reference to a master, it cannot afterwards be urged that the answer should be taken as true because no replication was filed.
    2. Chancery—waiver of exceptions to answer., Exceptions to an answer are waived where the complainant consents to a reference to a master.
    3. Mortgages—payment. In a foreclosure proceeding a conclusion that certain insurance collected did not constitute a payment' on the principal is correct where it is alleged that money for a fire loss was collected by a firm to which the trustee named in the deed belonged, but the only evidence of ownership of the note at that time is the testimony of such trustee to the effect that it was not owned by him or his firm but by a client, that his only duty was to collect the rent, and that the insurance was paid to the representative of the one who, prior to her death, was the equitable owner.
    4. Costs—stenographer's fees. Under R. S., c. 53, § 20, allowance of stenographer’s fees is proper where a cause is referred to a master.
    Appeal from the Circuit Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911. Certiorari denied by Supreme" Court (making opinion final).
    Affirmed.
    Opinion filed November 12, 1912.
    John M. Humphrey, for appellants.
    Edward B. Healy, for appelee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This is an appeal from a decree of foreclosure of a trust deed. The first point raised by the appellant is that the answer should have been taken as true because no replication was filed. It appears from the record that there was a reference of the cause to a master in chancery, and that the appellants consented to such reference. An examination of the master’s report shows that the taking of testimony was begun on March 4, 1910. After considerable testimony had been received the hearing was continued until March 12th. The record shows that the following colloquy was had between the master and the then counsel for appellants, J. Marion Miller:

The Master: “Let it appear that Mr. Miller before the commencement of the taking of testimony on the 4th day of March, 1910, wished the question of exceptions to the answer to be taken up first.”
Mr. Miller: “And the suggestion that there was no replication.”
The Master: “Yes, and the master thought it better to hear testimony in regard to the entire case together.”

There was no objection to the taking of testimony on the ground that no replication was filed. We think the case in this respect comes within the rule laid down, in Jones v. Neely, 72 Ill. 449, wherein it was held that an answer to a bill in equity which is not sworn to is not evidence, but performs the office of pleading merely, and that the mere want of replication is not sufficient cause for reversing a decree where the parties have submitted the case for decision upon pleadings and proof, and the court (in this case the master) heard proof without objection. The exceptions to the answer were those of the appellee, and she waived the same by consenting to the reference. The appellants therefore have nothing to complain of on that score.

The principal other question raised is based upon the proposition advanced by appellants, that the decree was not supported by the evidence. In this respect the appellants rely chiefly upon the alleged proof that a tender of the amount due was made by J. Marion Miller, one of the appellants. If such a tender was made, it was not kept good by the payment of the money into court, or in any other way. After an examination of the record, we think that the master and the court were justified in the conclusion that no such tender was made.

It is next alleged that the principal and interest notes were not purchased by Graham, who sold them to the appellee, but were paid by him. The master and the court found against the appellants on this proposition, and upon an examination of the record we are of the opinion that their finding in this respect also was justified.

A claim is made by appellants that the sum of $125 was collected by Goodridge, French & Co. from an insurance company for a fire loss, Mr. Goodridge of that firm being the trustee named in the trust deed. The only evidence as to the ownership of the note at this time that we have been able to discover from the record is in the testimony of Mr. Goodridge, and he testified that the mortgage at that time was not owned by him or by his firm, but by a client of the firm, and that his only duty was to collect the interest. He further testified that the amount of the insurance was paid over to the representative of a Mrs. Ottman, who, prior to her death, was the equitable owner of the property. We think that the conclusion of the master and the court that this did not constitute a payment upon the principal of the note is correct.

Another question raised in the case is as to the fees of the master. It appears that the master was allowed $208, which consisted of an item for stenographer’s services of $91.50, the statutory fee of the master for taking testimony, which amounted to $91.50, and an additional fee of $25.00 for examing questions of law and fact and preparing Ms report. The allowance of sténographer’s fees was proper. (Section 20, Chapter 53, Revised Statutes; Biewer v. Mueller, 254 Ill. 315), and we do not regard the other charges excessive.

The decree will be affirmed.

Affirmed.


text:
    John W. Millar, Appellee, v. Oliver Sollitt, Appellant.
    Gen. No. 17,510.
    Malicious prosecution—when judgment reversed. A judgment against defendant in malicious prosecution is reversed where the court is satisfied from the record that appellant had probable cause for believing appellee guilty of the offense charged.
    Action in case for malicious prosecution. Appeal from the Superior Court of Cook county; the Hon. H. C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed.
    Opinion filed November 12, 1912.
    Garnett & Garnett, for appellant; Eugene H. Gar-nett, of counsel.
    I. C. Wood, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Judgment was rendered in the Superior Court in favor of appellee and against appellant in a suit for an alleged malicious prosecution. Appellee appears to have abandoned the case in this court and has filed no brief.

On October 21, 1899, Sollitt caused the arrest of Millar for an alleged violation of section 121 of the Criminal Code, wMch provides that “Any person, after once selling, bartering or disposing of any tract or tracts of land * # * who shall again knowingly and fraudulently sell, barter or dispose of the same tract or tracts of land, '* * * or shall knowingly and fraudulently execute any bond or agreement to sell or barter, or dispose of the same land * * * to any other person for a valuable consideration, shall be imprisoned in the penitentiary not less than one year nor more than ten years.”

On October 4, 1899, after previous negotiations between the parties, a deed was made by Millar and his wife to Sollitt for a one-fourth interest in certain property in Lake county, Illinois, and was delivered to Sollitt, the purchase price being paid. The land had upon it a building formerly used as a club house. It appears that prior to this time Millar had left with his attorney a deed of the same property, in which Dr. Moore was named as grantee. The deed to Sollitt was acknowledged and delivered about half past one in the afternoon. The deed from Millar and his wife to Moore was deposited by Millar’s attorney in a mail box, with a special delivery stamp on the envelop, so that it reached the recorder’s office, in Waukegan, the county seat, at 5:30 p. m. on the same day. The abstract of title, which was in Sollitt’s hands at the time the deed to him was delivered, showed title in Millar. Some time after October 4th, and before taking out the warrant for the arrest of Millar, Sollitt learned that the deed to Moore had been recorded.. When he charged Millar and Moore with swindling him in the transaction he was told by Millar—and Millar in his testimony reiterates what he then said—that the deed made by himself and wife to Moore was for the purpose of getting the title out of his name because of insistent creditors. He further told Sollitt, and also testified at the trial, that a deed had been made by Moore to Mrs. Millar, which was to be recorded by his attorney at the same time that the deed to Moore was recorded, but that his attorney neglected to do this. As a matter of fact, a deed from Moore to Mrs Millar appears to have been recorded October 26, 1899, but there is testimony in the record tending to show that no properly executed deed from Moore to Mrs. Millar was in the possession of Millar’s attorney ok October 4th or prior thereto. Inasmuch as the record would have shown title in Sollitt immediately upon the recording of the deed from Millar and his wife to Sollitt, if the deed from Millar and his. wife to Moore had not been previously recorded, the property would have been protected from Millar’s creditors, and the transaction whereby Millar and his wife conveyed to Moore for the dubious purpose of protecting the property from Millar’s creditors would have been useless. The conclusion is almost irresistible that after making the deed to Sollitt, Millar caused the deed to Moore to be recorded for the purpose of defrauding Sollitt.

Other suspicious circumstances are referred to by appellant’s counsel, and his comments thereon would appear to be justified by the record.

It appears that in the transaction Millar’s interest in certain personal property contained in the building was transferred to Sollitt by bill of sale. It was arranged between Millar and Sollitt on October 4th that Millar should be allowed to stay on the property for some weeks thereafter. Prior to causing the arrest of Millar, Sollitt hád been told by a man in his employ that Millar was shipping away a large amount of this personal property which was covered by the bill of sale.

Prior to the arrest, also, Millar told Sollitt that his attorney had had in his possession two. deeds, one from Millar and his wife to Moore, and one from Moore to Mrs. Millar, as heretofore stated, and that both these deeds were sent for record at the same time. This statement was untrue. One of the attorneys for Millar told Sollitt that there had been some arrangement between the other attorney (his partner) and Millar whereby the Moore deed was to be held back and recorded or not, “as the case might be in case Millar sold.”

