text:
    Mary A. Piper et al., Appellants, v. W. H. Green, Appellee.
    1. Attorney and client, § 19

      —what must be proved to hold attorney for negligence. In an action to recover damages from an attorney for alleged negligence in handling a claim of damages against a railroad company, it was incumbent upon the plaintiffs to allege and prove facts showing that they placed in defendant’s charge a valid, subsisting claim against a solvent party, and that such claim was lost by the negligence or misconduct of the defendant.
    2. Attorney and client, § 19*—when valid claim against third person not shown in action for negligence. In an action to recover damages from an attorney for alleged negligence in handling a claim of damages against a railroad company, where the plaintiffs failed to establish either the negligence claimed in the declaration, or the exercise of due care of the deceased, there was a failure to show a valid, subsisting claim which was impaired or lost by the negligence of the defendant.
    3. Carriers, § 460*—when presumption of negligence inapplicable. The presumption of negligence of a carrier arising from proof of an accident and injury to a passenger does not arise from the accident itself but from the nature of the accident and the circumstances, and where only the fact of an accident is proved with none of the surrounding circumstances, tbe doctrine of res ipsa loquitur does not apply.
    4. . Trial, § 202*—when peremptory instruction proper. If the evidence and the reasonable inferences therefrom do not tend to prove one or more of the material averments of the declaration, it is not error to give a peremptory instruction.
    Appeal from the Circuit Court of Jefferson county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 25, 1920.
    Ernest O. Dodge and W. E. Powell, for appellants.
    Oonrad Schul, Curtis Williams and Noleman & Smith, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This is an action in -case against W. H. Green, an attorney, tó recover damages resulting from his alleged negligence in handling a claim for damages against a railroad company, for the negligent killing of J. H. Piper, husband of appellant, Mary A. Piper, and father of the minor appellants, Chauncey D., Jean and Arthur Piper, who sue by Mary A. Piper their next friend. ■

The declaration in substance alleges that on January 16,1916, J. H. Piper purchased a ticket at Mt. Vernon, Illinois, from the Louisville and Nashville Eailroad Company which entitled him to transportation from Mt. Vernon to Drivers, Illinois; that while said Piper was in the -act of boarding a passenger train of said company at Mt. Vernon, and while he was stepping upon the steps of the platform of the passenger car, and while in the exercise of due care for his own safety, the railroad company, by its employees, agents and servants, negligently and carelessly started the train, without warning, and that thereby Piper was jostled and thrown under said train and received injuries from which he died; that appellee was employed as attorney to collect appellants’ claim against the railroad company for damages resulting from the death of Piper, and that he negligently failed to take the necessary steps to enforce the claim, until it was barred by the statute of limitations, whereby the claim was lost to appellants. Appellee, filed the general issue and a trial was had before the court and a jury. At the close of appellants’ evidence the court, on motion of appellee, gave a peremptory instruction directing the jury to find appellee not guilty.

The question which arises from the record in this case is whether the evidence, together with all legal" deductions to be drawn therefrom, made out a case under appellants’ declaration. If not, then it was not error for the trial court to give the instruction directing a verdict for the appellee. Justice Farmer in the case of Priest v. Dodsworth, 235 Ill. 613, said: “In a suit by a client against his attorney for damages charged to have resulted from the negligent management of business, the burden is on the plaintiff to prove the negligence charged. ‘ There is no presumption that an attorney has been guilty of a want of care, arising merely from his failure to be successful in an undertaking. On the contrary, he is always entitled to the benefit of the rule that every one is presumed to have discharged his duty, whether legal or moral, until the contrary is made to appear. In a suit against an attorney for negligence, the burden is therefore on the plaintiff to allege and prove every fact essential to establish defendant’s duty and a violation of it.’ (3 Am. & Eng. Encyc. of Law, 2nd Ed., 384.) ‘In a suit by a client against an attorney for negligence in conducting the collection of a claim, whereby the debt was lost, the burden rests on the former to allege and prove every fact essential to establish such liability. He must allege and prove that the claim was turned over to the attorney for collection, that there was a failure to collect and that this failure was due to the culpable neglect of the attorney, and that but for such negligence the debt could or would have been collected. ’ (Id. 391.) Pennington’s Ex’rs v. Yell, 11 Ark. 212, 52 Am. Dec. 262, was a suit against an attorney by a client charging him with negligently failing to collect a claim placed in his hands for collection, and it was held the charge must be affirmatively proven and that the claim was a valid, subsisting claim against a solvent party. In Greenleaf on Evidence (vol. 2, sec. 148) the author, in discussing actions by clients against attorneys for damages resulting from the attorney’s negligence in failing to collect a claim placed in his hands for that purpose, says: ‘In short, the plaintiff has to show that he had a valid claim, which has been impaired or lost by the negligence or misconduct of the defendant.’ ” Under this statement of the law which is applicable to the issues made by the pleadings in this ease, it was incumbent upon appellants to allege and prove facts showing that they placed in appellee’s charge a valid, subsisting claim against a solvent party, and that such claim was lost by the negligence or misconduct of appellee. These were material elements, necessary to be alleged and proved. The allegation of facts showing a valid and existing claim are that while the deceased was in the act of boarding the train and while he was stepping upon the steps of the platform of the car, and while in the exercise of due ea.re for his own safety, the train was negligently started without warning, whereby he was jostled and thrown under the train and received injuries from which he died.

To sustain these allegations it was necessary for the proofs to establish that the injury was occasioned by the railroad’s negligence and also while deceased was exercising due care for his own safety. The only evidence of the circumstances immediately surrounding the accident was the testimony of two colored women, mother a.nd daughter, who testified that the deceased assisted them to board the train by placing their hand baggage on the platform of the coach; that they boarded the train ahead of deceased; that he was starting up the steps as they entered the coach, and that just after they entered the coach and had probably reached the third seat the train started with no unusual jerk; that they heard some one call just as the train started; that the train was stopped and deceased was found on the tracks with his body badly mangled. The evidence fails to show what caused deceased to fall beneath the train, or what he was doing at the time he fell. It must be conceded it fails to establish either the negligence charged in the declaration, or the exercise of due care for his own safety. Having failed by the proofs to establish either of these two material matters, appellants failed to show they had a “valid, subsisting claim. ’ ’ Indeed, it is not seriously contended by attorneys for appellants that the evidence does establish the negligence charged, but it is insisted that by showing the purchase of the ticket, the attempt to board the train and the injury, appellants made a prima facie case, the doctrine of res ipsa loquitur applied, and therefore the case should have been submitted to the jury.

The claim that mere proof of an accident resulting in injury to a passenger, while in the exercise of due ca.re, raises a presumption that the carrier has been negligent, is too broad. “The presumption arises, however, from the nature of the accident and the circumstances and not from the fact of the accident itself.” (Barnes v. Danville St. Railway & Light Co., 235 Ill. 566.) Only the fact of the accident in the case at bar was shown.- None of the circumstances surrounding it were proven. Consequently it cannot be held that the doctrine of res ipsa loquitur applies to this state of the proof. There is another reason why that doctrine does not apply to this case. In the case of McFadden v. Chicago, R. I. & P. Ry. Co., 149 Ill. App. 298, the court quoted with approval the following language from 3 Thompson on Negligence, see. 2764: “Nor does the foregoing rule (res ipsa loquitur) apply where the occasion of the hurt of the passenger was an active voluntary movement on his part, combined with some alleged deficiency in the carrier’s means of transportation or accommodation, and the reason is that in such cases it is necessary to consider whether there may not have been contributory negligence on the part of the passenger. It is only in respect to those accidents which happen to the passenger while he passively trusts himself to the safety of the earner’s means of transportation, or to the skill, diligénce and care of his servants, that the rule applies.” In that case the court held that one fact which prevented the rule of res ipsa loquitur from applying was that the person suing was injured while in the act of the voluntary movement of alighting from the train, and the carrier was no longer her exclusive bailee. In the present case the accident occurred while the deceased was engaged in the voluntary movement of boarding the train. He had not yet “passively” intrusted himself to the carrier’s means of transportation or accommodation, and the carrier had not yet become his “exclusive bailee.”

Again we have seen it was necessary for appellants to allege and prove their claim was against a solvent party. There is no allegation whatsoever in the declaration as to the solvency of the company, and no proof of any nature tending to show its solvency or insolvency. Thus the record presents this condition. The proofs fail to establish the allegations in the declaration of the facts showing the existence of a valid claim and there is neither any allegation nor proof of the solvency of the debtor. Both these elements are material. It.is a rule too well established to require citation of authorities, that if the evidence and the reasonable inferences which may be drawn therefrom do not tend to prove one or more of the material averments of the declaration, it is not error to give a peremptory instruction.

Under this rule the judgment in this case must be affirmed.

Affirmed.

