text:
    Edwards Whitaker et al., v. Wabash, Chester & Western Railroad Company et al. Louisville & Nashville Railroad Company, Appellant, Intervener, v. J. Fred Gilster, Receiver of Wabash, Chester & Western Railroad Company, Appellee.
    Railroads, § 408

      —when lien for labor and materials is superior to lien of mortgage to secure bonds of railroad. A lien for labor and materials furnished in the construction of an interlocking switch and signals at a railroad crossing, which were necessary to the operation of the railroad constructing same, under a written contract within six months prior to the appointment of a receiver for such railroad, held to be a superior lien upon the corpus of the railroad property over that of a mortgage given to secure the bonds of the railroad, in a suit to foreclose such mortgage.
    Appeal from the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 13, 1917.
    J. M. Hamill and C. P. Hamill, for appellant intervener.
    H. Clay Horner, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

This is a proceeding by Edwards Whitaker et al., in equity to foreclose a mortgage executed by the Wabash, Chester & Western Railroad Company et al., upon its railroad property, and for the appointment of a receiver therein.

The appellant filed an intervening petition asking for the allowance of certain claims for labor and materials furnished by it in the construction of an interlocking switch and signals at the crossing of appellant’s road and the Wabash, Chester & Western Railroad, and by this petition it was sought to procure a superior lien to that of the mortgages upon the railroad property of said Wabash, Chester & Western Railroad Company, as being for labor and material furnished under written contract within six months prior to the date of the appointment of the receiver.

' In 1892 the Tamaroa & Mt. Vernon Railroad Company constructed a railroad from Chester to Mt. Vernon and filed a petition with the railroad and warehouse commissioners for leave to cross the L. & N. Railroad at grade. The commissioners granted permission to make this crossing but required that the crossing of the tracks be protected by a system of interlocking signals and switches, to be agreed upon by the parties and approved by the commissioners; the cost of the construction and expense of maintaining such device to be paid for by the Tamaroa & Mt. Vernon Railroad Company, and that after it was constructed the operating expenses to be divided equally between that company and the L. & N. Railroad Company. A system of interlocking switches was agreed upon by the railroad companies and the interlocking signals and switches were built as required by the commission by the Tamaroa & Mt. Vernon Railroad Company. On November 29, 1892, an order was issued by the commission approving the plant installed at said crossing, and required said device to be frequently inspected and that the same should be kept in first-class working order and good repair.

It appears that afterward the Wabash, Chester & Western Railroad Company purchased this railroad from the Tamaroa & Mt. Vernon Railroad Company, together with all its property, rights, privileges and franchises, including the interlocking plant and the obligations with reference thereto, which was received subject to the order of the commission and contract above referred to. It further appears that for some years prior to October, 1913, the said Wabash, Chester & Western Railroad Company operated the said railroad but failed to repair and keep in good condition the interlocking plant so that it became out of repair and had to be completely overhauled and put in good condition to protect the said crossing and make it safe for passengers, employees and freight transportation over the road. It further appears that the said Wabash, Chester & Western Railroad Company was not in a financial condition to repair and put said interlocking device in proper condition, so that it entered into a contract with the L. & N. Railroad Company to make the necessary repairs, for which it agreed to pay the expense thereof not to exceed $2,000, which limit was afterwards extended so as to permit additional expense. Owing to delay in negotiations, assembling of materials, etc., the appellant, L. & 1ST. Railroad Company, did not begin actual work of overhauling said plant until June 18, 1914. It was at about this time that the receiver was appointed under foreclosure proceedings and took possession of the railroad and began operating it, so that a portion of the work of overhauling and repairing the interlocking plant was done after the receiver took possession of the railroad. The appellant, L. & N. Railroad Company, filed an intervening petition in said foreclosure suit setting forth the above facts in detail and alleging that it was necessary in order to prevent injury to passengers, employees and property of all persons transported over the railroads of the Wabash, Chester & Western Railroad and the L. & N". Railroad to overhaul, reconstruct and repair the said interlocking plant. To this intervening petition the appellee filed an answer admitting that the work and material furnished was necessary to the operation of the Wabash, Chester & Western Railroad and were necessary repairs of the interlocking crossing mentioned in the intervener’s petition, and submitted to the court for its determination the question as to whether the amount properly due under said contract should be a lien upon the railroad property as prayed for. Upon a hearing a decree was granted allowing appellant the amount of $2,600, but denied its right to a prior lien over the mortgage lien of appellee.