Sollitt consulted counsel before causing the arrest, and appears to have acted under their advice. There seem to have been two complaints filed, the first one having been dismissed for some informality. Habeas corpus proceedings were brought after the arrest on the second warrant and Millar was discharged, the hearing taking place in the absence of Sollitt, who apparently had the promise of the state’s attorney to bring the matter before the next grand jury, the justice before whom the case was heard having held Millar to the grand jury. It would seem that the state’s attorney afterwards thought that the proceeding ought to have been brought in Cook county and not in Lake county. We are satisfied that no unprejudiced person on reading the record could come to any other conclusion than that Sollitt had probable cause for believing Millar guilty of the offense charged against him.

We find it unnecessary to consider other questions discussed in appellant’s brief.

The judgment will be reversed.

Reversed.


text:
    Charles Youngvert, a minor, by his next friend, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,520.
    1. Cities and villages—notice of injuries from defective sidewalk. In an action for injuries sustained from a defective sidewalk, a portion of the statutory notice describing the place of accident as follows: “Said accident occurred in the- city of Chicago on, to-wit, the west side of Center avenue, between, to-wit, Sixteenth and Seventeenth streets,” is sufficient.
    2. Evidence—not hearsay where used to fix time. In an action for injuries from a defective sidewalk, the statement that witness was told about the accident by her son is not hearsay evidence where it was to fix the date to be applied to her subsequent testimony as to whether there was a barricade along the curb at the time of the accident.
    3. Contributory negligence—duty of child. In an action for injuries to a child from a defective sidewalk, it is not error to strike out a portion of an instruction where the jury, if the instruction was given as requested, might have understood that in order to recover, plaintiff must have exercised the care for his own safety required of an adult.
    4. Instructions—repetition. It is not error to refuse an instruction which is a repetition in another form of an instruction already given.
    5. Damages—excessive. An award of $2,500 for injury to a child cf six, resulting in a curvature and depression of the spine, will be sustained.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judges presiding. Heard in the Branch Appellate Court at the March term, 1911. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed November 12, 1912.
    Rehearing denied November 26, 1912.
    William: H. Sexton and N. L. Piotrowski, for appellant; David E. Levy and Egbert E. Baldwin of counsel.
    Francis J. Woolley, for appellees.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In this case there w;as a recovery by the appellee (plaintiff) against the appellant (defendant) for $2,500 for injuries alleged to have been received November 18, 1905, in an accident caused by a defective sidewalk. The plaintiff at the time of the accident was between six and seven years of age. The case was tried before the court and a jury. The grounds upon which we aré asked to reverse the judgment are that the statutory notice required was not sufficient, that there were errors in the rulings on the evidence and also in instructions, and that the judgment is excessive.

That portion of the notice relating to the place of the accident is as follows:

“Said accident occurred in the City of Chicago on, to-wit, the west side of Center avenue, between, to-wit, Sixteenth and Seventeenth streets.”

It is complained that the notice is insufficient because it appears from the map introduced in evidence that Seventeenth street, terminates on the east side of Center avenue; that there was no Seventeenth street on the west side of Center avenue, and therefore an impossible location is offered. We do not think this objection tenable. No one could have any other idea than that the notice meant to charge that the accident occurred north of Seventeenth street.

It is next said that, “between Sixteenth and Seventeenth streets ’ ’ is not definite enough in other respects. The case of Barribeau v. City of Detroit, 147 Mich. 119, is cited by the appellee as being in point. In that case the notice fixed the place at the corner of Howard and Twenty-first streets. The trial court held, and the Supreme Court affirmed the holding, that as there were four corners the notice was not sufficient. In a prior case the Supreme Court of Michigan held the following to be sufficient: “On the south side of Cherry street, between Sixth and Seventh streets, and extending from Seventh street to the first alley east of Seventh street.” Tattan v. City of Detroit, 128 Mich. 650. The defendant also cites the case of Cronin v. City of Boston, 135 Mass. 110, which seems to uphold its contention. In the opinion the following appears: “The cause alleged in the notice is that the sidewalk was ‘rough, hobbly and slippery.’ It appears by the exceptions that ‘the defect consisted of an accumulation of ice on the sidewalk in front of 371 Hanover street.’ There is no mention of ice in the notice. Unless, then, it is a reasonable construction of the notice, under the circumstances in which it was given, that there was a rough, hobbly and slippery accumulation of ice upon the sidewalk, the notice does not state the actual cause of the injury. It does not appear that there was any defect in the construction or condition óf the sidewalk itself. The defect was that ice had been permitted to accumulate upon it. * * * But, because sidewalks are often rough, hobbly and slippery with snow and ice in winter, it is important that the notice of any defect from snow or ice which causes damage or injury should describe it with great particularity.” In a later case (Lyman v. County of Hampshire, 138 Mass. 74), the language used was: “upon the bridge in Huntington, known as the Norwich bridge.” This bridge was 218 feet long, and the accident was charged to have been due to a hole in the bridge. On the trial it appeared that there were three holes in the bridge; yet the notice was found to be sufficient. We are referred by plaintiff to a large number of cases where the notice was similar to the one now under consideration, and in each the notice was held to be good: Hutchings v. Inhabitants of Sullivan, 90 Maine, 131; Fopper v. Town of Wheatland, 59 Wis. 623; Brown v. Town of Southbury, 53 Conn. 212; Mulligan v. City of Seattle, 42 Wash. 264; Werner v. City of Rochester, 77 Hun. 33; Beyer v. City of North Tonawanda, 183 N. Y. 338; Snickles v. City of St. Joseph, 139 Mo. App. 187. We think that the notice in the case before us is sufficient.

Complaint is made that Johanna Thuma, one of the witnesses for the plaintiff, was permitted to give hearsay evidence. She said her son told her about the accident. The witness did not say what she was told. She merely stated in answer to a question that she remembered being told about the accident; and apparently this was to fix the date to be applied to the testimony subsequently given by her as to whether or not there was a barricade along the curb at the time of the accident.

Objections were made to other questions asked, but we .do not find in the rulings any error which we think should cause a reversal of the case.

The 7th instruction of the defendant, as tendered, read as follows:

“The court instructs the jury that the condition of the sidewalk in question prior to the time of the alleged accident, if any is proven, cannot be considered by you in determining whether or not the defendant, City of Chicago, was negligent in failing to use reasonable care to keep said sidewalk reasonably safe, if you should further find from the evidence that the sidewalk complained of as dangerous, was at the time of the alleged accident, barricaded in such a manner that travelers or pedestrians approaching it who were in the exercise of ordinary care for their own safety would have had notice that at or beyond the place where said barricade was erected, a dangerous condition existed.” '

The court struck out of the instruction as tendered the words, “who were in the exercise of ordinary care for their own safety.” We do not think the court erred in this respect. The jury, if the instruction had been given as requested, might have understood that in order to recover the plaintiff must have been in the exercise of the care required of an adult for his own safety; but this is not required of a boy plaintiff’s age. In the instruction as given there was nothing to suggest to the jury that because the plaintiff was an infant the barricade must have been any other or different from that required to protect an adult by giving notice to him.

In the defendant’s brief it is argued that the ctiurt erred in striking out a portion of the 9th instruction. The language referred to does not appear in the 9th instruction as tendered, but in the 8th. As given, the 8th instruction advised the jury that before the plaintiff could recover for any ailments charged in the declaration he must show by a preponderance of the evidence not only that such ailments really exist, but also that they are a result of the accident in question, and that he must show by a greater weight of the evidence that they are a direct and proximate result of such accident; that the burden is not upon the defendant to show that they have arisen from any other cause. The portion of the instruction tendered and not given was a repetition in another form of a portion of the instruction as given, and we do not think the court erred in the modification.

It is next complained that the verdict is excessive. The case was tried five years after the accident, and there was testimony tending to show that there was a curvature and depression of the spine existing at the time of the trial, which, in the opinion of the attending doctor, was a result of the accident. The trial court by denying a motion for a new trial, placed the seal of its approval upon the verdict of the jury in respect to the amount of damages. After a careful examination of the record we are unable to say that the amount is excessive.

The judgment is affirmed.

'Affirmed.


text:
    Causetta Posey, Appellee, v. William B. Graham, Appellant.
    Gen. No. 18,776.
    Appeals and ebboes—necessary that record contain transcript of judgment. Where a record does not contain a transcript of judgment as provided by the Practice Act, section 100, the appellate court has no jurisdiction and an appeal will be dismissed. Section 81 as amended in 1911, has not in effect amended the provision of section 100.
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Appeal dismissed.
    Opinion filed November 12, 1912.
    Rehearing denied and opinion modified and refiled November 26, 1912.
    Rogan & Mahoney, for appellant; J. Kentneb Elliot and Howard M. Haepel, of counsel.
    John F. Haas, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

A motion in this case has been made by the appellee to dismiss the appeal. The record filed consists of the bill of exceptions and copy of the declaration, pleas of the defendant, replication of the plaintiff to the pleas, and appeal bond. No transcript of the judgment appears.