Mr. Justice Eagletoh took no part in the hearing of this cause.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    George W. Huffer, Appellee, v. Thomas S. Crago and Thomas S. Crago, Trustee, Appellants.
    1. Brokers, § 69

      —when •person procuring mining rights not entitled to lien for commission. In an action to recover commissions for procuring mining rights, where it appeared that the plaintiff procured options on land for the defendant, the right of action of the plaintiff was at law for a money judgment for his services or commissions, and such plaintiff could not claim a vendor’s lien even if he owned options on the lands involved in his own name.
    2. Contracts, § 47*—what is an option. An option is a contract by which an owner of land' agrees with another person that he shall have the right to buy his property at a fixed price within a certain time.
    3. Brokers, § 70*—form of action for recovery of commission. An action to recover commissions for procuring mining rights should be brought at law, there being no showing why such action, both as to manner and final relief, would not be as efficient and adequate as an action at equity.
    4. Brokers, § 69*—when decree for sale of property erroneous in action for commission. In an action to recover commissions for procuring mining rights, a decree entitling the plaintiff' to a lien for the amount of his judgment and decreeing a sale of the mining property procured if the judgment was not paid within 30 days, was erroneous, there being no right to a lien.
    Appeal from the Circuit Court of Payette county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the Octobér term, 1919.
    Reversed and remanded.
    Opinion filed March 25, 1920.
    F. M. Grunsw and Earl J. Major, for appellants.
    Whitaker, Ward & Pugh, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

As appellee has set forth in his amended bill the facts upon which he bases his right to recover in this case, we have thought best to copy the greater part of the same. Omitting the formal parts, the bill alleges that appellee “in October, 1913, and long prior thereto was engaged in the business of procuring coal underlying the surface in Fayette and adjoining counties and also in procuring the right to mine said coal and the right to conduct mining operations under such land; and being so engaged in such business the defendant, Thomas S. Crago, who resides in the State of Pennsylvania, being desirous of procuring mining and coal lands in said county, by and through the agents and attorneys for said Thomas S. Crago, made arrangements with your orator for the procuring of said coal and mining rights; that in and by said arrangements it was agreed and understood that the said Thomas S. Crago was to pay the sum of eight ($8.00) dollars per acre for coal underlying the real estate in Fayette and adjoining counties, together with the mining rights, of which five ($5.00) dollars per acre was to be paid to the owners of the land for deeds for said coal and mining rights and the balance of three ($3.00) dollars per acre was to be paid your orator for procuring deeds from the owners of the land for said coal * and mining rights therein; the said three ($3.00) dollars per acre to be paid to your orator for his service in procuring said coal and mining rights and such expenses as he might be compelled to pay. And in accordance with such agreement and'arrangements with the agents and attorneys of the said Thomas S. Crago, your orator did, in fact, purchase a large amount of coal and mining rights underlying the surface of the real estate hereinafter described and that by reason thereof large sums became due him from the said Thomas S. Crago• that your orator procured good and valid deeds to said coal and mining rights as aforesaid in and to the above tracts of land' and in accordance with aforesaid agreement and arrangements the said deeds were delivered to the said Thomas S. Crago by and through his agent and attorney and now appear of record in the recorder’s office - in Fayette county, Illinois, and in the recorder’s office of Shelby county, Illinois; that the procuring of said coal and mining rights by your orator for the said Thomas S. Crago covered a period from October, 1913, to June, 1917; * * * that said Thomas 8. Crago after having paid a portion of the commission due youri orator finally requested that your orator, thereafter, use all the money that he received as aforesaid from the said Thomas S. Crago to pay the five ($5.00) dollars per acre to the owners of the various tracts of land and that later on the balance of three ($3.00) dollars per acre for services to your orator would be paid, giving as a reason that the said Thomas S. Crago was anxious to purchase as much coal and mining rights under the land as possible and as speedily as possible; and that relying upon such statements your orator continued to purchase said, coal and mining rights and paying out all the money he received at the rate of five ($5.00) dollars per acre therefor, keeping none of said money for his services and commission. * * * Tour orator further represents that neither at the time of the execution and delivery of said deeds as aforesaid, or at any time since, has your orator received any security of any kind, nature or description for the sum of money due him as aforesaid, or for any part thereof although the same is now due and unpaid to your orator; that after allowing to said Thomas S. Crago, as aforesaid all deductions, set-offs of whatsoever nature at the rate of three ($3.00) dollars per acre, for the above described lands there is due your orator the sum of $6,318.82 and interest thereon from the time it became due making a sum'due your orator of more than $8,000. * * * Tour orator further represents that at the time the deeds, as aforesaid, were delivered to your orator they were delivered with the express understanding and statement of your orator that he was not delivering said deeds in such a way as to be a full and complete delivery but was delivering them upon condition that his commissions, as hereinbefore mentioned, were to be fully paid and that such delivery would not be considered as full and compíete until the payment of said commissions, and said deeds were accepted by the said Thomas S. C'rago fully understanding and agreeing to such arrangement. Tour orator further represents that by reason of the foregoing facts your orator became and is entitled in equity to a lien on all the coal and mining rights and at the rate as above described for the balance of money due to your orator as aforesaid. ’ ’

Then follows a prayer for an accounting and a decree for the payment of the sum found due within a short time and for a sale of the premises in case of default in payment. Appellants filed a lengthy answer in the nature of a demurrer and answer, which need not be set out for the purposes of this opinion.

It appears from the proofs that appellee did secure deeds as alleged, running from, the owners of lands described, to appellants, conveying the coal and the right to mine the same beneath lands described in the bill. The owners of the land were paid $5 per acre, and appellee received $3 per acre. Most of the deeds ran to appellant individually, but some of them ran to him as trustee. It seems appellant did not acquire any of the lands for his own use, but for the benefit of a group of promoters or speculators, who in turn sold the mining rights thus acquired to other persons who were investors. When such coal rights were so sold, appellant would issue to his purchaser a certificate that he held, as trustee for such purchaser, the mining rights in whatever number of acres had been purchased. The money resulting from such resale was then used to purchase other mining rights. Appellee turned over all deeds to Judge Arnos Miller, an attorney of Hillsboro, Illinois, who examined the abstracts and filed the deeds for record. All money was furnished by appellant to Judge Miller, who usually paid the owners of the land, but sometimes money was turned over to appellee to pay the owners. For a time appellee received his $3 per acre as the deeds were delivered, but finally, as stated in the bill, all the money was used to purchase coal rights and appellee was to be paid later. He was, however, never paid for procuring these rights, and it is to recover this unpaid portion appellee has sued. It seems that at one time the promoters had sold more acres than appellee had secured deeds for, so he refunded $1,018.50 he had been paid, that it might be used in purchasing other lands. The court found that appellant owed appellee, including interest, the sum of $7,457.45, and that he was entitled to a lien on all the lands described in the bill for that amount. The decree directed payment of said sum within 30 days and ordered the lands sold in case of the default of such payment.

It is to be noted that there is no allegation whatsoever in the bill that appellee was the owner of the coal rights involved, or that the money sought to be recovered was a part of the purchase price. On the contrary, the theory of the bill very obviously is that appellee was to receive a “commission” of $3 per acre for procuring the mining rights. In fact, portions of the bill relating ■ to the services to be performed by appellee expressly so state. Appellee now seeks to sustain the lien decreed him by the court upon the theory that the $3 per acre due him was a part of the purchase price, for which he is entitled to a vendor’s lien, because he owned options on most of the coal rights at the time he entered into his claimed agreement or arrangement with appellant’s agent or attorney. The whole record shows, as in fact the bill alleges, that appellee was working only for a commission of $3 per acre for the coal rights procured by him. The evidence does not clearly show with whom appellee had an agreement concerning these rights, but it does fail to show that he had any contract by which he, himself, was to sell appellant any mining rights. If he has any right of action against appellant it is for a money judgment for his services or his commissions. No reason appears from the record why an action at law to recover for his services or commissions, both in respect to the final relief and the mode of obtaining it, will not be as efficient and adequate as an action in equity, and he should therefore have brought his action on the law side of the court. Even if appellee had owned options in his own name on the coal rights in all the lands, he would not be entitled to a vendor’s lien. In support of his contention that he is entitled to such a lien, appellee relies upon Beal v. Harrington, 116 Ill. 113. In that case, however, the parties who were claiming the lien were in fact the owners of the land, while the party making the deed held only the legal title. It cannot be said that the owner of an option is the owner of the land. “An option is defined to be ‘a right acquired by contract to accept or reject a present offer within a limited or reasonable time in the future. ’ (Am. & Eng. Encyc., 2nd Ed., 924.) ‘An option is a contract by which the owner of property agrees with another person that he shall have the right to buy his property at a fixed price within a certain time. He does not sell his land. He does not then agree to sell it; but be does sell something, viz.: the right or privilege to buy at the election or option of the other party. ’ * * * (Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17.) ” Raddle v. Lindemann, 151 Ill. App. 441.

In the case at bar the parties making the deeds were the owners of both the land and the legal title. Appellee was not the owner of either under his options, but was only the owner of the right to buy the title. As appellee was not entitled to the lien given him the decree is reversed and the cause remanded for such further procedure as may be consistent with the views herein expressed.