Under the assignment of errors made by the appellant, L. & N. Railroad Company, there is but a single question presented for the determination of this court and that is: “Did the court err in holding that the lien of appellant intervenor, for labor and materials furnished, was not a preferred one and had not priority over the lien of the mortgage bondholders and should not be paid out of the corpus of the property?” It clearly appears from the allegations of the intervening petition and the admissions contained in appellee’s answer thereto, and the evidence, that the materials furnished and the repairs made by the intervening petitioner were necessary for the operation of the Wabash, Chester & Western Railroad, for the safety of passengers and the transportation of freight over said road, and that unless such repairs were made it would interfere greatly with the operation of the road and might result in injury to passengers. It was under these conditions that the contract was entered into between the intervening petitioner and the Wabash, Chester & Western Railroad Company to repair this plant and put it in proper condition for the proper operation of the road and safety in the transportation of passengers and freight. It further appears that the expense incurred by the intervening petitioner in the making of said repairs and reconstructing said plant was incurred within six months prior to the appointment of the receiver herein. It is insisted by counsel for appellee that while these repairs were necessary for the proper operation of this road that it could not be made a prior lien to its mortgages, and that while it may have been paid out of the earnings it could not be paid out of the proceeds of the sale, or the corpus of the property. Quite a number of authorities have been cited by counsel for appellee in support of this contention, some of which seem to support this view and others not. The case most relied upon, however, is that of Gregg v. Metropolitan Trust Co., 197 U. S. 183. We have examined this case and while the majority opinion holds that where there has been no diversion of the income by the bondholders, that in general a decree would not be granted requiring the payment of supplies furnished. within six months before the receiver was appointed, out of the corpus of the fund, but in distinguishing that case from others before decided, apparently taking the other view of the question, the court says fin referring to the allowance in other cases): “The ground of such allowance as was made was not merely that the „ supplies were necessary for the preservation of the road, but that the payment was necessary to the business of the road.” There was also a very strong dissenting opinion by three of the judges written in that case, in which the authorities were reviewed and a different conclusion was reached by the dissenting judges. In the case of Central Trust Co. of Illinois v. Chicago, A. & N. Ry. Co., 232 Fed. 936, the court said, in commenting upon the effect to be given to the Gregg case, above referred to: “It is true that it is said in the Rodger Ballast Car Company case [83 C. C. A. 403], and in the Chicago & Alton Railroad Company case [141 C. C. A. 64], that the rule of the earlier cases in the Supreme Court has been narrowed by the decision in Gregg v. Metropolitan Trust Co., 197 U. S. 183, 25 Sup. Ct. 415, 49 L. Ed. 717. But in none of these cases has it been denied that the ordinary current expenses of operation necessary to keep the road in a safe condition to be operated and protect the business of the road may be paid from the corpus of the property when the income thereof is insufficient to pay such expense in preference to prior recorded liens thereon. Miltenberger v. Logansport Ry. Co., 106 U. S. 286,” and other cases. In the case now under consideration,, by the terms of the contract entered into between the intervening petitioner and the Wabash, Chester & Western Railroad Company, it was provided that as the work was done and the expense incurred the bills should be paid, and that in case of failure to pay the same within thirty days that the intervening petitioner had a right to institute suit at • once for the collection of such bills, and it also appears that the repairing of this device was necessary to enable the Wabash, Chester & Western Railroad Company to conduct its business, and it seems to us, upon a careful reading of the case of Gregg v. Metropolitan Trust Company, supra, which goes the furthest of any case that we have seen, that this does not even preclude the appellee from its lien and satisfaction out of the corpus of the property. Even if this case should be construed as holding that the claim now under consideration was barred from participating in the corpus of this fund, we do not think it is binding upon this court, inasmuch as this question was presented to the Supreme Court of the State of Illinois in the case of St. Louis, A. & S. R. Co. v. O’Hara, 177 Ill. 525, where it was held that, for necessary repairs furnished within six months, O’Hara was entitled to priority over the bondholders. In that decision the cases of Fosdick v. Schall, 99 U. S. 235; Quincy, M. & P. R. Co. v. Humphreys, 145 U. S. 82, were referred to as supporting the contention of the bondholders, and the Supreme Court in the decision of that case, at page 529, says: “In support of the contention that the Circuit Court erred in holding that the claim for material was a preferred one and had priority over the mortgage to' the Atlantic Trust Company, counsel have cited quite a number of decisions by the United States Supreme and Circuit Courts. We do not regard them as supporting the contention. The leading ones are Fosdick v. Schall, 99 U. S. 239, and Quincy, M. & P. R. Co. v. Humphreys, 145 U. S. 82, and they are valuable to us in determining the question for the sole reason that they announce the rule that where railroad property is in charge of a court for administration as a trust fund for the payment of incumbrances, it may declare a lien, prior in right to that of existing mortgages, in favor of claims accruing within a reasonable time prior to the application on account of wages, supplies and materials necessary to keep the road a ‘going concern.’ ” It seems to us under the evidence and admissions contained in this record that it was necessary to repair this interlocking plant in order that the road might be kept “a going concern.” Counsel for appellee insist that the O’Hara case, above referred to, is not controlling and does not cover the question involved in this case. We think that counsel are mistaken in this. The language of the opinion clearly shows that the repairs and material furnished were given a prior lien over the mortgages, and the dissenting opinion places their dissent squarely upon the fact that they did not concur in giving to the claim of O’Hara preference over the mortgage debt, and displacing the priority of the mortgage lien created by the contract; and they expressly say that there was no diversion of income and no ground for giving such preference, except that the mortgaged property was improved. It appears to us that the O’Hara case is in point and controlling in this case. It was necessary and proper to keep this railroad a “going concern,” and the property, if so kept, would be far more valuable upon a foreclosure sale than if it had been allowed to become out of repair, unsafe for the carrying of passengers and freight, and when the intervening petitioner for the purpose of keeping the road in repair furnished the means and made the necessary repairs, it seems to us that it would be inequitable and unjust not to allow them a fair compensation for the money so expended. While in general these repairs should be paid out of the earnings of the property, yet the better rule seems to be that it is not necessary that there should be a diversion of these earnings in order to give the relief, for it is equally as important to keep the road a going concern whether there has or has not been such diversion. Pomeroy on Equity Jurisprudence, vol. 5, sec. 204.