Section 100 of the Practice Act provides that “Authenticated copies of records of judgments, orders and decrees appealed from any court to the Appellate Courts shall be filed in the office of the clerk of the Appellate Court on or before the second day of the succeeding term of said court: * * * otherwise the said appeal shall be dismissed.” If this provision of the statute is not complied with (and it was not in this case) this court has no jurisdiction. Pardridge v. Morgenthau, 157 Ill. 395; O’Donnell v. Quinn, 100 Ill. App. 5. No application for further time in which to file a proper copy of the record was made to this court before the expiration of the time fixed for filing such copy.

The appellant insists that section 81 of the Practice Act, as amended in 1911, has in effect amended the provisions of section 100, but we cannot agree with him. in that regard. Section 81 relates principally to bills of exceptions, and does not purport to amend section 100; nor can it be said in any way to be the basis of the jurisdiction of this court.

Appeal dismissed.


text:
    William H. Benvie, Defendant in Error, v. Chicago Stock Yards & Transit Co., Plaintiff in Error.
    Gen. No. 17,808.
    Appeals and ebrobs—when hill of exceptions is necessary to review. Where no bill of exceptions appears in the record, no question is preserved for review by assignments of error relating wholly to questions of evidence.
    Error to the Municipal Court of Chicago; the Horr. Geokge J. Cowing, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 8, 1912.
    Josiah Burnham, for plaintiff in error.
    Mark J. Sullivan, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Judgment was obtained by the defendant in error against the plaintiff in error in the Municipal Court, which we are asked to reverse for the reasons, as alleged, that improper evidence was admitted and proper evidence excluded, and that the finding was excessive.

No bill of exceptions, however, appears in the record, and, consequently, no question is preserved for review by the assignments of error, which relate wholly to questions of evidence.

Affirmed.


author: Mr. Justice Barnes

text:
    Max L. Teich and Carl C. Roessler, Complainants and Appellees, v. Nathan M. Kaufman et al., Defendants and Appellants. Max L. Teich and Carl C. Roessler, Appellees and Complainants, v. Nathan M. Kaufman et al., Appellants and Defendants.
    Gen. No. 18,686.
    Gen. No. 18,762.

    l. Injunctions—what not considered on appeal from order granting. Whether an interlocutory order granting an injunction is properly entered depends on the record as it stands at the time of perfecting an appeal therefrom, and the record of subsequent proceedings to dissolve the same will not be considered on such appeal it appearing the injunction was still in force when the appeal was taken.
    2. Corporations—stockholders’ contract looking to pecuniary benefit is against public policy. A contract between some of the stockholders of a hotel corporation whereby they agreed that for five years all of the parties should be elected directors, that their stock should be voted as a unit on all propositions, that each should have an option on the others’ stock and that as directors they would elect to or secure one another salaried official positions, is against public policy and cannot be* enforced.
    3. Corporations—when collateral matters are immaterial in enforcing illegal contract. Where a contract between stockholders of a corporation to elect one another as directors, acquire control and management of the company and obtain salaried official positions for one another, is illegal, in attempting to enforce the contract it is immaterial what was done before or after its .execution, unless the agreement was known to and approved by all the stockholders.
    4. Corporations—when stockholders must have knowledge of illegality of contract. Where stockholders of a corporation, by a contract between themselves, acquire control and management and obtain salaried official positions for some of them, it is immaterial that the contract between the salaried officials and the corporation was approved at • a meeting of stockholders if it does not appear that the stockholders other than the parties to the illegal agreement had any knowledge of such agreement, and, if they did, it should affirmatively appear before equity will enforce such a contract.
    5. Corporations—when illegality of provision taints entire contract. Where stockholders of a corporation contract between themselves that for five years they will elect all the parties directors, obtain control and management, give each an option on the others’ stock and obtain salaried official positions for one another, the mutual promises relating to pecuniary benefits, being illegal and part of the consideration of the contract, neither the contract, nor any obligation growing out of it, can be enforced.
    Appeal from the Superior Court of Cook county; the How. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed.
    Opinion filed October 25, 1912.
    Henry S. Robbins, for appellants.
    Mayer, Meyer, Austrian & Piatt and Rubens, Fischer & Mosser, for appellees.
   Mr. Justice Barnes

delivered the opinion of the court.

Appellees, Teich and Boessler, filed a bill in equity against Nathan M. Kaufman, Samuel B. Kaufman, Congress Hotel Company, and Simeon Straus, praying for a preliminary and permanent injunction, the effect of which would be to enforce an agreement between said Kaufmans and appellees (therein and herein referred to as agreement B) and likewise one entered into between appellees and said Congress Hotel Company (therein and herein referred to as contract C). From the order granting a preliminary injunction on the filing and reading of the bill, the Kaufmans have appealed. After perfecting said appeal, motions to dissolve said injunction were made by said Company based on its demurrer to the bill, and on behalf of the other defendants, based upon their respective answers, affidavits and oral evidence. The motions were denied and from the denial thereof said company and said Kaufmans have appealed. As such appeals aré all in the same suit, they may properly be considered in one decision.

Appellees urge that the appeal from the order granting the injunction should be considered with reference to what appears in the record showing the proceedings on the motion to dissolve it, and cite the case of Sharples v. Baker, 100 Ill. App. 108. The statute gives the right to appeal from either the granting or refusal to dissolve such an order. The bond on the appeal from granting the injunction was approved and filed June 14, 1912. The proceedings to dissolve such injunction were at a later date and could not affect the question whether or not the injunction was properly granted. That question is before this court on the record as it stood when the appeal was taken. In the Sharpies case, supra, it appeared from the record that the injunction appealed from was not in force at the date of the appeal, having been previously modified at appellant’s own request. The injunction in the case at bar, being still in force at the time of perfecting the appeal, this court will consider the questions thereby raised.

The record discloses that the Kaufmans owned 4934 shares of the common stock of said company and appellees an equal number, which together made a majority of the outstanding voting stock. The Kaufmans as parties of the first part, and appellees as parties of the second part, entered into a written agreement B, January 10, 1911. It provided that for a period of five years therefrom all the shares of stock owned by them should be voted in the same way on any propositions that might come before any stockholders’ meeting and for the same director or directors at any election to be held, as the parties thereto might decide; that until otherwise decided all of said parties should be elected directors of said company; that as members of said board of directors they should vote for and secure the election of N. M. Kaufman as president and provide for an annual salary of $7,500, to be paid him, and the election without salary of Boessler as vice president, and Teich as secretary and treasurer, and that they should secure the making of a contract for the services of said Teich and Boessler as managing directors of said company for the period of three years, as the same had then been prepared and reduced to writing for submission at the next meeting of the board of directors, and secure an extension thereof during the life of the agreement.

The contract to employ appellees as managers, referred to as contract C, was read and approved at a special meeting of the board of directors, held the next day, and provided that the company should pay said Teich and Boessler as such managers jointly and -to the survivor of them $15,000 a year.

Agreement B further provided that each party to it, in case of default in the payment of certain notes, given by the other, might respectively pay the same and then become entitled, on terms and prices therein fixed, to stock of said company pledged as collateral to said notes. It further provided that during the lifé of the agreement neither party should sell or dispose of his shares of stock covered thereby to any other person than the parties thereto, without first giving the other parties the right to purchase the same at the market price- within thirty days; and that the sale of such stock, in any event, so long as the agreement was in force, should be made subject to the terms thereof, and with full notice thereof to the purchaser. It further provided that in case of a disagreement as to the interpretation thereof, or policy to be pursued by the parties thereto, the matters in dispute should be submitted to said Straus for decision, which should be binding on all parties.

The bill sets forth certain transactions between the parties leading up to the execution of agreement <(B” which, as we view the case, need not be referred to or considered, and certain other matters subsequent thereto, the purport of which is that the Kaufmans violated the terms of agreement B, and sought to bring about the annulment of contract G, and to that end conspired to get, and have secured, enough additional stock, to give them a majority of the common stock, and thus the means of controlling said company and annulling contract 0.

The bill further alleges that said Straus has prejudged the questions that may be submitted to him.