Reversed and remanded.


text:
    Loyd Bradley, Administrator, Appellee, v. Federal Life Insurance Company, Appellant.
    1'. Abatement and revival—Act of Edw. III supplanted by Survival Act. Section 123 of the Administration Act (J. & A. If 172), as to the survival of actions, has entirely supplanted Act 4, Edw. III, ch. 7, even though such latter act may have" been in force in this State at one time.
    2. Abatement and revival—when cause of action is not for injury to personalty within Survival Act. An action against an insurance company for negligence of such company’s agent in failing to forward an application for insurance and the firsí premium payment is not an action for injury to personal property, and does not survive under section 123 of the Administration Act (J. & A. If 172).
    3. Abatement and revival—when cause of action is not for personal injuries within Survival Act. An action against an insurance company for negligence of its agent in failing to forward an application for insurance and a first premium payment does not survive under section 123 of the Administration Act (J. & A. If 172), relating to the survival of actions for an injury to the person.
    4. Abatement and revival—when cause of action does not survive. Where a right of action is so entirely personal that the party in whom it exists cannot by contract place it beyond his control, it will not survive, and as a general rule assignability and survivability of causes of action are controvertible terms.
    5. Abatement and revival—when cause of action does not survive. An action against an insurance company for negligence of its agent in failing to forward an application for insurance together with the first premium payment is not assignable and consequently does not survive'.
    6. Abatement and revival, § 82

      —necessity for pleading grounds for abatement. An objection which goes merely in abatement of an action as distinguished from an objection to jurisdiction of the subject-matter must be pleaded to be available.
    7. Abatement and revival, § 87

      —waiver of matter in abatement by failure to plead. In an action against an insurance company for negligence of its agent in failing to forward an application for insurance, where the death of the applicant appears upon the face of the declaration, and the defendant files a general demurrer which is overruled and does not by plea or otherwise set up the fact of death in abatement, but only files a plea of the general issue in bar, if the death is considered as matter in abatement it is waived.
    8. Abatement and revival—when declaration on nonsurviving action fails to state a cause of action In an action against an insurance company for negligence of its agent in failing to forward an application for insurance, where the death of the applicant appears upon the face of the declaration, such declaration fails to state a cause of action and is insufficient, wherefore it is error to overrule a motion in arrest of judgment.
    9. Action—when accrues. A cause of action accrues when facts exist which authorize one party to maintain an action against another.
    Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed.
    Opinion filed March 25, 1920.
    O. A. Atkinson and Herbert & Stewart, for appellant.
    Charles E. Feirich and Otis F. Glenn, for appellee ; Loyd Bradley and Lawrence A. Glenn, of counsel.

      See Illinois Notes Digest, Volf. XI to XV, and Cumulative Quarterly, same tuple and section number,

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

   Mr. Justice Higbee

delivered the opinion of the court.

The facts out of which it is claimed appellant’s liability arises in this case are stated in the declaration which consists of two counts.

The first count alleges in substance that appellant is an insurance company engaged in the business of insuring persons against accidental injuries and death resulting therefrom and employed agents to solicit and receive applications; that on May 2, 1917, one F. Gf. Famham was an agent of appellant, duly authorized to solicit and receive applications and receive and receipt for first payments thereon on behalf of appellant and that he did then and there solicit one W. H. Fraley to make application for an accident policy to be issued by appellant; that on such solicitation said Fraley did make written application to appellant for an accident insurance policy and paid said Famham, as agent of appellant, the sum of $7 as first payment on the policy to be issued him upon such application, and that such first payment paid all sums required to k¿ep said policy in force for a period of 3 months from the date of payment; that said application was for a policy insuring said Fraley in the sum of $5,000 against accidental injuries causing his death; that at the time of making such application said Fraley was a desirable and acceptable risk for accident insurance; that it became and was the duty of said Famham, upon receipt of such application, to forward same together with the said first payment óf $7 to the head office of appellant'in order that the same might be promptly passed upon and a policy issued him, or the application rejected within a reasonable time; that said agent, notwithstanding his duty in that regard, negligently and fraudulently failed and neglected to forward said application and payment, and as a result thereof no policy was ever issued to said Fraley; that said Fraley was struck by a railroad train and received injuries from which he died on June 29, 1917, and that such injuries and death were effected solely, directly and independently of all other causes through external, violent and purely accidental means and were such injuries as would have been insured against in and by said policy so applied for by said Fraley, and upon' which said first payment was made by him, if the same had been forwarded to appellant promptly by said agent, as it was his duty to do, to the damage of app ellee as administrator as aforesaid of $6,000. The second count alleges substantially the same facts as the first, except instead of alleging negligence on the part of the agent, it alleges negligence on the part of appellant in failing to take any action upon the application.

To this declaration appellant filed a general demurrer, which was overruled. It then filed a plea of general issue and two special pleas. The first special plea alleged that appellee was not entitled to recover any amount save the first payment of $7, and that said amount had been tendered him. The second special plea alleged Fraley’s failure to comply with the following provision of the receipt issued him for his application and first payment, viz.: “Applicants will please notify the company at Chicago, Illinois, should the policy hot be received within ten days from date hereof,” and relies upon such failure on the part of deceased as a defense. A general demurrer was sustained to both these special pleas, so that the case was tried on the declaration and plea of general issue. The jury returned a verdict against appellant for $5,000. After verdict, appellant entered its motion to dismiss the action for want of jurisdiction, which was overruled. Motions for a new trial and in arrest of judgment were subsequently also overruled and a judgment was entered on the verdict from which this appeal wa.s taken. Appellant offered no evidence and that introduced by appellee established the facts alleged in the declaration. Appellant assigns some twenty-three errors, covering many reasons why it is claimed the judgment should not be permitted to stand, but we find it necessary to discuss only those in which it asserts the suit abated with the death of Mr. Fraley and that therefore there was no right of action in appellee and no cause of action.

It must be borne in mind that this is an action' ex delicto and not ex contractu. Appellee, in support of Ms contention that the right of action did not abate, relies on chapter 28 of our Revised Statutes (J. & A. If 2222) wMch is as follows: “The common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply the defects of the common law, prior to the fourth year of James the First, excepting the second section of the sixth chapter of 43d Elizabeth,, the eighth chapter of 13th Elizabeth, and 9th chapter of 37th Henry Eighth, and which are of a general nature and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.” His position is that, while under the English law, tMs right of action would abate, yet if it be considered as an action for injury, to personal property, it survives by virtue of Act 4, Edw. Ill, ch 7, which is, he claims, in force in this State unless repealed, and which provided for the survival of actions concermng injuries to personal property. He also asserts that if it be considered an injury to the person it survives by virtue of section 123 of our Administration Act (J. & A. 172), which provides: “In addition to the actions wMch survive by the common law, the following shhll also survive: Actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property, or for the detention or conversion of personal property, and actions against officers for misfeasance, malfeasance or nonfeasance, of themselves or their deputies, and all actions for fraud or deceit.” We think it must be conceded that the section of our statute last quoted has entirely supplanted Act 4, Edw. Ill, ch. 7, even though the latter may have been at one time in force in this State.

Our Supreme Court has held that “at common law, actions of tort did not survive the death of the sole plaintiff or defendant. Therefore, if this action (an action ex delicto) survives at all, it must be by virtue of some statutory provision.” (Jones v. Barmm, 217 Ill. 381.) The court in that case, in considering the question whether that action was covered by section 123 of the Administration Act (J. & A. if 172), held that: “If the case comes under any provision of the statute, it must be the one with reference to actions to recover damages for an injury to personal property.” This would seem tantamount to holding that section 123 of the Administration Act (J. & A. ft 172) is the only authority in this State for the survival of actions in tort to recover damages for injury to personal property. If so, then is the instant case such an action for injury to personal property as is contemplated by that section? The case of Jones v. Barmm, supra, was an action by Jones to recover from Barmin damages for hindering, injuring and interfering with Jones’ business. After commencement of the suit, Barmm died. The sole question wag whether or not the action was one which survived. Following the language last above quoted from that case the court said: ‘ ‘ Taking into consideration the well-known meaning of the term ‘personal property’ and the connection in which it is used in the statute, we are of the opinion that it was not the intention of the legislature that it should be applied to the right of action occasioned by the malicious interfering by one person with the business of another, but was intended to apply only to actions for damages to tangible articles and things movable, to chattels, as distinguished from actions for damages to one’s business. ’ ’ It cannot be seriously contended that the present suit is any more an action for “damages to tangible articles” or “to things movable” or “to chattels’’ than was the case last cited. Clearly under this authority the present case must be held not to be an action for injury to personal property, and therefore does not survive by virtue of that portion of section 123 of the Administration Act (J. & A. 172) which provides for the survival of actions for an injury to personal property. Is it then an action for injury to the person as contemplated by that statute? The Appellate Court for the First District in the case of Denslow v. Hutchinson, 152 Ill. App. 502, held: “We are of the opinion that the words ‘actions,for damages for an injury to the person’ in the statute extend to and include only actions for damages to the person of a physical character.” The suit at bar is certainly not an action “for damages to the person of a physical character.” If this doctrine is correct the instant case does not survive then by that portion of section 123 of the Administration Act (J. & A. ft 172) relating to the survival of actions for an injury to the person. The only actions other than actions for damages to the person or to personal property which are declared to survive by that section are actions for replevin, for injury to real property, for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance or nonfeasance of themselves or their deputies, and all actions for fraud and deceit. It is not and could not be claimed that any of these cover the present case. Our Supreme Court has held: “Where a right of action is so entirely personal that the party in whom it exists cannot by contract place it beyond his control, it will not survive, * * * and that, as a general rule, assignability and survivability of causes of action are convertible terms” (Selden v. Illinois Trust & Savings Bank, 239 Ill. 67; People v. Western Life Indemnity Co., 261 Ill. 513). Beyond any doubt, the cause of action in the present ease was not assignable. If not, then to hold that it survived would be in violation of that announced and established doctrine of the cotirts of this State.