We are of the opinion that the question here presented for our consideration has been determined by the Supreme Court of Illinois in the O’Hara case, above referred to, and that the conclusion there reached is just and equitable and should be followed. The decree of the Circuit Court is reversed and the cause remanded with directions to enter a decree in conformity with this opinion.

Decree reversed and cause remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice McBride

license: Public Domain

text:
    Edwards Whitaker and the St. Louis Union Trust Company, Appellees, v. Letcher Irons, Impleaded with Wabash, Chester & Western Railroad Company, Appellant.
    1. Taxation, § 636

      —who may void tax title to mortgaged premises. A mortgagee has the same right to void a tax title to the mortgaged premises as the owner of the premises.
    2. Taxation, § 637*—what constitutes sufficient attack upon validity of title of purchaser at tax sale to warrant decree of foreclosure. Where the purchaser at a tax sale was made a party to a suit to foreclose a mortgage upon the premises as claiming some interest but alleging same to be not a real interest therein, to which suit the purchaser filed answer setting up title to the premises under such sale, and issue was joined thereon and testimony taken as to the regularity of the sale, and propriety of the levy and assessment, held that the attack was sufficient upon the validity of the purchaser’s title to sustain a decree of foreclosure relieving the premises from the claim or interest of the purchaser.
    3. Appeal and error, § 1184*—when court will not look to ascertain if forms of pleading were duly observed in reaching conclusion. Where a question at issue is fairly presented by the pleadings and evidence and a decree obtained upon such question, it is sufficient to determine the rights of the parties as to the matters in controversy and settled by such decree, and the court will not look to ascertain if the forms of pleading were duly observed in reaching a conclusion.
    4. Taxation, § 642*—what are prerequisites to rendition of judgment setting aside tax certificate. Before any judgment or decree can be rendered setting aside a tax certificate, the party' seeking such relief must pay all taxes and legal costs, even though there be irregularities in the levying and collecting of the taxes.
    Appeal from the Circuit Court of Randolph county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    William T. Pace and G. Gale Gilbert, for appellant.
    H. C. Horner, for appellees.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

This is a bill in chancery to foreclose two trust deeds executed by the Wabash, Chester & Western Railroad Company on all and singular the entire railroad of this company in the State of Illinois, following with a particular description as to the terminals of said road, and including also all the appurtenances, franchises and privileges owned by the said railroad. One of said trust deeds was executed to the predecessor of Edwards Whitaker in trust and made to secure the payment of a bonded indebtedness of $300,000; the other was made to the appellee St. Louis Union Trust Company and was made to secure bonds to the amount of $390,000. The railroad passed through the county of Jefferson in the State of Illinois, and such part of it as lay within the county of Jefferson was sold for taxes on June 10, 1914, and purchased by the appellant Letcher Irons for the amount of $2,907.02, for which a certificate of purchase was issued and delivered to the appellant Irons. Qn July 14, 1914, the appellees filed in the Circuit Court of Randolph county a bill to foreclose said mortgages because of the nonpayment of interest upon the bonded indebtedness as was provided in said trust deeds should be done in case of failure to pay the interest. The appellant was made a party defendant to this proceeding and the following allegation made with reference to his rights: “Complainants further represent that one Letcher Irons claims some interest in said railroad property, or some part thereof, the nature of which claim is to complainants unknown, but which interest is not real. ’ ’ To this bill the appellant Irons filed an answer in which he set forth the tax sale above referred to, his purchase of the property in Jefferson county at such tax sale, and the issuing of such certificate of purchase thereon, for which he paid the said amount of $2,-907.02, and averring that he had an interest in said property for the amount of the taxes so paid by him. To this answer the appellees filed a .replication and the cause was referred to the master and testimony taken by the appellant and appellees; the appellant introducing evidence tending to show that the property sold for taxes in a regular manner and under proper proceedings, and the appellees introduced evidence tending to show that a small portion of the taxes included in said sale were not levied as required by law, and that the sale was made without any precept or authority of law to make the same. A decree of court was rendered finding: “That said sale of said railroad property for taxes Was absolutely null and void, and defendant Irons obtained no interest or right of any kind in said railroad property by attempting to purchase at said void sale; and the court further finds that it is not equitable that the defendant Letcher Irons be reimbursed in this suit the amount of legal taxes paid by the purchase money that he expended at said void sale, and it is therefore ordered and adjudged that complainants have judgment against said Letcher Irons for the complainants ’ costs in this suit arising from the answer and defense of said Irons, to be taxed by the clerk of this court.” The appellant excepts to this finding and decretal order of the court and seeks to reverse such order by this appeal.