Among other things the bill prays that the Kaufmans may be declared trustees for appellees as to one-half of all the stock acquired by them subsequent to the date of agreement B, and account for the profits, and be required to transfer the same to appellees on certain conditions of their paying therefor; that the interests of said Kaufmans and appellees in their stockholding shall be declared joint and a partnership in effeót; that a receiver be appointed to vote said stock as joint stock, and asks for a temporary and a permanent injunction, which seek in effect a specific performance of not only agreement B but contract C.

The order for injunction was entered May 18, 1912, and enjoins the Kaufmans from selling, transferring or assigning any shares of stock owned or controlled by them “except in conformity with the terms of said agreement, Exhibit ‘B” and also enjoins them, or their agents, until further notice, from voting any shares of stock owned or controlled by said Kaufmans at any future stockholders’ meetings for directors other than such directors as may be mutually agreed upon by the Kaufmans and appellees, and enjoins the defendant Straus from acting as an umpire or arbitrator under said agreement.

The principal contention relied upon in both appeals and the only one we deem necessary to consider is that said agreement B is void as being against public policy, and, therefore, one that cannot be enforced. Holding, as we are compelled to do, that it is an agreement of suph a character, it is unnecessary to consider the matters of fact involved in the negotiations preliminary to its execution, or subsequent facts bearing on the efforts of the Kaufmans to repudiate it. If it is illegal, it matters little what was done before or subsequent to its execution (unless such agreement was known to and approved by all the stockholders) for, if against public policy, neither party is in position to assert any rights under it, or to ask for its enforcement directly or indirectly.

The contract was something .more than an agreement to elect one another as directors, acquire control and management of the company, and secure options on one another’s stock. The courts have frequently upheld contracts of such a character. But it was an agreement to bind and control their judgment as such directors without regard to the interests of the stockholders they represented. Under it, they were obligated as directors to pursue a definite course of action for a series of years, looking specifically to their profit as officials or employees.of the company, regardless of the effect upon it or its stockholders. Stockholders are entitled to the exercise of the free and honest judgment of their directors upon conditions as they arise and bear upon the interests of the company. To bargain away in advance for their own profit the judgment the law contemplates they shall exercise at subsequent official meetings for the company’s interests on conditions as they arise for consideration, is incompatible with a faithful and just performance of their official duties, and with the fiduciary relationship of their position. Certainly they could give no proper consideration to such matters affecting the interests of the company, or its stockholders, as might conflict with their obligations and liabilities under a private agreement looking to their individual interests alone. It is not difficult to conceive that such a course of action might result in the exploitation of a company’s assets merely to furnish profitable employment for its directors and their friends; and that it might result in failure or bankruptcy. Equity will not stop to inquire into the actual results of such a contract. It is enough that its tendency is to prevent them as directors, by whom, under the statute, “the corporate powers shall be exercised,” from a faithful performance of the duties which devolve upon them in their representative capacity.

In the case of West v. Camden, 135 U. S. 508, the court said, with regard to an agreement which bound the future actions of a director to keep a person permanently in the position of vice president of the company, irrespective of its interests, that the stockholders had a right to have the defendant’s judgment as an officer of the company exercised with sole regard to the interests of the company, and that such a contract was void as against public policy even though there was no direct private gain to said director. It was there said that his liability under such an agreement was calculated to be a strong incentive for him to act directly contrary to the true interests of the company and its stockholders.

In Guernsey v. Gook, 120 Mass. 501, where two of the stockholders agreed to secure to the purchaser of a part of their stock at a price named, the treasurership of the corporation at a certain annual salary, the contract was also held void as being against public policy. The court said:

“The promisee was placed under direct inducement to disregard his duties to other members of the corporation, who have a right to demand his disinterested action in the selection of suitable officers. He was in a relation of trust and confidence, which required him to look only to the best interest of the whole, uninfluenced by private gain.”

The court further said, as might be said here, that,

“The objection that the contract is illegal, although it comes with no good grace from the defendant, is allowed to prevail, not as a protection to him, but for the sake of the public good, and because the public will not lend its aid to enforce an illegal contract.”

In Cone v. Russell, 48 N. J. Eq. 208, an agreement by a stockholder to give other stockholders his proxy irrevocable for five years to vote his shares at all stockholders’ meetings so as to secure him continuous employment as manager of the company at a salary of $2500 a year, was held against public policy. The court said:

“Servants of a corporation should be employed and paid upon their merits, and buying votes for an office in a corporation is of the same objectionable character as buying them for a public office. The same may be said of buying the right to control the business policy and management of the affairs of a corporation.”

In the case of Woodruff v. Wentworth, 133 Mass. 309, the agreement of a stockholder to vote for a certain party as manager and to increase the salary of officers, including that of the manager, was held to be void as against public policy, “unless it was consented to by all the stockholders of the corporation.”

It is urged in the case at bar that the contract between appellees and the company for their services and management was approved at a meeting of the stockholders; but it does not appear that the stockholders of the company, other than the parties to agreement B, had any knowledge of such illegal agreement, and if they did, it should affirmatively appear before a court of equity will enforce a contract of such character. With respect to this question, the facts in the case at bar are quite different from those in the cases of Faulds v. Yates, 57 Ill. 416, and Kantzler v. Bensinger, 214 Ill. 589, which appellees bring to our attention. In the Faulds case, supra, the agreement did not bind the parties to any specific course of action as directors, or that they should, as such, vote one another salaries; and, in the Kantzler case, supra, the agreement, as expressly stated in the decision, was entered into by all the stockholders. Other cases cited by appellees, upholding contracts between stotíkholders to elect one another directors or to secure the management and control of the corporation, and similar contracts, are clearly distinguishable from and not inconsistent with the West, Guernsey and other cases above cited, the decisions , of which rest upon a state of facts where one in a fiduciary relation entered into a contract incompatible with his performance of the duties devolving upon him in such relation.

It has been held by our Supreme Court that a resolution by which a salary or compensation is voted to an officer of a corporation is illegal if carried by his vote and equally illegal if procured by his influence, although enough directors voted for it to carry it without counting him. Adams v. Burke, 201 Ill. 395; McNulta v. Corn Belt Bank, 164 Ill. 427. It would seem to follow that any previous agreement between directors for such action would also be illegal.

But it is urged by appellees that the provisions in agreement B are separable. It may be assumed that the provisions to elect one another directors. and to give each an option on the other’s stock were intended to insure the fulfilment of its main provisions to give N. M. Kaufman and appellees salaried positions for a period of five years. Whether so or not, it is manifest that the mutual promise binding the parties, as directors, to vote for and to secure the salaried positions as aforesaid, entered into the entire agreement as a consideration therefor. “Nothing is better settled in the law of contracts than that if any part of the consideration upon which a promise rests is illegal the entire promise fails.” Estate of Ramsay v. Whitbeck, 183 Ill. 550; Henderson v. Palmer, 71 Ill. 579.

While the injunction relates to parts of the contract which otherwise might be upheld, tainted as they are by the illegal consideration upon which they, at least in part, rest, the injunction cannot stand. We, therefore, deem it unnecessary to consider any other questions presented in these appeals, except the interest of appellant Congress' Hotel Company, which is affected by said injunction so far as by enforcing agreement B it seeks to enforce contract C. We need not pass upon the validity of the latter contract further than to hold that so far as the bill seeks its enforcement as an obligation growing out of agreement B, it cannot be enforced. The company cannot be bound by the private agreement B, and should not be by any injunction which seeks to enforce it.

Both the order granting the injunction and the order refusing the motion to dissolve it will be reversed.

Reversed.


author: Mr. Justice Barnes Mr. Presiding Justice Clark

text:
    J. W. Sutton, Defendant in Error, v. Chicago Railways Company, Plaintiff in Error.
    Gen. No. 17,152.
    1. Attorney and client—liability of defendant settling direct with client. Where an attorney contracts with his client to receive as his fea one-half of the amount that should he recovered after suit brought, and the defendant, having notice of the attorney’s claim under the Lien Law, settles direct with the client, contracting to pay his attorneys’ fees, the defendant is liable to the attorney for only one-half of the amount paid his client.
    2. Attorney and client—when attorney bound by statement of claim against defendant. Where in a fourth class case in the Municipal Court of Chicago for fees an attorney sues a defendant who settled direct with his client, he is bound by what is contained 4n his statement 'of claim as to nature of the liability.
    3. Attorney and client—when evidence of reasonableness of fee is inadmissible. Where an attorney, having a contingent fee contract with his client, sues a defendant, who made a direct settlement with the client, as liable under the Attorney’s Lien Law, and relies upon his contract with his client, evidence of what is a reasonable fee for services is outside the issues of the case. •
    Clark, P. J., dissenting.
    Error to the Municipal Court of Chicago; the Hon. William H. Dietrich, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and judgment here on rehearing.
    Opinion filed November 12, 1912.
    John A. Bose and Frank L. Kriete, for plaintiff in error; John B. Guilliams and W. W. Gurley, of counsel.
    J. W. Sutton, defendant in error, pro se.