In People v. Western Life Indemnity Co., supra, it was held a petition for mandamus to compel an insuranee company to accept premiums and restore the petitioner to membership abated upon the death of the petitioner during the pendency of the suit. Regardless of what the courts of other States have held, it appears plain to us that under the rules of law laid down by the courts of appeal of this State, the right of action in this case did abate on the death of Fraley, and we must so hold. It is contended by appellee that even though this right of action did abate, appellant is in no position to raise that question in this court, for the reason that such a defense should have been pleaded in abatement, and that pleas in abatement must be interposed at the earliest opportunity and before pleading.matters in bar. If this is a matter in abatement in the ordinary acceptation of that term, appellee’s contention is well taken. It is the well-established rule that: “Any objection which goes merely in abatement of an action as distinguished from an objection to jurisdiction of the subject-matter, to be available at all, must be pleaded or otherwise presented to the court in the mode and at the time required by the law or it will be waived.” Corpus Juris, vol. 1, page 254, note 42. If the objection appears upon the face of the record, and does not go to the jurisdiction of the court over the subject-matter, it may be taken advantage of by demurrer specially on that ground or by motion. C'orpus Juris, vol. 1, page 256, notes 57-62. It also seems that such matter in abatement cannot be pleaded after filing a general demurrer, even though the demurrer has been overruled. Corpus Juris, vol. 1, p. 260', notes 79 and 80. The death of Fraley appeared upon the face of the declaration, appellant filed a general demurrer which was overruled and did not by plea or otherwise set up the fact of the death in abatement, but filed only a plea of the general issue in bar. So if the death of Fraley be considered as matter in abatement, it must be considered as waived under the above authorities, but the question at once arises whether the fact of the death is strictly a matter to be taken advantage of by demurrer, motion or plea in abatement, or by plea in bar.

Pleas in abatement are defined by our Supreme Court as follows: “Pleas are divided into two general classes, viz., dilatory and peremptory, otherwise designated as pleas in abatement and pleas at bar. A plea in abatement is defined to be a plea that, without disputing the justness of the plaintiff’s claim, objects to the place, mode or time of asserting it, and requires that therefore, and pro hac vice, judgment be given for the defendant, leaving it open to renew the suit in another place or form, or at another time; while to the second class belong all those pleas having for their object the defeating of the plaintiff’s claim. Hence, a plea in bar of the action may be defined as one which shows some ground for barring or defeating the action, and makes prayer to that effect. Pleas in bar and pleas in abatement have, therefore, this marked distinction: Pleas in bar are addressed to the merits of the claim and as impairing the right of action altogether, whereas pleas in abatement tend merely to divert, suspend or defeat the present suit.” (Pitts Sons’ Mfg. Co. v. Commercial Nat. Bank, 121 Ill. 582.) This same definition is given by Corpus Juris in volume 1, at page 26. If the contention in this case was that upon the death of Fraley the action in his name abated and the suit should have been brought in the name of his personal representative or some other person, or in some other manner or in some other form, then that would be matter in abatement within the above definition. But the contention is that the right of action, if any ever existed, abated and does not now exist in any one, but is barred and defeated altogether, and that contention under the above definition involves matter in bar of the action. That being true, the next .question is, has appellant saved that question for review by this court? The death of Fraley appears upon the face of the declaration, so that if the right of action did thereby abate, the declaration shows no right of action in appellee. “If a declaration is so totally defective as not to support the judgment, that may be availed of by a motion in arrest, even after a demurrer thereto has been overruled, and the defendant has pleaded over. By the motion in arrest in this ease, the sufficiency of the declaration to sustain the judgment is therefore directly presented.” (Stearns v. Cope, 109 Ill. 340; Henning v. Sampsell, 236 Ill. 375.)

A declaration which fails to state a “cause” of action is insufficient to support a judgment. (Walters v. City of Ottawa, 240 Ill. 259.) Does a declaration which fails to state a “right” of action, as does the one in this case, fail to state a “cause” of action? This question is discussed and disposed of as follows in the case last referred to: “ ‘Cause of action’ includes every fact necessary for the plaintiff to prove to entitle him to succeed—every fact that the defendant would have a right to traverse. It has been said to be the right to prosecute an action with effect. (Patterson v. Patterson, 59 N. Y. 574.) The terms ‘right of action’ and ‘cause of action’ are equivalent expressions. (Clark v. Southard’s Heirs, 16 Ohio St. 408.) ‘By this phrase (cause of action) is understood the. right to bring an action, which implies that there is some person in existence who can assert and also a person who can lawfully be sued. * * * There is no cause of action until the claimant can legally sue.' (Bouvier’s Diet, title “Cause of action.”) * * * If he have no legal right to sue, he has not merely a bad cause of action, but no cause of action. ’ (Parker v. Enslow, 102 Ill. 272.) A cause of action accrues when facts exist which authorize one party to maintain an action against another. (Davis v. Munie, 235 Ill. 620.) It is not possible for one at the same time to have a cause of action and not to have the right to sue.” It must follow, under the authorities above cited, that the declaration in this case fails to state a “cause” of action and is insufficient to support the judgment, consequently it was error to overrule the motion in arrest of judgment, and because of that error the judgment should be reversed.

In reaching the conclusions herein set forth, we have not been unmindful of the case of Duffie v. Bankers’ Life Ass’n of Des Moines, 160 Iowa 19, 46 L. R. A. (N. S.) 25, 139 N. W. 1087, upon which appellee relies to a large extent, and in which the facts are very similar to the facts in this case. In that case the question of the survival of the right of action does not seem to have been raised although the question of the proper party plaintiff was. The court there recognized that the action was based upon negligence towards the deceased and was for an injury to him, and held that his representative was the proper party to bring suit. This was in effect holding that deceased’s right of action in tort survived to his personal representative. Whether such a right of action survives to the personal representative of a deceased person, who has suffered an injury, is a matter of statutory regulation and the statutes of this State as interpretated by our courts of appeal do not, as we have above seen, establish such a right.

For the reasons stated herein, the judgment of the trial court will be reversed, and as in our opinion no action can be maintained by appellee upon the undisputed facts, the cause will not be remanded.

Reversed.


text:
    Jenkin Jenkins, Sheriff, for use of Mathias Henderser, Appellee, v. J. J. Lahey, Appellant.
    1. Replevin, § 175

      —what not a defense in action on bond. A recital in a replevin bond of the court of which the writ is to issue is not a recital of any essential matter reauired by the statute, and the fact that a surety agreed to sign such a bond only in the event that the action was filed in the circuit court would not be a defense in a suit on the bond when the proceedings were in a city court.
    2. Alteration of instruments, § 21*—when material changes not shown. In an action on a replevin bond, a verdict of the jury in favor of the plaintiff would not be disturbed although there was testimony of an attorney for the defendant surety that he added the letter “s” to the word “defendant,” inserted the name of another person as defendant, and changed the date of the bond after it had been signed, especially as the defendant did not remember when he signed the bond.
    3. Appeal and error, § 864*—necessity that errors be shown by abstraed. A judgment will not be reversed for errors which do not appear in the abstract.
    4. Continuance, § 7*—when amendment not ground for. In an action on a replevin bond, it was not error to refuse a motion for a continuance based on the grounds of surprise when an amended replication to a plea was filed alleging the existence of a chattel mortgage, as the evidence showed that the parties knew of the chattel mortgage at the time of the replevin suit.
    5. Replevin, § 206*—when evidence sustains recovery on bond. Evidence in an action on a replevin bond held to sustain a claim that a party lost goods by reason of a replevin writ, and that they were not returned to him.
    6. Replevin, § 203*—what is evidence of value of goods in action on bond. The value of goods as stated in an affidavit and bond in a replevin suit is presumed to be at least prima facie evidence of the value in a suit on the bond.
    7. Replevin, § 209*—When damages not excessive in action on bond. An award of damages of $1,000 in a suit on a replevin bond, held not excessive when the plaintiff’s usee testified that the goods were worth $1,300, and such proof was not overcome by the proof of defendant.