The appellees by this proceeding are seeking a foreclosure of the mortgages mentioned, and made the appellant Irons a party for the purpose of barring him from any claim or right in and to said property. The answer discloses his rights and interest in the property, to which a replication was filed by the appellees and.the rights and interest of appellant Irons was disputed.

It is contended by counsel for appellant that his rights in and to this property are protected in equity and by section 224 of the Eevenue Act (J. & A. 9443), and that the appellees could not proceed to set aside his interest without paying or refunding to appellant all taxes and costs made by him, which was not done or attempted to be done. The appellees insist that they had asked no relief as to the appellant Irons and were not seeking to set aside his tax deed and were not bound to refund the taxes advanced by him; and it is insisted that the statute invoked can have no application to the facts as the suit was a proceeding to foreclose a trust deed and in no manner sought to set aside the tax deed, and cites in support of this contention the case of City of Chicago v. Pick, 251 Ill. 594.

We have examined the pleadings and believe that the effect of making Irons a party and of joining issue with him upon his answer, in which he set forth his rights and interests, and the taking of testimony with reference to the regularity and irregularity of the sale, the failure to properly levy the tax, the including of taxes in the sale that were not properly assessed, all tended, in our opinion, to attack the. validity of Irons’ claim to this property and to obtain for appellees a decree of foreclosure relieving the property of any claim or interest that Irons might have therein. The decree rendered included this feature of the pleadings and evidence, and the court found that he had no interest and that his claim was null and void. The mortgagee had the same rights to void the tax title and deprive appellant of his rights in such property as the owner had. Miller v. Cook, 135 Ill. 190.

We do not believe that the case referred to of the City of Chicago v. Pick, supra, is in point in this case for the reason that this was a proceeding to condemn property, and the tax title was at no time involved except so far as it concerned the distribution between the defendants to that proceeding, and was not instituted by the owner of the land, and the court in rendering the opinion says, concerning the difference between that case and those arising under section 224 of the Bevenue Law, that: “The rule applied in that class of cases does not, in our opinion, extend to cases like the one at bar for the reason that the condemnation proceeding was not instituted by the owner of the land but was commenced against him without his consent, for the purpose of condemning his land for a public use. The holder of an invalid tax title is only entitled to reimbursement when his tax title is attacked and set aside in a proceeding brought for that purpose by the owner of the land,” and authorities there cited. It appears to us that if the question at issue is fairly presented by the pleadings and evidence and a decree obtained upon the point at issue, that this would be sufficient to determine the rights of the parties as to the matters in controversy and settled by such decree, and the court would not look to ascertain if the forms of pleading were duly observed in reaching a conclusion. The Supreme Court said, in the case of Gage v. Consumers’ Electric Light Co., 194 Ill. 39, that: “All that is required in respect of adverse claimants or their titles is that such claimant shall be named in the petition and made defendant. Nothing-more is required to give the court jurisdiction, under the statute, to investigate all claims of title to the premises, and by its decree establish and confirm the title in the person in whom it is found to be vested, and to make all such orders, judgments and decrees as shall be necessary to that end.” It is true this decision was rendered under the Burnt Becords Act, but we can see no reason why the principles invoked there should not be applied to the case at bar, as the effect of this decree is to deprive appellant of his rights in and to the property in question. It seems to us clear from the decisions of our court and the statute invoked that before any judgment or decree can be rendered setting aside a tax certificate that the party seeking this relief must pay all taxes and legal costs even though there be irregularities in the levying and collecting of the tax. Union Trust Co. v. Weber, 96 Ill. 346; Cotes v. Rohrbeck, 139 Ill. 532. The doctrine requiring a party to pay all taxes and legal costs before such claimant shall have the benefit of a decree or' judgment setting aside any tax deed is well settled both by the statute and repeated decisions of our court, made prior to as well as since the enactment of said statute. Cotes v. Rohrbeck, 139 Ill. 532; Ward v. Clendenning, 245 Ill. 206; Strebel v. Glos, 271 Ill. 65. The courts have acted upon the principle that the property should be required to pay its just proportion of the tax levied, and when a tax has been levied, sale made and the tax paid, that before any one having an interest in the property could set aside the rights acquired under such a levy they should reimburse the purchaser the tax paid, and we can see no reason why this doctrine does not apply as well to a tax certificate as to tax deeds.