   Mr. Justice Barnes

delivered the opinion of the court.

Defendant in error was attorney for one Joseph Speicher in a suit brought by the latter against plaintiff in error to recover for personal injuries. He made a contract with his client to receive as his fee one half of the amount that should be recovered after commencement of the suit. The company, through its attorney, without his knowledge, settled with Speicher for $325 and $40 additional for his physician, and at the same time gave him the following writing:

“In consideration of your settling your case against the Chicago Railways Company for Three Hundred Twenty-five ($325) Dollars, I hereby agree to see that the Chicago Railways Company pays your attorney, J. W. Sutton, a reasonable fee, whether on account of your written contract with him, or otherwise earned by him.
“Yours very truly,
“J. R. G-hilliams,
“Atty. for C. Rys. Co.”

This suit was originally brought against said Speicher, and the statement of claim filed was for services rendered by plaintiff, Sutton, on a contract entered into between them. Later, the company was made a party and upon a ruling for a more specific bill of particulars, plaintiff amended his statement of claim by adding that it was against the company for “services performed for Joseph Speicher, one of the defendants herein, who entered into a contract with the plaintiff to pay the plaintiff one-half of any amount recovered in a certain claim of said Speicher against said Chicago Railway Company,” etc., and setting up the fact of said settlement and his giving notice of lien under the attorneys’ lien act. The company’s defense was that it was not informed of the contract and called for strict proof thereof. The case was heard by the court without a jury, and a finding and judgment was entered for plaintiff for $365.

The company admits its liability under said lien law for one-half of $365, but for no more, and error is assigned in the refusal of the court not only to find as a fact, but to hold as law that plaintiff is entitled to recover but one-half of the amount paid to said Speicher, that is $182.50. We think the point is well taken.

It was held in Walter Cabinet Co. v. Russell, 250 Ill. 416, in a fourth class case in the Municipal Court that “while the formalities of pleading have been abolished by statute, it is still the law in the Municipal Court, as in other courts, that a party is limited, in his evidence, to the claim he has made;” and, “the issue is made by the statement of claim, and the evidence must be limited by that statement.” It is apparent that plaintiff sought recovery from Speicher on the latter’s contract, and from the company under the attorneys’ lien law, and the evidence adduced was upon that theory, consisting as it did of proof of plaintiff’s contract with Speicher and of said settlement, and of notice to the-company of his claim under the attorneys’ lien law, the notice setting forth said contract and claim to any money or property that might be recovered by Speicher. Plaintiff also testified that a reasonable fee for his services was $365, but, as before stated, his statement of claim against the company was based upon said law, which gives the attorney a lien for a reasonable fee, only in the absence of an agreement between him and his client. But as there was an agreement, and he relied upon it in both his notice and claim, the question of reasonable fee was outside of the issues of the case. This was manifestly plaintiff’s own theory of the case when begun, for his ad damnum limited the recovery to $200. Not until eleven days after the hearing, while the case was still under advisement, did he ask and get leave to increase the same to $400; at the same time he dismissed the case as to Speicher, but the issues of the case were not thereby changed. His claim against the company was still under the lien law, and the only thing mentioned in the statute to which it could attach was not a verdict, judgment or decree, but money recovered on account of such suit.

It was held in Standidge v. Chicago Railways Co., 254 Ill. 524, that the word “recovered” is used in said act in the sense of “received.” All his client received from the company was $365. The fact that the company agreed to assume Speicher’s liability to pay Sutton did not enlarge the latter’s rights under his contract with Speicher. What he might have recovered on the company’s contract with Speicher is a different proposition not within the issues. Had the suit proceeded against Speicher alone on his contract, it is plain that plaintiff could have recovered from him only $182.50—one-half of the amount actually received by him. He certainly could not recover from Speicher on the company’s unfulfilled promise to pay his attorney. And when he proceeded against the company alone, it was upon the statutory lien and not on its separate contract for his benefit.

The statute contemplates that the attorney’s lien shall be only for the amount he is entitled to recover from his client, and it follows that under it he can recover no more from the company than he could from his client. The agreement with the company was not to pay Speicher anything more than $365, but that it would in addition thereto assume his liability to his attorney. Speicher, however, would still be liable for the $182.50, if the company did not or, for any reason, could not carry out its promise. As stated in a like case (Schmitz v. South Covington & C. St. Ry. Co., 131 Ky. 207): “We are unable to understand how he can require a third party to pay him more than he could have collected from his client, as in the settlement the company only undertook to pay to the attorney whatever his client under the agreement was liable for. * * * The amount the attorney is entitled to receive is absolutely fixed by the amount paid to the client. If the attorney receives one-half the amount his client receives, it does not concern him whether he is paid that amount by his client or by some other person.”

See also Pilkington v. Brooklyn Heights Ry. Co., 49 App. Div. (N. Y.) 22, and Neu v. Brooklyn Heights Ry. Co., 113 App. Div. (N. Y.) 446.

In onr judgment, therefore, the court erred in not folding as law the proposition aforesaid submitted to it. But as the error affects the amount only and not the liability, the judgment will be reversed and judgment will be entered here against plaintiff in error for the sum of $182.50, the costs here to be paid by defendant in error.

Reversed and judgment here.

Mr. Presiding Justice Clark

dissenting.

The attorney’s lien law provides that “attorneys at law shall have a lien on all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients,” etc.

I do not think that the case of Standidge v. Chicago Railways Co., supra, applies. In that case there was no agreement by the Railways Company to pay the attorney’s fees, as in the case before us.

The claim of Speicher cannot be said to have been settled until the attorney’s fees have been paid. When the judgment now being entered in this court is paid the Railways Company will have paid in settlement of the claim of Speicher $547.50, two-thirds to Speicher and one-third to his attorney. The attorney’s .lien, however, applied to the whole claim for damages, and not to a part of it. The Railways Company, having undertaken to carry out Speicher’s contract with his attorney, which provided that Speicher and his attorney should receive each an equal amount, will not have done so, in my opinion, unless it pay the attorney $365. Under the circumstances if settlement of the claim had been made with the attorney, undoubtedly the amount to be paid would have been $730. By disregarding the attorney and settling direct with Speicher, the Railways Company will have saved $182.50 at the expense of Sutton, the defendant in error, as the lien law and contract of settlement are construed in the majority opinion.

In Curtis v. Metropolitan St. Ry. Co., 125 Mo. App. 369, the court had a similar question before it, and took the view expressed in this dissenting opinion.

I think the judgment should be affirmed.


text:
    Fritz Koelling et al., Appellees, v. Henry Wachsning, Appellant.
    Gen. No. 17,435.
    1. Appeals and errors—errors not argued are waived. Where various errors are assigned and only certain ones are argued, the others are waived and will not be considered.
    2. Estoppel—surety estopped to deny recitals in appeal bond. In an action against a surety on an appeal bond, the defendant is estopped to question by special pleas the validity of the judgment the existence of which is admitted by recitals in the bond, and a demurrer is properly sustained.
    3. Appeals and errors—dismissal of appeal equivalent to affirmance. In an action against a surety on an appeal bond, where the record discloses that the appeal was dismissed by the supreme court, there is a technical affirmance of the judgment which entitles the party to claim a forfeiture of the bond and have his action therefor, even though the appeal was dismissed on appellant’s own motion and without prejudice.
    4. 'Appeals and errors—liability on appeal bond. Where an appeal is dismissed on motion of appellant, the obligor on appeal bond cannot contend that the appeal is a nullity and thus question the recital in the bond that an appeal was obtained.
    5. Appeals and errors—obligor in appeal bond cannot question finality of order appealed from. In an action on an appeal bond, the obligor cannot question the finality of the order appealed from, dismissing the bill as to part of defendants, or the jurisdiction of court appealed to.
    6. Appeals and errors—consideration for appeal bond. In an action on an appeal bond, an obligor cannot plead lack of consideration, since the filing of the bond operated to stay execution of judgment.
    7. Appeals and ebbobs—prosecution for delay. An appeal which simply asks for a consideration of familiar and well-settled principles of law is within the statute authorizing the addition of ten per cent, to the amount of the judgment if the court is of the opinion it has been prosecuted for delay.
    Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 12, 1912.
    O’Donnell & O’Donnell, for appellant.
    James A. Peterson, for appellees.
   Mr. Justice Barnes

delivered the opinion of the court.