      Appeal from the City Court of Granite City; the Hon. M. R. Stjllivan, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 25, 1920.
    J. B. Harris, for appellant.
    Harold J. Bandy, for appellee.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This is an action on a replevin bond brought by Jenldn Jenkins, ex-sheriff of Madison county, for the use of Mathias Henderser against appellant to the December term, 1918, of the city court of Granite City. The suit was originally brought against Mary Berkovitz and appellant, but no service was had upon Mrs. Berkovitz and the case was dismissed as to her. Upon trial before a jury, appellee recovered a verdict for $1,000, for which amount judgment was rendered.

The replevin bond upon which this suit was brought was taken by the sheriff on the 15th day of April, 1915, in an action of replevin instituted in the city court of Granite City by Mary Berkovitz against Mathias Henderser and C. T. Cowgill. Upon trial of the same the issues were found for the defendants and a writ of retorno habendo. awarded. It appears from the evidence in this case that the chattels replevied were not returned to the defendants in the replevin suit, and this action was brought to recover their value, together with costs and damages. The bond filed in the replevin suit on which this action is brought is as follows:

“Know all men by these presents, That we, Mary Berkovitz, as principal, and Paul Smith and J. J. Lahey as sureties, are firmly bound unto Jenki'n Jenkins, sheriff of the county of Madison, in the State of Illinois, and to his successors in office, executors, administrators and assigns in the penal sum of fifteen hundred dollars, lawful money of the United States, for the payment of which sum we do hereby jointly and severally bind ourselves, our heirs, executors and administrators. The condition of this obligation is such that, whereas, on the fifteenth day of April, A. D. 1915, the said Mary Berkovitz sued a writ of replevin out of the circuit court of the said county of Madison against Mathias Henderser and C. T. Cowgill, defendants, for the recovery of the following described goods and chattels, to wit:

“The fixtures and stock of groceries, provisions and merchandise contained in the two-story frame building located at 1712-1714 Maple street, on lot six in block ‘C’ of the First Addition to Granite City; and the horse and wagon used in conducting said business.

“Now, if the said Mary Berkovitz, plaintiff, shall prosecute her suit to effect and without delay, and make return of said property, if return thereof shall be awarded, and save and keep harmless the said sheriff in replevying the said property, and pay all costs and damages occasioned by wrongful suing out said writ of replevin, then this obligation to be void, otherwise to remain in full force an'd effect.

“Witness our hands and seals this fifteenth day of April, A. D. 1915.

(Signed)

Mary Berkovitz (Seal)

Paul Smith (Seal)

J. J. Lahey (Seal)

“Taken and approved by me this 15th day of April, A. D. 1915.

Jenkin Jenkins,

Sheriff.

By Ed. Hagnauer,

Deputy.

State of Illinois, "i Madison County. Jss.

“Paul Smith, George'Nemeth and J. J. Lahey, the within named sureties, being first duly sworn, upon their respective corporal oaths say that they are collectively worth more than two thousand dollars over and above their exemptions, incumbrances and liabilities.

Paul Smith.

J. J. Lahey.

“Subscribed and sworn to before me this 15th day of April, A. D. 1915.

(Seal) J. B. Harris,

Notary Public.”

It appears from the proofs that the plaintiff and defendants named in the bond were the same as those named in the affidavit filed in the replevin suit by the plaintiff therein, and the identical chattels listed in the affidavit are named in the bond; also that the affidavit and bond were executed on the same day, or at least bear the same date, and were to be used in a suit entitled Mary Berkovitz v. Mathias Henderser and C. T. Cowgill, and that the bond was given to indemnify the sheriff in replevying the chattels claimed by Mrs. Berkovitz in her affidavit. It will be observed that the bond above set forth states “The condition of this obligation is such that, whereas,, on the fifteenth day of April, A. D. 1915, the said Mary Berkovitz sued a writ of replevin out of the circuit court of .the said county of Madison,” etc. The writ of replevin, however, was not sued out of the circuit court of Madison county, but as has already been seen out of the city court of Granite City. The declaration alleges that although it is set forth in the bond that a writ of replevin was sued out of the circuit court of Madison county, “as a matter of fact, the signers of the said writing obligatory, who are the defendants herein, intended and meant the city court of the City of Granite City, in the county of Madison and State of Illinois.”

Appellant testified that he did not intend to become surety for Mary Berkovitz in any action in the city court of Granite City and that he expressly told her and her attorney, J. B. Harris, at the time he signed the bond, he would sign as surety only in the event the action was filed in the circuit court. It is. the contention of appellant’s counsel that appellant became surety upon a bond to indemnify the sheriff in serving a. writ of replevin which Mary Berkovitz intended to sue out of the circuit court, and that as the writ was issued out of the city court of Granite City, appellant is not liable thereon. The bond and writ were delivered to the sheriff by Jv B. Harris, who was then attorney for Mrs. Berkovitz and who is now attorney for appellant. By virtue of such writ and bond, Mrs. Berkovitz obtained possession of the property described in both affidavit and bond as well as the writ, and notwithstanding the judgment of the court, did not return the same to the defendants in that suit. The recital in the bond of the court, out of which the writ is to issue, is not the recital of any essential matter required by the statute. If such recital were omitted, or left blank, the bond would be just as obligatory. In the case of Hotz v. Bollman Bros. Co., 47 Ill. App. 378, this court held: “The affidavit, writ and bond are a part of the same proceeding, and for the purpose of determining the identity of the bond, the date of suing out the writ and the court out of which it was sued may be considered together, not for the purpose of supplying the essential omissions in the bond, but to correct unessential recitals made for the sole purpose of identification of the bond with the suit. The part of the bond which recites the date of suing out the writ of replevin, and the court out of which it is sued, is not the statutory part of the bond. The statute does not require such recitals. Even if it did, and the whole proceedings taken together and considered as one should show the correct date, and the proper court, then such other papers would be resorted to for the purpose of identification. If such recitals were left blank, the obligatory part of the bond could stand and extraneous proof would have to be resorted to in order to identify the bond with the suit in which it was given.” In that case the bond sued on recited that “Bollman Bros. Company had on the 22nd day of June, A. D. 1891, sued out of the - Court of St. Clair county a writ of replevin,” etc., whereas in truth the writ was sued out of the circuit court of Madison county on the 23rd of June. The court allowed a recovery on the bond in that case and under that authority we hold that even though appellant’s' testimony be taken as true in regard to the conditions under which he signed the bond, it constitutes no defense to a suit on the same.

The attorney for appellant testified that 2 days after appellant signed the bond, he, J. B. Harris, added the letter “s” to the word “defendant,” inserted the name of “C. T. Cowgill” as a defendant and changed the date of the bond from April 13 to April 15 without the knowledge or consent of appellant. Said attorney is the only person testifying to this change having been made and appellant himself does not remember the date on which he signed the bond. Leaving out the questions of the propriety of attorney for appellant becoming a witness in the ease of his own volition for his client and the credit which should be given his testimony under such conditions, yet, when we consider the nature of the testimony given by said attorney together with all the facts and circumstances in proof, we do not feel that there was anything in the proof in regard to said claimed changes in the bond which would warrant us in disturbing the verdict.

It is further contended by appellant that the trial court erred in not granting appellant’s motion for a continuance. Appellant’s tenth plea to the declaration alleged: “the said goods and chattels in the said writ of replevin mentioned at the said time when, etc., were the property of the said Mary Berkovitz, and not of the said Mathias Henderser and C. T. Cowgill, or either of them,” etc. Appellee’s replication originally filed to this ¿lea averred “the right to possession of the said goods and chattels were found to be in Mathias Henderser and C. T. Cowgill.” On the trial appellee attempted to show that at the time Mary Berkovitz took the goods under the writ, he held a chattel mortgage for $1,300 against them. Upon objection being sustained to this evidence, appellee asked for and ohtained leave to file an amended replication to this plea, which in substance alleged the existence and ownership of such chattel mortgage; that appellee’s usee had at or about April 13, 1915, taken possession of the goods under this mortgage and that therefore at the time of the issuance of the writ, Mrs. Berkovitz was not the owner of them. Upon the filing of this amended replication, appellant filed a motion for continuance supported by affidavit on the ground of surprise. Appellant has not abstracted this amended replication nor his affidavit for a continuance. Under the established rule '“that no judgment will be reversed for errors which are not made to appear by the abstract” (Amundson Printing Co. v. Empire Paper Co., 83 Ill. App. 440), we might well refuse to consider this assignment of error. However, it does not appear that appellant was in any way injured by the court’s ruling. Altogether there were sixteen pleas filed to the declaration and the evidence shows the existence of the claimed chattel mortgage was known to all the parties at the time the replevin suit was tried, it being in fact introduced in evidence in the trial of that case. It was not error to refuse the motion. •

It is also contended by appellant that the evidence shows appellee’s usee took possession of the goods under his chattel mortgage after Mrs. Berkovitz had taken them from him on her writ of replevin, and that therefore appellee’s usee did not lose the goods by reason of the replevin suit and is not entitled to recover their value in this case. That was one of the questions heard by the jury, and the proof appears to fully sustain the claim of appellee that he lost the goods by reason of the replevin writ and that they were not returned to him by the plaintiff in that suit. It is also contended the verdict is excessive. The affidavit and bond in the replevin suit are in evidence. The affidavit places the value of the goods at $700 and the bond was signed by appellant in the penal sum of $1,500, which is presumed to be twice the value of the goods. The value as stated in the affidavit and bond-is presumed to be at least prima facie evidence of the value in a suit on the bond. (Martin v. Hertz, 224 Ill. 84.) Appellee’s usee testified in effect the goods were worth $1,300. This proof on the part of appellee does not appear to have been overcome by the proof for appellant. While the testimony as to attorney’s fees is somewhat conflicting, we do not feel that under all the proofs in the case the damages awarded are so excessive as to justify a reversal of the judgment.