We are of the opinion that the Circuit Court erred in not requiring the appellees to pay to appellant his taxes and legal costs before granting them a decree herein, and in rendering judgment against appellant for costs.

For the reasons above set forth, the decree of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    In the Matter of W. A. Miller and Louise E. Miller, Appellants, v. George C. Lindemann, Guardian, Appellee.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Witnesses, § 124

      —who are not competent witnesses in action against guardian. The mother and the stepfather of minor wards are not competent witnesses in an action by them against the guardian to recover for board, clothing, etc., furnished by them to the minors.
    2. Guardian and ward, § 28*—what expenditures from, income may he made hy guardian. A guardian may expend from the income of his wards’ property such amount as may be necessary and proper for the suitable support of the wards to be determined by the guardian or by the court having charge of the fund.
    Appeal from the Circuit Court of St. Clair county; the Hon. Geobge A. Cbow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Petition by W. A. Miller and Louise E. Miller, petitioners, against George C. Lindemann, guardian of the estate of Ida L. Lindemann, Helen L. Lindemann and Lloyd C. Lindemann, minors, defendant, to recover for board, clothing, etc., furnished to defendant’s wards. Prom an order denying the petition, petitioners appeal.
    W. L. Coley, for appellants.
    William H. Pfingsten, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

3. Guardian and ward, § 16*—when notice of claim of compensation essential to liability of guardian for care of ward. Where the stepfather of minor children, on his marriage to their mother, took them into his family and cared for them, although not formally adopting them in law as his children, held that he could not recover from their guardian for such care without having first notified the guardian of his refusal to care for them without compensation.

4. Guardian and ward, § 16*—when reasonable pay for care of ward may be recovered. Upon neglect of a guardian to provide a place for his ward or make a contract in regard to compensation for care of the ward after having notice from the person caring for the ward that he would not continue doing so without compensation, held that such person would be entitled to recover reasonable pay for the keeping of the ward after such notice.

5. Guardian and ward, § 61*—when evidence insufficient to show notice of claim of compensation for care of wards. Evidence held insufficient to show any notice by petitioners to defendant that they would not continue caring for defendant’s wards without compensation.


text:
    Frank Paskewie, by H. C. Gerke, Guardian, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.
    1. Judgment, § 654

      —what plea in action on at common law is insufficient. In action on a judgment, a plea merely of payment without including also satisfaction of the judgment was insufficient at common law.
    2. Judgment, § 654*—when plea is insufficient in action on. In action on a judgment for a certain sum, a plea that defendant had paid plaintiff such amount of damages recovered by plaintiff, without averring that the amount was received by the plaintiff in satisfaction and discharge of the judgment or was so applied, held insufficient.
    3. Judgment, § 636*—when plea of satisfaction is insufficient. In action on a judgment recovered by a minor suing by next friend, a plea of payment to the attorney of record for the next friend and satisfaction and discharge of the judgment by such attorney, held insufficient.

      4. Guardian and ward, § 52

      —who may satisfy judgment recovered by minor suing by next friend. Satisfaction and discharge of a judgment recovered by a minor suing by next friend can only be made by the regularly appointed guardian of such minor.
    5. Judgment, § 636*—when plea of satisfaction of judgment recovered by minor suing by next friend is insufficient. In action on a judgment recovered by a minor suing by next friend, a plea of payment to the father of such minor in satisfaction and discharge of the judgment and that the father had applied the money in supplying the minor’s necessaries of life, held insufficient, as the father was guardian only of the person of the minor and not of the minor’s property.
    Appeal from the Circuit Court of Madison county; the Hon. J. P. Gtt.TiTtam, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Williamson, Burroughs & Ryder, for appellant.
    Hiles & Simpson, for appellee.

      See Illinois Notes Bierest, -Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The appellant filed four pleas to the declaration in this case. A demurrer was interposed and 'sustained to each of the pleas and the áppellant having elected to stand'by his pleas judgment was rendered for the appellee, which judgment it is sought to reverse by this appeal.