This was a suit against a surety on an appeal bond, the validity of which and of the judgment appealed from defendant sought to question by special pleas to which demurrers were sustained. Various errors are assigned, but as none are argued except such as relate to the ruling sustaining said demurrers, the others are waived and will not be considered. Wabash, St. L. & P. R. Co. v. McDougal, 113 Ill. 603; Keyes v. Kimmel, 186 Ill. 109.

The defendant could not question by plea the validity of a judgment, the existence of which was admitted by recitals in the bond he executed and which were set out in the declaration. “It is familiar law,” says the court in Harding v. Kuessner, 172 Ill. 125, “the obligors in an appeal bond are estopped to deny the recitals of the bond.” In such a case the principle of estoppel is clearly applicable and rightly insisted on by demurrer. Smith v. Whitaker, 11 Ill. 417; McCarthy v. Chimney Construction Co., 219 Ill. 616.

The record discloses that the appeal was dismissed by the Supreme Court. The dismissal of an appeal has been held to be equivalent to a technical affirmance of the judgment appealed from so as to entitle the party to claim a forfeiture of the bond and have his action therefor. Sutherland v. Phelps, 22 Ill. 92. That the appeal was dismissed on appellant’s own motion and “without prejudice,” does not present a state of facts calling for a different conclusion.

Nor can the obligor be heard to say that the appeal is a nullity and thus question the truth of the recital in the bond that the appeal was obtained. He is bound by such recital. Meserve v. Clark, 115 Ill. 580. It is evident, too, that he cannot question in a collateral proceeding like this the finality of the order appealed from dismissing the bill as to part of the defendants thereto, or whether the Supreme Court had jurisdiction thereof.

Nor can he plead a want of consideration for the bond, inasmuch as the filing of it operated to stay an execution of a judgment for damages sustained in procuring a dissolution of an injunction granted in the proceeding. “The bond was voluntarily executed. It was executed in consideration of the appeal, and the effect of the appeal was to stay proceedings on the judgment. This was a sufficient legal consideration.” Mix v. People, 86 Ill. 329; George v. Bischoff, 68 Ill. 236.

It is urged that this appeal is a vexatious one and within the intendment of the statute authorizing the addition of ten per cent, to the amount of the judgment, if the court is of the opinion that the appeal has been prosecuted for delay.

We fail to see any excuse for an appeal which in effect simply asks for a reconsideration of familiar and well settled principles of law. The judgment below for $251.12 and costs will be affirmed, and $25.11, being ten per cent, thereof, will be added to said judgment for vexatious delay.

Affirmed.


text:
    John F. Devine, Administrator, Appellee, v. Chicago & Calumet River Railroad Company, Appellant.
    Gen. No. 17,478.
    1. Federal safety appliance acts—Apply to switch engine in yards of foundry. A railway engine used for completing deliveries from trunk lines to a foundry, is used on a railroad engaged in interstate commerce, and comes within the purview of the federal safety appliance acts, even though also used as a switch engine in the foundry yards.
    2. State safety appliance act—applies to switch engine in yards of foundry. A railway engine used for completing deliveries of freight shipped from points within the state, is engaged in intrastate commerce and subject to the state safety appliance act, even though also used as a switch engine in the foundry yards.
    3. Safety appliance acts—broad construction. In an action for death of plaintiff’s intestate caused by injuries received as a switchman, the safety appliance act should be given a broad construction so that its purpose will not be defeated.
    4. Safety appliance acts'—proximate cause. In an action for death of plaintiff’s intestate, it is a question for the jury as to whether a defective coupler used in violation of the state and federal acts is the proximate cause of the deceased’s injury and death.
    5. Appeals and errors—harmless error. When the trial judge has a conference in his chambers with attorney for plaintiff regarding instructions before marking them, although defendant’s attorneys are excluded, no injury results to defendant where all questions raised by the instructions were saved by exceptions.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion modified and refiled December 3, 1912.
    Frank M. Cox and E. J. Fellingham, for appellant; Andrew E. Sheriff, of counsel.
    James C. McShane, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff recovered a judgment of $10,000 for damages resulting from the death of plaintiff’s intestate, caused by injuries received while working for defendant as switchman. The case was submitted to a jury upon two counts of the declaration only, one of which charged a violation of the State railroad safety appliance act, and the other a violation of the Federal railroad safety appliance act—in that the defendant used upon its railroad in moving traffic a locomotive engine equipped with an automatic coupler in such inoperative condition that it could not be uncoupled from the side of the engine, and necessitated the switch-man’s going between the ends of the engine and the car from which it was to be uncoupled. Both counts alleged that the deceased was required to and did go and ride between.the engine and the car for the purpose of uncoupling them, and by reason of the inoperative condition of the coupling appliance was injured while in such position at the time that the engine ran off the track.

By special pleas defendant denied that it was “at the time,” etc., a common carrier engaged in moving traffic upon its railroad between points in the State of Illinois (as charged in one count), or a common carrier by railroad, and as such engaged upon, by or in connection with its said railroad in intrastate commerce (as charged in the other count).

The questions for consideration arise upon the following state of facts: Deceased, a switchman in defendant’s employ, was riding upon the front footboard of defendant’s locomotive engine for the purpose of uncoupling it from three freight cars which the engine was pushing ahead of it in making what is called a “kicking” switch. The engine was derailed at or just after it passed over a certain frog in switching to a stub switch track within the yards of the Western Steel Car & Foundry Company at Hegewisch, Illinois, and deceased was found immediately after the accident with his feet caught and crushed between the foot-board and the ground, and the injuries he sustained resulted in his death about six months later.

At the time of the accident, the engine was switching from one part of the yard to another cars containing waste material from the company’s plant, which was to be unloaded in another part of the yard. The tracks in question were part of a system of tracks within said yard owned by the foundry company, and were connected with tracks outside of the plant owned and used by defendant for receiving cars from and delivering them to certain trunk railroad lines engaged in both state and interstate commerce. Cars from said trunk lines containing freight consigned to the foundry company and two or three other industrial companies were delivered on these outside tracks for delivery by defendant to said companies, and were hauled by its engine to their respective plants, those for said foundry company being hauled into its enclosed yards; and defendant received its compensation therefor from said trunk lines, and thus participated in the freight rate on the cars thus delivered. Defendant also received compensation from the foundry company under a special agreement for hauling and switching cars from one part of its plant to another, including those used in transferring its waste material as aforesaid.

Defendant operated two locomotive engines, only one of which was actually in use at the time of the accident, but it was used for completing deliveries from trunk lines as aforesaid and returning the empty cars thereto, as well as for switching within the enclosure under its agreement with said foundry company.

Upon this state of facts, appellants’ contentions are, (1) that the switching at the time of the accident was not in anywise connected with either state or inter state commerce; (2) that the negligence charged was not the proximate cause of the injury.

Under the first contention there is nothing new for consideration except the special state of facts to which the law is to be applied. Since appellant’s brief was filed herein, the Supreme Court of the United States, in Southern Ry. Co. v. United States, 222 U. S. 20, has given construction to the safety appliance acts of Congress (27 Stat. 531, c. 196; 32 Stat. 943, c. 976), which renders it unnecessary to consider at length many of the points discussed by appellant. It was there held that “the original act as enlarged by the amendatory one is intended to embrace all locomotives, cars and similar vehicles used on any railroad which is a highway of interstate commerce,” and the court added, “without regard to the class of traffic which the cars are moving.”

It was urged there, as it is here, that the true test of the application of the words, “on any railroad engaged” (found in the first clause of the amendatory act), to a locomotive, car or similar vehicle would be, as it was under the original act, the use of the vehicle in moving interstate traffic, but the court held that its true test, “is the use of the vehicle on a railroad which is a highway of interstate commerce, and not its use in moving interstate traffic.”

Inasmuch as the locomotive engine in the case at bar was used to complete deliveries for several railroads conceded to be engaged in interstate commerce, we think, under the reasoning of said decision, it came within the purview of the federal safety appliance acts, and that it is immaterial what was the character of the traffic or nature of the work at the time of the accident, provided the locomotive engine was one which was generally and customarily used and kept in readiness for. use “ on a railroad engaged in interstate commerce.”