No error of moment appears in the court’s rulings on the evidence or instructions. The judgment will be affirmed.

Affirmed.


author: Mr. Presiding Justice Matchett

text:
    First District.
    John F. S. Lindstrom, appellee, v. Frederick W. Soelter, appellant.
    Gen. No. 24,785.
    Action to recover damages for false imprisonment. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 2, 1919.
    Philip Sultan, for appellant.
    Musgrave, Oppenheim & Lee, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Anna G. Conklin, appellee, v. John M. Hoffman et al., on appeal of John M. Hoffman, appellant.
    Gen. No. 24,794.
    Action of assumpsit to recover balance due under contract for services rendered in procuring contract for switch track. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Kiekham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 2, 1919.
    Frank L. Tuttle, for appellant.
    Shaeffer & Foster, for appellee; George H. Foster, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Franklin MacVeagh & Company, appellee, v. Louis J. Gross, appellant.
    Gen. No. 24,802.
    Action to recover for balance due on account. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed December 2, 1919.
    Rehearing denied and opinion slightly modified December 17, 1919.
    Levin & Krinsky, for appellant.
    John C. Slade, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    August Schwandt, appellee, v. Chicago Railways Company et al., trading as Chicago Surface Lines, appellants.
    Gen. No. 24,867.
    Action to recover’for personal injuries by being struck by automobile. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed with finding of fact.
    Opinion filed December 2, 1919.
    P. L. MeArdle and Prank L. Kriete, for appellants; W. W. Gurley and J. R. Guilliams, of counsel.
    Walther & Lanaghen and Walter ' S. Hull, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    John J. Burke, v. H. A. Anderson et al. John J. Burke et al., appellees, v. Louis Sussman, appellant.
    Gen. No. 25,124.
    Suit to establish and foreclose mechanics’ liens. Decree for complainants, and order confirming master’s report of sale and distribution. Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed December 2, 1919.
    Charles Levitón, for appellant.
    H. J. Rosenberg, Edward Berkson and McCullough & McCullough, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    G. A. Copp, Inc., appellee, v. Gideon A. Copp, appellant.
    Gen. No. 25,330.
    Suit to enjoin unfair competition in use of trade name. Decree for complainant. Interlocutory appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed December 2, 1919.
    Barnes, J., dissenting.
    Thompson, Tyrrell & Chambers, for appellant.
    McGilvray, Eames & Vaughan, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


author: Mr. Justice Barnes

text:
    Patrick Guilfoyle, appellee, v. William F. Krueger, appellant.
    Gen. No. 24,781.
    Action to recover damages for malicious prosecution. Judgment for plaintiff. Appeal from the Circuit Court of .Cook, county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed with finding of facts.
    Opinion filed December 2, 1919.
    F. W. Proudfoot and O. J. C. Wray, for appellant.
    George E. Gorman, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    J. Levison, appellee, v. The New Century Company, appellant.
    Gen. No. 24,800.
    Action to recover damages for breach of contract to deliver goods. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term. 1918.
    Reversed with finding of fact.
    Opinion filed December 2, 1919.
    Bassler, Bippus & Rose, for appellant.
    William T. McMillan, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    James N. Litsey, appellant, v. Eric E. Skoglund, appellee.
    Gen. No. 24,849.
    Action by real estate broker to recover commissions. Judgment fdr defendant. Appeal from the Municipal Court of Chicago; the Hon. Harry O. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 2, 1919.
    Mathias & Sullivan, for appellant.
    Joseph M. Griffen, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Louis Rice, plaintiff in error.
    Gen. No. 24,882.
    Prosecution for violation of J. & A. Stat. If 10599, for failure to keep hotel register. Judgment of guilty. Error to the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed.
    Opinion filed December 2, 1919.
    Maurice J. Slater, for plaintiff in error.
    Maclay Hoyne and Edward E. Wilson, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Andrew F. Hughes, appellee, v. St. Bernard’s Hotel Dieu, appellant.
    Gen. No. 24,832.
    Action to recover balance due for plans and specifications furnished by plaintiff. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed.
    Opinion filed December 2, 1919.
    Hugh O’Neill and M. H. Hoey, for appellant.
    Edward R. Hartigan, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Lee C. Snyder, appellee, v. Chicago Railways Company and Chicago City Railway Company, appellants.
    Gen. No. 24,846.
    Action to recover for personal injuries in collision between street car and automobile which plaintiff was driving. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, lf 18.
    Reversed with finding of fact.
    Opinion filed December 2, 1919.
    Watson J. Perry and Thomas J. Symmes, for appellants; W. W. Gurley and. J. R. Guilliams, of counsel.
    James J. Gaughan and Preeman K. Blake, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Peter Nelson, appellee, v. Chicago Railways Company, appellant.
    Gen. No. 24,861.
    Action to recover for personal injury to street car passenger while in act of boarding ear. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Prank J. Johnston, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed with finding of fact.
    Opinion filed December 2, 1919.

      Thomas J. Symmes and Watson J. Ferry, for appellant; W. W. Gurley and J. B. Guilliams, of counsel.
    Charles C. Spencer, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Barbara Kuhne, appellant, v. The Sanitary District of Chicago, appellee.
    Gen. No. 24,898.
    Action of trespass on the ease to recover damages for injury to crops, timber and pasturage, by overflow. Judgment for. defendant. Appeal from the Circuit Court of Cook county; the Hon. Osear E. Heard", Judge, presiding. Heard in the Branch Appellate Court at the April term, 1918.
    Affirmed.
    Opinion filed December 2, 1919.
    Warren Pease, for appellant.
    Edmund D. Adcock, for appellee; Edmund D. Adcock, Boss C. Hall and Walter E. Beebe, of counsel.
   Mr. Justice Gridley

delivered the opinion ■ of the court.


text:
    The People of the State of Illinois, defendant in error, v. Tony Minga, plaintiff in error.
    Gen. No. 24,944.
    Contempt proceeding. Judgment of guilty. Error to the Criminal Court of Cook county; the Hon. Marcus A. Kavahagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed.
    Opinion filed December 2, 1919.
    Bernard Margolis, for plaintiff in error.
    Maelay Hoyne, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Presiding Justice Thomson

text:
    James Helegda, defendant in error, v. Mary Helegda, individually and as executrix of the estate of Joseph Helegda, deceased, plaintiff in error.
    Gen. No. 23,999.
    Bill for accounting and partition of real estate. Decree for complainant. Error to the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed in part, reversed in part and remanded.
    Opinion filed December 3, 1919.
    Charles V. Barrett and Myer S. Emrich, for plaintiff in error.
    Beach & Beach and Otto H. Beutler, for defendant in error.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    Charles M. Rogers et al., surviving partners of Rogers & Rollo, appellants, v. Edward M. Flint et al., appellees.
    Gen. No. 24,558.
    Action on insurance solicitor’s bond. Judgment for defendants. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed December 3, 1919.
    Wolseley & Ball and G. A. Buresh, for appellants.
    Charles B. Stafford, for appellees.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    Frank S. Betz Company, appellant, v. Chicago Railways Company, appellee.
    Gen. No. 24,589.
    Appeal from the Municipal Court of Chicago; the Hon. Edward