It appears from the record in this case that the appellee, Prank Paskewie, a minor, by John Paskewie, recovered a judgment against the appellant on the 10th day of August, 1914, for the amount of $444. It is claimed by the appellee that this judgment has not been paid and this suit was brought to the March term, 1916, of the Circuit Court of Madison county to recover a judgment against, appellant based upon the former judgment. To this declaration the appellant filed four pleas. The first one avers that on August 10, 1914, the defendant paid to the plaintiff the said sum of $444. The second plea avers that on August 10, 1914, the defendant paid E. W. Kreitner, the attorney of record, the amount of $444 and costs. The third plea avers that on August 10, 1914, the defendant paid E. W. Kreitner, who was then attorney at law and attorney of record for plaintiff in said former suit, the said amount of $444 and costs, and that said Kreitner satisfied and discharged of record the judgment sued upon in this case. The fourth plea alleges that on August 10, 1914, the defendant paid to Joseph Paskewie, the father of plaintiff, the said sum of $444 and costs as full payment and discharge of the judgment; that the plaintiff was a minor and the father accepted the same and that the plaintiff was living as a member of the family of said father, and that the said sum was expended for physician’s bills, care, maintenance, education and other necessaries, for the sole use of the plaintiff, and that at that time the plaintiff had no legally appointed guardian. To each of these pleas a demurrer was interposed and sustained.

It will be observed that the first plea simply alleges payment to the plaintiff of the said sum of $444, damages recovered by the plaintiff. The plea does not aver that it was received by the plaintiff in satisfaction and discharge of the judgment or that it was so applied. We do not understand that a party can relieve himself of an obligation to a minor by paying the same to the minor, if the minor chooses at any time to avoid such payment. If, however, payment had been made to the plaintiff and an entry of satisfaction made by him upon the record, it might be that before an action could be brought to recover upon that record that some proceeding would have to be instituted by the minor to get rid of that satisfaction before bringing an action upon the record. If the payment was made to him even with an agreement that he would enter satisfaction upon the record, and he failed to do so, we know of no authority that could compel him to enter such satisfaction; but this plea does not aver satisfaction and it is not necessary for us to determine what the effect of such entry would have upon the judgment. It appears by many authorities that at common law a mere payment is not a sufficient plea, but it must also include the satisfaction of the judgment. It is said by the Supreme Court in the case of Harding v. Hawkins, 141 Ill. 583: “It seems that at common law, prior to the statute of 4th Anne (chapter 16, sec. 12), payment after the day could not be pleaded to an action for money due by deed or other specialty. (2 Saunders, 48a, note h; 2 Black on Judgments, sec. 975.) By the statute referred to, not in force in this State, it is provided, among other things, that if the defendant had paid the judgment he might plead payment in bar of the action upon the judgment. It would seem that we have no equivalent legislation in this State.” In the same case the Supreme Court says, however, that it is not intended to be understood as holding that where a judgment has been paid in full that the plea of payment may not be interposed as a bar to an action on such judgment, but declined to decide that question as it did not necessarily arise therein. Independent of this question we are of the opinion that the plea as it stands is insufficient.