Can the locomotive engine be said to have been used on a highway of interstate commerce 1 The freight customarily hauled by said engine to and from defendant’s outside tracks, connecting as aforesaid with several trunk lines, was consigned and shipped over said lines in interstate commerce in one continuous passage. In the United States v. Colorado & N. W. R. Co., 85 C. C. A. 27,157 Fed. 321, where a short and narrow gauge railroad, wholly within the state of Colorado, hauled in its train a car of an independent express company which carried express matter that came from without the state, the court said:

“Every part of every transportation of articles of commerce in a continuous passage from an inception in one state to a prescribed destination in another, is a transaction of interstate commerce. * * * Their transportation never ceases to be a transaction of interstate commerce from its inception in one state until the delivery of the goods at their prescribed destinations in another, and every one who participates in it, who carries the goods through any part of their continuous passage, unavoidably engages in interstate commerce. ’ ’

Several decisions in support of such proposition are cited by the court and need not here be referred to.

In Union Stock Yards Co. v. United States, 94 C. C. A. 626, it was held that a stock yards company which maintained and used railroad tracks extending from its sheds or pens to a transfer track connected with the tracks of several railroad companies engaged in interstate commerce, and which received several loaded ears from and returned empty cars to said transfer track for compensation from said companies for such service, was a common carrier engaged in interstate commerce, and that the carriage of these shipments from the transfer track to the sheds or pens, and vice versa, was a part of their transit between their points of origin and destination. To the same effect see Pacific Coast R. Co. v. United States, 98 C. C. A. 31; Belt R. Co. of Chicago v. United States, 93 C. C. A. 666.

On the question of whether defendant was engaged in intrastate traffic so as to be amenable to the safety appliance act of this state, we think that inasmuch as it appeared from the evidence that freight and coal were in the same manner shipped into the foundry company from points within the state and its manufactured articles were in like manner moved and delivered on consignment to points within the state, defendant, by the same reasoning must be said to have been engaged as a common carrier in intrastate as well as interstate commerce. There was no error, therefore, in admitting the evidence and giving' the instructions which related to the count charging a violation of the state safety appliance act.

In Schlemmer v. Buffalo R. & P. R. Co., 205 U. S. 1, the court said the phrase, “used in moving interstate commerce,” occurring in the federal act, should not be taken in a narrow sense. We think, to effect the real purposes of the state act, the same broad construction should be given to the phrase, “engaged in moving traffic by railroad between points in this state,” occurring in section 1. The second section makes it unlawful for “any such common carrier to haul or permit to be hauled, or used on its line, any locomotive,” etc., “not equipped with couplers,” etc. The act is broad enough to apply to the locomotive, etc., of such a road regardless of the precise nature of the business it may be engaged in at the time of the accident. The purpose of the act is to secure the safety of a railroad employee engaged upon such locomotive, and such purpose would be defeated by the narrow construction of the state act contended for by appellant in this case, which would limit the application of the act to such locomotives only when they are actually employed in a movement which meets the technical definition of intrastate commerce.

Was the defective coupler the proximate cause of the deceased’s injury and death? In Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, it was said:

“What is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it.” See, also, North Chicago St. R. Co. v. Dudgeon, 184 Ill. 477; Pullman Palace-Car Co. v. Laack, 143 Ill. 242; Illinois Cent. R. Co. v. Siler, 229 Ill. 390.

Both the state and federal acts make it unlawful for the common carrier to haul or use on its line any locomotive, etc., “not equipped with couplers, coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” The evidence tended to show that in the switching operations engaged in at the time of the accident, deceased was required to stand on the foot-board in question in order to couple or uncouple the cars; that to raise the coupling pin to uncouple the car from the engine in the particular movement being made, it was necessary for him to go between the engine and the car and take hold of a chain to raise it; that there was no way to keep the pin up when the car was uncoupled, and that he had to hold it up until the engine and car separated; and that there was evidence tending to show that there were appliances that would hold the pin up until the engine and car separated without the necessity of the switchman’s riding between the engine and the car. We think, therefore, it was a question of fact properly submitted to the jury to determine whether, under such circumstances, deceased having been injured in the course of a switching movement, which required him during some portion of it thus to go between the cars for the purpose of effecting an uncoupling, the use of a defective coupler requiring him to do so was the proximate cause of the injury. Error is claimed in the refusal of the court to give certain instructions asked for by the defendant relating to proximate cause. We think the jury was properly instructed on the subject, and that no error was committed in the refusal of said instructions, and what we have already said respecting appellant’s contentions obviates the necessity of considering specifically its exceptions to the giving and refusing of other instructions.

It is urged that deceased might have pulled out the pin before the car started and put himself in a different position off or on the engine. The questions of assumed risk and contributory negligence are not involved in this case. Luken v. Lake Shore & M. S. R. Co., 248 Ill. 377.

Counsel for appellant complain that the trial judge had a conference with the attorney for plaintiff in his chambers in reference to the instructions before marking them, and that defendant’s attorneys were barred from said conference. No injury to defendant resulted therefrom inasmuch as all questions raised by the instructions were saved by the exceptions duly taken to the giving and refusing them, with respect to which we find no reversible error.

The judgment will be affirmed.

Affirmed.


text:
    In re Estate of Elva G. Busch, Deceased (Claim of Johanna Leist). On Appeal of Johanna Leist, Appellant, v. William H. Busch, Executor, Appellee.
    Gen. No. 17,507.
    1. Executors and administrators—when instructions not misleading in suit for services and harmless. Where a nurse sues the estate of a married woman for services rendered and there is no evidence of an express contract or hiring by the deceased and there is evidence of a hiring and payments by deceased’s husband, and that deceased had contemplated making a bequest in the nurse’s favor, hut none was made, an instruction that declarations of deceased as to disposition of her property after death might he disregarded, another Stating the requisite formalities for the execution of a will, and another that no recovery could he had if the plaintiff was employed and paid by the husband, are not misleading and in any event harmless.
    2. Executors and administrators—when booh of account not admissible in action against estate. In an action by a nurse against an estate for services rendered the decedent, the plaintiff’s book of account showing her entries of monthly charges is not admissible in evidence.
    3. Appeals and errors—when refusal to permit reiteration of evidence is harmless error. When a favorable answer to a question, to which an objection is sustained, would be a reiteration of the witness’ previous testimony on the subject, the error in the ruling, if any, is harmless.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 12, 1912.
    Mayer, Meyer, Austrian & Platt, for appellant.
    Josiah Cratty, for appellee; William B. Jarvis, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

Johanna Leist filed in the Probate Court a claim for $2,890 against the estate of Elva Gr. Busch, deceased, for services rendered as masseuse and nurse to deceased. The charges made were at the rate of $10 a day for 118 days between September 28, 1905, and January 23, 1906, and at the rate of $15 a day for 114 days from January 24, 1906, to May 19, 1906, the date of decedent’s death.

The claim was dismissed in the Probate Court and appeal was taken to the Circuit Court, where judgment was entered in favor of the estate, from which appeal was taken to this court.

It is claimed that certain instructions given were misleading and not based upon evidence in the case. One told the jury that they might disregard any declaration of Mrs. Busch in regard to the disposition of her property that she contemplated should be made after death. Another stated the requisite formalities in the execution of a will, and another that appellant could not recover from the estate for services rendered Mrs. Busch, the deceased, if they believed from the evidence that appellant was employed by her husband, Mr. Busch, and paid by him.

We think there was no error in giving any one of said instructions, and that if there was, it was harmless in view of the insufficiency of the evidence to support appellant’s claim. The court might well have directed a verdict without submission of the case to the jury. There was no evidence of an express contract, and none of a hiring by deceased. The evidence tended to show the hiring was by Mr. Busch, who paid her regularly each month by check the precise amount which she had charged for such month in her alleged book of account. Against objection properly made in behalf of the estate, her alleged book of account, in which she entered as charges for her services $25 for each month prior to January 1,1906, and $100 for each month thereafter, was received in evidence. Mr. Busch’s checks for the respective amounts, given at the end of each month’s service or at the beginning of the next, were acknowledged by her and received in evidence. Not until two years afterwards did she make or present any claim for additional compensation for her services. She did speak to him about the so-called bequest, gift or present which Mrs. Busch in her final illness had contemplated making to her. But none such was ever made by will or otherwise. The evidence tended to show that both Mr. and Mrs. Busch had spoken about it. Undoubtedly she expected something by way of a bequest or gift, but what was said about it furnished no evidence of a contractual obligation to pay appellant compensation in addition to what she had been regularly paid every month during her employ. The instructions, therefore, applied to the evidence received, and, in any event, in view of the record, could not have misled the jury.