      T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed on sustaining motion to strike bill of exceptions.
    Opinion filed December 3, 1919.
    George D. Wellington and Ernest W. Clark, for appellant.
    John R. Guilliams and Frank L. Kriete, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    Edward Bender, by Frank Bender, appellee, v. Frank Klajda et al., appellants.
    Gen. No. 24,606.
    Action to recover damages resulting from bite of dog. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed December 3, 1919.
    Edward H. Taylor, for appellants; Charles M. Haft, of counsel.
    Vincent G. Gallagher and Ernest Messner, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    The Baltimore and Ohio Chicago Terminal Railroad Company, appellee, v. W. J. Newman Company, appellant.
    Gen. No. 24,625.
    Action to recover balance due as rent. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 3, 1919.
    Patrick T. Harrington and John S. Reynolds, for appellant.
    Henry D. Sheean, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Frank T. Mead, plaintiff in error, v. Chicago Railways Company et al., trading as Chicago Surface Lines, defendants in error.
    Gen. No. 24,435.
    Action to recover for personal injuries in collision between street car and automobile driven by plaintiff. Judgment for defendants. Error to the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in the Branch Appellate Court, at the October term, 1918.
    Affirmed.
    Opinion filed December 3, 1919.
    Henry J. Toner and Charles P. Molthrop, for plaintiff in error; Charles P. Molthrop, of counsel.
    Charles Le Roy Brown, for defendants in error; John R. Guilliams and Joseph D. Ryan, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O'Connor

text:
    Mildred M. Schwengel, administratrix of the estate of Rudolph Schwengel, deceased, appellant, v. Morris Hirsch, appellee.
    Gen. No. 24,566.
    Action to recover damages for wrongful death by being struck by auto-truck in attempt to stop runaway horse. Judgment for defendant. Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 3, 1919.
    John A. Bloomingston, for appellant.
    Nathaniel A. Stern and Isaac E. Korn, for appellee; Cyrus Heren, of counsel.
   Mr. Justice O'Connor

delivered the opinion of the court.


text:
    City of Chicago, appellee, v. Peter Theologes, appellant.
    Gen. No. 24,576.
    Prosecution for violation of Revised Municipal Code of Chicago sec. 2025. Judgment of guilty. Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 3, 1919.
    Lawrence E. Dowd, for appellant.
    Daniel Webster and Harry B. Miller, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Taylor

text:
    Forster, Waterbury & Company, appellant, v. James F. Bishop, administrator of the estate of George F. Ryan, deceased, substituted as defendant instead of George F. Ryan, trading as George F. Ryan & Company, appellee.
    Gen. No. 24,634.
    Action to recover on account for goods purchased. Judgment for defendant. Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 3, 1919.
    Thomson, P. J., specially concurring.
    King, Brower & Hurlbut, for appellant.
    Daniel S. Wentworth and David "B. Maloney, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Earl G. Anglim, by Thomas J. Anglim, appellee, v. Chicago Great Western Railroad Company, appellant.
    Gen. No. 24,655.
    Action to recover for wrongful death of 11-year-old boy struck by train at highway crossing. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 3, 1919.
    Winston, Strawn & Shaw, for appellant; Edward W. Everett and W. C. Graves, of counsel.
    James C. MeShane, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Frank O. Shaw, administrator of the estate of Jennie O. Uhrus, deceased, appellee, v. Sam Garvin & Company, appellant.
    Gen. No. 24,664.
    Action to recover for wrongful death by being run ‘over by truck. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 3, 1919.
    Irwin & Hazen, for appellant.
    Elmer & Cohen, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Gordon A. Ramsay, administrator of the estate of Esther Nixon, deceased, appellee, v. Easter Lily Club, appellant.
    Gen. No. 24,747.
    Action to recover sick, nurse and funeral benefits. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. James Donahoe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 3, 1919.

      James E. White, for appellant.
    W. E. Mollison, for appellee; W. J. Latham, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Lawrence Lindgren, appellee, v. Frank Parmelee Company, appellant.
    Gen. No. 24,768.
    Action to recover damages for injury to automobile in collision with defendant’s wagon. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. F. J. Campbell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 3, 1919.
    Homer K. Galpin, for appellant.
    John F. Bolton, for appellee.
   Mr. Justice Taylor

delivered the opinion .of the court.


text:
    Bessie Berger, appellee, v. Israel Berger and Tillie Berger, appellants.
    Gen. No. 24,853.
    Ejectment to recover possession of flat. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 3, 1919.
    Rehearing denied December 16, 1919.
    William L. Martin, for appellants.
    William Slack and Abram E. Adelman, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    F. B. Van Wormer, appellee, v. London Guarantee & Accident Company, appellant.
    Gen. No. 25,158.
    Action to recover for medical services rendered injured employees of defendant. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court, at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    J. C. M. CBow, for appellant.
    Exselsen, Peacock & Wollesen, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Stohn Bros., Inc., appellee, v. Philip A. Naughten, appellant.
    Gen. No. 25,180.
    Action to recover damages for goods sold to third party upon false representations by defendant. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trade, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Charles W. Lamborn, for appellant.
    Gilbert F. Wagner, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Martha M. Seeberger et al., appellees, v. Charles H. Seeberger, appellant.
    Gen. No. 25,189.
    Action to recover trust fund. Judgment for plaintiffs. Appeal from the Circuit Court of Cook county; the Hon. Richard S, Tuthill, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Millard R. Powers, for appellant.
    King, Brower & Hurlbut, for appellees.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    James F. Hall, appellee, v. Mamie E. Hall, appellant.
    Gen. No. 25,201.
    Suit for divorce on ground of adultery. Decree for complainant. Appeal from the Circuit Court of Co.ok county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Rehearing denied December 22, 1919.
    Charles E. Erbstein and Charles P. R. Macaulay, for appellant.
    Cantwell, Smith & Cantwell, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Pocahontas Coal Company, appellee, v. Lee J. Lesser, appellant.
    Gen. No. 25,214.
    Action to recover for goods sold and delivered. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed with statutory damages.
    Opinion filed December 8, 1919.
    Lurie & Fishell, for appellant; Morris K. Levinson, of counsel.
    Henry M. Hagan, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Justice Dever

text:
    Central Electric Company, appellee, v. The Fidelity and Casualty Company of New York, appellant.
    Gen. No. 24,674.
    Action to recover on health insurance policy. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed December 8, 1919.
    Rehearing denied December 22, 1919.
    McSurely, P. J., specially concurring.
    Winston, Strawn & Shaw, for appellant; Edward W. Everett, of counsel.
    Jones, Addington, Ames & Seibold, for appellee; Isaac B. Lipson, of counsel.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Mary J. Killen, administratrix of the estate of Charles T. Killen, deceased, plaintiff, v. H. Edgerton Vance, executor of the last will and testament of J. Nelson Vance, deceased, defendant-appellant, and Chauncey Dewey, interpleader-appellee.
    Gen. No. 25,024.
    Bill of interpleader to determine ownership of fund. Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded with directions.
    Opinion filed December 8, 1919.
    Rehearing denied and opinion slightly modified December 22, 1919.
    Wilson, Moore & Mellvaine, for appellant; N. G. Moore, of counsel.
    Busby, Weber, Miller & Donovan, for appellee.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    J. R. Shapiro, appellant, v. A. Breliant, appellee.
    Gen. No. 25,028.
    Action to recover damages for failure to deliver goods purchased. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Clarence T. Morse, for appellant.
    Charles V. Barrett and John F. Tyrrell, for appellee.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    New Process Refining Company, appellant, v. Rudolph R. Rosenbaum, appellee.
    Gen. No. 25,058.
    Action of assumpsit by corporation to recover on written contract with inventor. Judgment for defendant on demurrer. Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded with directions.
    Opinion filed December 8, 1919.
    Miller, Starr, Brown, Packard & Peekham, for appellant; Thomas McCall, of counsel.
    Newman, Poppenhusen, Stern & Johnston, for appellee; Lawrence A. Cohen, of counsel.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Elmer D. Brothers, appellee, v. Grace Marie Higgins, appellant.
    Gen. No. 25,085.
    Action to recover attorney’s fees. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Frank Johnston, Jr., Judge, presiding. Heard in this court at the March term, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed with finding of facts.
    Opinion filed December 8, 1919.
    Rehearing denied December 22, 1919.
    Wilkerson, Cassels, Potter & Gilbert and Arthur R. Wolfe, for appellant; Ralph F. Potter, of counsel.
    Frank M. Fairfield, for appellee.
   Mr. Justice Dever

delivered-the opinion of the court.


text:
    Walter R. Meadows, appellee, v. South Side Elevated Railroad Company, appellant.
    Gen. No. 25,141.
    Action to recover for personal injuries to trackman struck by train. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the March term, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed December 8, 1919.
    Rehearing denied December 22, 1919.
    Addison L. Gardner and Weymouth Kirkland, for appellant.
    Finn & Miller, for appellee; O. A Arnston, of counsel.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Joseph Siparis, appellee, v. Chicago Railways Company, appellant.
    Gen. No. 25,170.
    Action to recover for personal injuries to pedestrian struck by street car. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Joseph D. Ryan and Watson J. Perry, for appellant; W. W. Gurley and John R. Guilliams, of counsel.
    O. Helmer Johnson and James D. Power, for appéllee.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    John S. Flizikowski, appellee, v. Albert Sikorski, appellant.
    Gen. No. 25,195.
    Action to recover for services rendered by architect.' Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Prank H. Graham, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Edmund W. Proehlich, for appellant.
    Pines & Newmann, for appellee; Alvin E. Stein, of counsel.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Atlantic Transport Company, appellee, v. George B. Cary, appellant.
    Gen. No. 25,204.
    Action to recover damages for breach of contract reserving shipping space in vessel. • Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Donald H. Mann, for appellant.
    H. G. Colson, for appellee.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Marie Pitusiak, appellee, v. Globe Mutual Life Insurance Association, appellant.
    Gen. No. 25,217.
    Action to recover on a life insurance policy. Judgment for plaintiff. Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and judgment of nil capiat here.
    Opinion filed December 8, 1919.
    Arthur W. Pulton and John V. McCormick, for appellant.
    James Pereival Pio and John A. Ulrich, for appellee.
   Mr. Justice Dever

delivered the opinion of the court.