The second and third pleas each aver payment to E. W. Kreitner, attorney of record in the former suit, and the third in addition avers that Kreitner satisfied and discharged the said judgment of record. It is disclosed by this record that the plaintiff was a minor and the question presented by these pleas is, “Did the appellant knowing the plaintiff to be a minor have the right to make payment to the attorney in that suit who was prosecuting and acting for the next friend?” If he had the right to receive the money and discharge the judgment then the pleas would be good, but if he did not have the right and authority to receive the money he would have no right to discharge the judgment. Black on Judgments, sec. 986, says: “Payment of a judgment must be made to the real owner of the judgment or to some one authorized in law or in fact to receive the money for him.” This brings us to a discussion of the question as to whether or not the attorney was authorized to receive this money. “According to the weight of Authority, a guardian ad litem or next friend of an infant in whose favor a judgment has been rendered is not authorized to receive the amount, or receipt for, discharge or enter satisfaction of the judgment, nor can this be done by an attorney employed by the guardian ad litem. Where there is no one authorized to receive the amount of a judgment in favor of an infant, it is proper to direct that the money, when collected, shall be paid into court, subject to the order of the legally constituted guardian when such an one shall appear, or to remain in court until the infant arrives at majority.” Cyc. vol. 22, p. 704. Where a party has possession of money or property or is indebted to a minor, it is his duty to see that the money should be placed in the hands of the lawfully constituted guardian, or at such a place as the court might direct for such a guardian when appointed. Perry v. Carmichael, 95 Ill. 519. In the bringing of a suit by a minor, any oile may appear as next friend for such minor and employ the attorney to prosecute the suit. “The attorney does represent the infant, it is true, but he represents him through the mediation of the guardian from whom he directly receives his appointment and derives his authority.” Greenburg v. New York Cent. & H. River R. Co., 210 N. Y. 505, 104 N. E. 931. As we view it, the exact question presented in this case arose in the Oreenburg case, above referred to. There the court says: “The question certified for our determination is whether under these circumstances the satisfaction of judgment given by the original attorney for the plaintiff was valid in law as a complete discharge of defendant’s liability.” And there the court decided that the infants were the wards of the law and that they could not be deprived of their rights by the acts of attorneys who might prove dishonest or careless, or by the act of a next friend whose motive might be to promote his own interests instead of that of the minors. In this case the minor could not have brought the suit in his own name but it must be instituted by a guardian or a next friend. An attorney was employed to bring the suit. The infant had no power to employ or contract with such attorney, and it was necessarily done by the next friend. The attorney, in fact, acted under the control and direction of the next friend and represented the infant’s interests through such friend. It is true that this question is one of first impressions in the courts of this State, yet many decisions have been decided by courts of other States holding contrary views, some sustaining the right of an attorney of a court of record to receipt for and satisfy the judgment, and others denying this right and insisting that the guardian alone who has given bond shall receive and receipt for a judgment rendered in favor of the minor. Appellant insists that the case of State of Washington ex rel. Lane v. Ballinger, 41 Wash. 23, 3 L. R. A. (N. S.) 72, lays down the better doctrine, in which it holds that an attorney of record has the right to receive the money and discharge the judgment for a minor. We have examined this case with some care, and while it holds that an attorney employed by the next friend may receive the money and discharge the judgment, but we think the court was influenced in this view to some extent by reason of a statute in force in the State of Washington giving to the attorney of record the power “To receive money claimed by his client in an action or special proceeding during the pendency thereof, or after judgment upon the payment thereof, and not otherwise, to discharge the same or acknowledge satisfaction of the judgment.” It seems to us that under the rules governing the courts of law in this State, with reference to the rights of infants, that the courts are disposed to use care for the protection of the interests of said infants, and that it would not be consistent with such uniform doctrine to permit any one whom an indiscreet infant might select as a next friend, or that such friend might employ as an attorney, to secure a judgment and then permit such next friend or attorney, without reference to his responsibility, to collect such judgment, satisfy the same, appropriate the money to his own use, if he chose so to do, when the rights of the infant and of the attorney as well could be made safe by simply appointing a guardian who would be required to give bond and could receive the money and discharge the judgment without hazarding the rights of any one. The author of the L. R. A. series of reports, wherein the Ballmger case, swpra, is reported, in a footnote to that case, says: “The weight of authority in the United States, in the absence of statute, is against the authority of a guardian ad litem, or next friend of an infant to receive payment of and satisfy a judgment recovered in behalf of the infant. * * * That he cannot receive payment of it, but such payment must be made to the regular guardian or to the court.” “In numerous cases it has been held that a next friend has no authority to collect the proceeds of a judgment recovered by him and to enter satisfaction thereof, but that only a regularly qualified guardian of the infant can do so. Where there is no general guardian, the proceeds of the judgment should he paid into court until a guardian is regularly appointed, or until the infant reaches majority.” Encyc. Pl. & Pr. vol. 14, p. 1037. We have a statute in' this State providing for the appointment of guardians and requiring them to settle all accounts of his ward, and demand and sue for and receive in his own name as guardian all personal property of and judgments due the ward. Section 17, ch. 64, Hurd’s Rev. St. (J. & A. ¶ 6014). The attorney could have no greater rights or power than the next friend by whom he was employed, with reference to the proceedings in court.

The fourth plea avers that the money was paid to the father and used by him in supplying the infant with the necessaries of life. While it is true the father had control of the infant, but he had no power or control and management of the infant’s estate. We have a statute especially providing that, while he may be the guardian of the person of the child, the guardian provided by the court shall take charge of the property. The using of this money in supplying the child with food and clothing and necessaries of life, as set forth in the plea, would be a use of the child’s money to discharge the obligations that by law devolved upon the parent. We cannot see that such averments add to the validity of his plea.