When on cross-examination appellant identified said checks and said that she had received the money on them and that they were for the respective items shown in her book, appellee offered them in evidence without objection. On redirect examination she testified that notations like “month of April” and “month of May” on certain checks were not there when she received them; and objections were sustained to her counsel’s questions as to whether said checks paid her for her entire services for particular months. Complaint is made of such ruling. At best a favorable answer to these questions would have been a mere reiteration of her previous testimony on the subject, and the error in the ruling, if any, was not harmful.

The judgment is affirmed.

Affirmed.


author: Mr. Justice F. A. Smith

text:
    O. H. Sample, Defendant in Error, v. R. B. Farson, Plaintiff in Error.
    Gen. No. 17,302.
    1. Municipal court—affidavit of defense setting up proper subject of recoupment is improperly stricken. Where an affidavit of defense to an action on a promissory note sets up that plaintiff and defendant mutually contracted to pay each other one-half of the profits of each other’s business and to make settlements, that the agreement was not to constitute a partnership and that the note sued on was given in evidence of a settlement and accounting, but that since then large profits exceeding the amount of the note have been made by the plaintiff who refuses to account, the demand may he recouped and the affidavit is improperly stricken as insufficient.
    2. Municipal court—affidavit of merits disclosing cross accounts may be sufficient. The fact that an affidavit of defense discloses and renders necessary to the trial of the case cross accounts between the parties does not deprive a court of law of jurisdiction.
    3. Set-off and counterclaim—«Aero refusal to divide profits may be adjusted by recoupment. Where two dealers mutually contract to pay each other one-half of the net profits of their respective businesses and to make settlements when demanded, if one gives a note in evidence of his accounting and settlement and the other subsequently refuses to account for the profits, in an action on the note the mutual demands may be adjusted by recoupment.

      4. Partnership—when agreement as to division of profits does not constitute partnership. Where two dealers mutually contract to pay each other one-half of the net profits of their respective businesses, a clause that the agreement should not be construed as a partnership controls, and as between themselves the agreement is not one of partnership.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 12, 1912.
    Parker & Hagan, for plaintiff in error.
    Harold L. Ickes, for defendant in error; Earl J. Smith, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Defendant in error, Sample, brought a suit of the fourth class in the Municipal Court against plaintiff in error, Farson, on a promissory note. The defendant, Farson, filed two successive affidavits of defense, each of which was stricken from the files as insufficient. By leave of court he then filed an amended affidavit of defense on February 11, 1911, averring that he believed he had a good defense upon the merits to the whole of the plaintiff’s demand, stating the nature of the defense as follows:

“From about the first of May, 1909, and until after the time of the giving of the note sued upon, the plaintiff conducted a lumber business in the City of Chicago under the name of ‘O. H. Sample Lumber Co.,’ and at like times the defendant, in like manner, conducted a certain other lumber business in the City of Chicago under the name of ‘E. B. Farson; ’ that the said business of the plaintiff and the said business of the defendant were at all times absolutely separate and distinct, and that neither the plaintiff nor the defendant had at any time any voice or control in the conduct of the business of the other; that on or about May 12, 1909, the plaintiff entered into a verbal contract with the defendant, whereby in consideration that the defendant would and did agree to pay to the plaintiff one-half of the net profits of the defendant’s said business, that the plaintiff would in like manner pay to the defendant one-half of the net profits of the plaintiff’s said business, and that settlements should be had from time to time as requested by either party, but that the agreement should not be construed as a partnership in any sense; that pursuant to such agreement settlements were to be made from time to time between said parties, and the note now sued upon by the plaintiff was given in evidence of a part of the amount found upon one of said accountings to be due to the plaintiff from the defendant as the plaintiff’s fifty per cent, share of the profits of the defendant’s business, for the period covered by such accounting, a note having been given in like manner by the plaintiff to the defendant at the same time in evidence of the amount found to be due to the defendant as his fifty per cent, share of the plaintiff’s business for the period covered by such accounting; that since the giving of said note large profits have been made by the plaintiff in his said business and demands for a settlement have been repeatedly made upon the plaintiff by the defendant; that the amount due to the defendant from the plaintiff at the time of the commencement of the plaintiff’s suit, settlement whereof had been demanded by the defendant, as aforesaid, exceeded, and now exceeds the amount of said note and the amount of any other indebtedness owed by the defendant to the plaintiff.”

The trial court held that this affidavit also was insufficient, and struck the affidavit “out” and entered judgment on the plaintiff’s note as by default.

The question thus presented is whether the amended affidavit of defense stated matters which would be admissible in defense of the claim on the note.

The affidavit of defense shows that the plaintiff and defendant had made an agreement for a division of profits of their respective businesses. They had accounted together from time to time under this agreement, and the note, on which the defendant in error, Sample, brought suit, was given on the occasion of one of these accountings as the evidence of certain allowances due the plaintiff below, Sample, out of the defendant’s business. The note represented only the plaintiff Sample’s interest in profits which had then been earned by the business of the defendant. If no such note had been given, the defendant, under the agreement, would still have owed the plaintiff the amount for which the note was given and which the note evidenced. The affidavit shows that after the accounting was had and the note given as evidence of the result, further profits accrued in the business done by the plaintiff, and under the agreement a considerable sum became due from the plaintiff, Sample, to the defendant, Farson. As to these profits earned in the plaintiff’s business no adjustment has been had and the defendant asks to recoup his interest in these profits against the plaintiff’s share in the defendant’s profits evidenced by the note.

In our opinion the two claims arise obviously from the same subject-matter, and under the well established rule mutual demands arising out of the same subject-matter may always be adjusted in one action by recoupment. Stow v. Yarwood, 14 Ill. 423, is a leading case in this state upon this subject. In that case the action was trover for the conversion of an engine and the defendant sought to recoup a claim for repair work done on the engine. The court made the identity of the subject-matter the test, even though it resulted in the recouping of a claim sounding in contract against one which arose ex delicto.

Turner v. Retter, 58 Ill. 264, was a suit for the conversion of a promissory note, and it was held that the defendant should have been allowed to recoup a claim for services rendered in collecting the note.

In Waterman v. Clark, 76 Ill. 428, the plaintiff sued on a promissory note as in the case at bar. By the defendant’s plea it appeared that before the giving of the note the parties had made a contract whereby plaintiff undertook to care for certain cattle belonging to the defendant. The note sued on was given to discharge the plaintiff’s lien for agistment, and the defendant sought to recoup against the note a claim for damages suffered to the cattle while in the plaintiff’s possession. This was held to be a proper matter for recoupment, both claims arising out of the contract for agistment. Bross v. Cairo & V. R. Co., 9 Ill. App. 363 ; Cunnea v. Williams, 11 Ill. App. 72; Stubblefield v. Soule, 21 Ill. App. 154; Beam v. Cleveland, C., C. & St. L. R. Co., 97 Ill. App. 24, illustrate the' doctrine.

The agreement set up in the affidavit of defense was not a partnership agreement as between the parties. The parties expressly stipulated that the agreement should not be construed as a partnership in any sense. As between the parties to the agreement, this stipulation is controlling as expressing the intent of the parties. Stevens v. Faucet, 24 Ill. 483.

The fact that the parties were to share profits as contemplated by the agreement in question, eliminating from consideration for the present the clause expressly declaring the intention of the parties not to form a partnership, would be a prima facie indication of the intention of the parties from which a partnership might be inferred; but this is rebutted by the clause referred to, and that clause must be given full effect as between the parties, and constitutes a controlling element in the contract as to the . intention of the parties between themselves. Niehoff v. Dudley, 40 Ill. 406.

The fact that the affidavit of merits discloses and renders necessary to the trial of the case cross accounts between the parties does not deprive a court of law of jurisdiction. The familiar rule is that where an adequate legal remedy exists a court of equity will not assume jurisdiction. Even if relief may be had in equity, it is not a sound objection to the jurisdiction at law. “The difficulty of investigating a disputed account before a jury seems also to constitute no legal objection to this action.” 1 Chit. Pl., 116; Tomkins v. Willshear, 5 Taunt. 431; County of Cook v. Davis, 143 Ill. 151; John S. Davis’ Sons v. Fuller, 84 Ill. App. 295.

The trial court erred in “striking out” the affidavit of defense from the files and entering judgment as by default. The judgment is reversed and the cause remanded. 1

Reversed and remanded.