text:
    Samuel Gallick, appellee, v. M. A. Riman, appellant.
    Gen. No. 25,229.
    Action to recover money obtained by false representations. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Sonnenschein, Berkson, Lautmann & Levinson, for appellant.
    Thurman, Hume & Kennedy, for appellee.
   Mr. Justice Dever

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    The People of the State of Illinois ex rel. Samuel P. Thrasher, appellee, v. Max Eisner, appellant.
    Gen. No. 25,079.
    Suit to restrain use of premises for purposes of lewdness, assignai tion or prostitution. Decree for complainant. Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded with directions.
    Opinion filed December 8, 1919.
    Huening & Kretske, for appellant; Frank T. Huening, of counsel.
    Sims, Welch & Hodman, for appellee; Daniel J. Ward, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Albert Dallemand & Company, appellee, v. Rudolph Lederer and Samuel Lederer, trading as Lederer Brothers, appellants.
    Gen. No. 25,119.
    Action to recover balance due on purchase price of goods. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Rehearing denied December 22, 1919.
    McSurely, P. J., dissenting.
    Sabath, Stafford & Sabath, for appellants; Charles B. Stafford and Thomas M. Zasadil, Jr., of counsel.
    Moses, Rosenthal & Kennedy, for appellee; S. Sidney Stein and Henry Jackson Darby, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Edward Klonowski, by next friend, appellee, v. Chicago and Interurban Traction Company, appellant.
    Gen. No. 25,165.
    Action to recover for personal injuries to pedestrian struck by an interurban car. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Oscar Hebei, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    Busby, Weber, Miller & Donovan, for appellant.
    James C. MeShane, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    David Gilmour, appellee, v. Otto F. Reets, appellant.
    Gen. No. 25,211.
    Action to recover balance due on attorney’s fees. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Leo J. Doyle, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed December 8, 1919.
    J. W. Richey, for appellant.
    Philip P. Sachs, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    German-American Savings, Loan & Building Association et al., appellants, v. John C. Trainor et al. Harriet H. Leaming, executrix of the estate of Jeremiah Leaming, deceased, appellee.
    Gen. No. 24,661.
    Foreclosure suit. Decree for defendants. Appeal from the Circuit Court of Cook county; the Hon. Osear M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 10, 1919.
    Sabath, Stafford & Sabath, for appellants; Charles B. Stafford and Thomas M. Zasadil, Jr., of counsel.
    Arthur Smith, for appellee.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.


text:
    Albert Hoefeld et al., appellees, v. James Ozello, appellant.
    Gen. No. 24,182.
    Action to recover rent. Judgment for plaintiffs. Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in th'e Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed December 10, 1919.
    Thomas W. Prindeville and Thomas J. O’Hare, for appellant.
    Adler, Lederer & Beck, for appellees.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Albert Hoefeld et al., appellees, v. James Ozello, appellant.
    Gen. No. 24,183.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed on authority of opinion rendered in Hoefeld v. Ozello, ante.

    Opinion filed December 10, 1919.
    Thomas W. Prindeville and Thomas J. O’Hare, for appellant.
    Adler, Lederer & Beck, for appellees.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Sol K. Graff, appellee, v. Julius E. Levin, appellant.
    Gen. No. 24,519.
    Action to recover money paid under contract for exchange of lands. Judgment for plaintiff. Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the "Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed December 10, 1919.
    Joseph Rosenberg, for appellant.
    Guy Van Schaick, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.


author: Per Curiam.

text:
    City of Chicago, appellee, v. Benson Lights, appellant.
    Gen. No. 25,832.
    Action to recover penalty for violation of city ordinance. Judgment for plaintiff. Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1919.
    Motion allowed and judgment affirmed.
    Opinion filed December 16, 1919.
    No appearance for appellant.
    Harry B. Miller and Daniel Webster, for appellee.
   Per Curiam.


text:
    R. C. Foster, appellant, v. Eugenie Graf, appellee.
    Gen. No. 23,471.
    Action to recover proceeds of forged cheeks. Judgment for defendant. Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term. 1918.
    Reversed and remanded.
    Opinion filed December 31, 1919.
    Defrees, Buckingham & Eaton and James C. Woodbury, for appellant; Don Kenneth Jones, of counsel.
    M. M. Jacobs, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    John Cerny, plaintiff in error, v. Josephine Cihlar et al., defendants in error.
    Gen. No. 24,017.
    Contempt proceedings against receiver for failure to obey order of court. Judgment of guilty. Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed.
    Opinion filed December 31, 1919.
    David K. Tone and Henry M. Ashton, for plaintiff in error.
    Joseph O. Pisha and Ewart Harris, for defendants in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Harry Podolsky et al., trading as Podolsky & Katz, plaintiffs in error, v. Benjamin Fishman, trading as Benjamin Fishman & Company, defendant in error.
    Gen. No. 24,527.
    Action to recover damages for breach of contract of sale and delivery of goods. Judgment for defendant. Error to the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and remanded.
    Opinion filed December 31, 1919.
    Michael Peinberg and Isadora Goldstein, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Cornelius Shanahan, appellee, v. Alex Podolski and John Podolski, appellants.
    Gen. No. 24,701.
    Action to recover for personal injuries caused by being struck by horse and wagon. Judgment for plaintiff. Appeal from the Circuit Court of Cook county; the Hon. Sam Welty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed December 31, 1919.
    E. T. Noonan, for appellants.
    Sass & Hood, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Max Hecht, appellee, v. Leopold Osterricher, appellant.
    Gen. No. 24,723.
    Action to recover damages for malicious prosecution. Judgment for plaintiff. Appeal from the Superior Court of Cook county; the Hon. Osear Hebei, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed with finding of fact.
    Opinion filed December 31, 1919.
    A. G. Dieus, for appellant.
    Israel Cowen, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Rosa Kaufman, executrix of the last will and testament of Joseph Kaufman, deceased, appellant, v. Eugene Gehm et al., appellees.
    Gen. No. 24,840.
    Claim against decedent’s estate. Judgment for claimants. Appeal from the Circuit Court of Cook county; the Hon. George P. Barrett, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 31, 1919.
    Rehearing denied January 13, 1920.
    H. B. Spurlock, for appellant.
    M. J. Riese, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    I. Lurya Lumber Company, appellant, v. James L. Mareno et al., appellees.
    Gen. No. 24,852.
    Bill to foreclose mechanic’s lien. Dismissal for want of equity. Appeal from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 31, 1919.
    Hyman Soboroff, for appellant.
    Edmund W. Froehlich, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Mary Grant, plaintiff in error.
    Gen. No. 24,914.
    Prosecution for larceny. Judgment of guilty. Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed December 31, 1919.
    S. A. T. Watkins, for plaintiff in error.
    Maclay Hoyne and Edward E. Wilson, for defendant in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court. .


text:
    Alice H. Greenleaf and Ida Greenleaf, executrices of the last will and testament of Sarah A. Greenleaf, deceased, appellees, v. Frances Loeffler, individually and as executrix of the estate of William Loeffler, deceased, and Frank Loeffler, appellants.
    Gen. No. 25,825.
    Suit by creditor’s bill and for appointment of receiver. Interlocutory order appointing receiver. Interlocutory appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed.
    Opinion filed December 31, 1919.
    Sidney S. Pollack, for appellants;' Leo H. Hoffman, of counsel.
    Harper E. Osborn, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    Alice H. Greenleaf and Ida Greenleaf, executrices of the last will and testament of Sarah A. Greenleaf, deceased, appellees, v. Frances Loeffler, individually and as executrix of the estate of William Loeffler, deceased, and Frank Loeffler, appellants.
    Gen. No. 25,826.
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed on authority of Greenleaf v. Loeffler, ante.

    Opinion filed December 31, 1919.
    Sidney S. Pollack,' for appellants; Leo H. Hoffman, of counsel.
    Harper E. Osborn, for appellees.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.


text:
    John Lussem, appellee, v. Leroy E. Wilson et al., appellants.
    Gen. No. 24,791.
    Suit to set aside and declare null and void an instrument purporting to be a will, and also an alleged gift made by decedent. Decree for complainant. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed December 31, 1919.
    John W. Leedle and William F. Hoig, for appellants.
    Harry H. Felgar, for appellee; G. Bernard Anderson, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.