After a careful consideration of this case, we are of the opinion that the debt adjudged to be due the appellee from appellant could not be discharged by paying the same to. an attorney who had represented the minor through a next friend, or by payment to the next friend; that it was the duty of appellant to pay this money to the legally appointed guardian of the child or into court, there to be held and disposed of by the court, and we believe that the court commit-. ted no error in sustaining the demurrers to the several pleas of the appellant, and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    Charles W. Young, Appellee, v. Abner C. Barr, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    Brokers, § 90

      —when evidence sufficient to show plaintiff to he procuring cause of sale. A finding that plaintiff was the procuring cause of the sales of certain lands belonging to defendant, held not against the manifest weight of the evidence.
    Appeal from the City Court of Alton; the Hon. James B. Dunnegabt, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Rehearing denied June 16, 1917.
    Statement of the Case.
    Action by Charles W. Young, plaintiff, against Abner C. Barr, defendant, to recover for services rendered in effecting sales of certain lands. From a judgment for plaintiff for $250, defendant appeals.
    B. J. O’Neill, for appellant.
    J. V. E. Marsh, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    W. S. Alcorn, Appellant, v. Elbert Epler, Appellee.
    1. Deeds, § 2

      —applicability of statute governing form to local instruments only. The Illinois statutory form of warranty deed and the statutory covenants applicable to such form, are limited to the conveyance of lands situated in Illinois.
    2. Conflict of laws, § 45*—what law governs validity of conveyance of foreign land. Whether a conveyance of' land which has been duly recorded in a foreign State, where the land is situated, is a nullity, even upon the ground of fraud, depends upon the local laws of such State.
    3. Conflict of laws, § 45*—when court has no power over foreign lands. A court of one State has no power to annul a conveyance of lands situated in another State.
    4. Conflict of laws, § 45*—what law governs covenants in deed to foreign land. Specific covenants cannot be included within a general warranty contained in a deed of conveyance of lands situated in another State unless the laws of such other State provide that such covenants shall be so included.
    5. Covenants, § 33*—when declaration in action based■ on general warranty in deed of foreign land is insufficient. In an action of covenant based upon a general warranty contained in a deed of conveyance of lands situated in another State, and claiming a breach of an implied specific covenant, the declaration held fatally defective in not alleging a law of such other State prescribing that such specific covenant shall be so included in a general warranty.
    6. Covenants, § 11*—what force given deed containing general warranty of lands in foreign State. A deed of conveyance containing a general warranty of lands situated in another State, held entitled at most to'the same force and effect it would have at common law, where no law of such State prescribing that a specific covenant should be included in a general warranty was alleged.
    7. Covenants, § 11*—when specific covenants not implied from words in statutory warranty deed. No specific covenants are implied by the common law from the term “conveys and warrants” used in the Illinois statutory form of warranty deed.
    Appeal from the Circuit Court of Edwards county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.

      Howard P. French, for appellant.
    Allen E. Walker, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

This was an action of covenant brought by appellant against the appellee in the Circuit Court of Edwards county. The Circuit Court sustained a demurrer to the declaration and rendered judgment against plaintiff for costs.

The appellant in his declaration alleges that Elbert Epler, the defendant herein, on the 13th day of August, 1913, claimed to be the owner of the premises hereinafter described, and being so seized and possessed of said premises on the day aforesaid, under his hand and seal executed a certain warranty deed by which the said Elbert Epler for and in consideration of the sum of $4,800 in hand paid, with general covenants of warranty, including the covenant, that at the time of the making and delivering of said deed he was lawfully seized of an indefeasible estate in fee simple in and to the premises therein described, and had good right and full power to convey the same to the following described property, describing several tracts of land situated in the county of Newton and State of Texas. And then avers that at the time of the execution of the said deed the defendant' was not lawfully seized of an indefeasible estate in fee simple of the premises therein described and did not have good right and full power to convey the same, and that by means of the premises the plaintiff was greatly injured and damaged. To this declaration the appellee interposed a general and special demurrer, reciting that by the declaration and recitals of the deed therein contained it appears that the deed in question was executed in Illinois between parties in this State to lands located in the State of Texas, and the declaration does not aver what the laws of the State of Texas are respecting conveyances, such as the one in question.

It will be observed that the suit is brought upon a general covenant of warranty, which the pleader alleges includes the covenant that at the time of the mating and delivering of said deed the defendant was lawfully seized of an indefeasible estate in fee simple in and to the premises therein described, and had good right and full power to convey the same. Appellant in his statement and argument says that, “The deed declared on was a regular Illinois form of warranty deed.” The contention of appellant is that as the deed was executed in Illinois and upon a statutory form for warranty deeds of this State, that by the use of the general term, “conveys and warrants,” that this includes the implied covenants prescribed by the statute of Illinois, and that they were personal covenants and are to be governed by the lex loci contractus, and that being a personal covenant and entered into in the State of Illinois, that a right of action existed against the defendant for a breach of these covenants. In support of this doctrine he cites the case of Tone v. Wilson, 81 Ill. 529, which holds that covenants of seizin, and of good right to convey, are broken at the time the deed is delivered, are present covenants and do not run with the land. It will be observed that the ¿ttitude of appellant is that as the deed was an Illinois statutory form and "executed in Illinois, that all of the covenants contained in the statute should be read into this deed. We cannot agree with this contention, as the statutory form of warranty deed and the covenants sought to be included in such form of deed is, in our, judgment, limited to the conveyance of lands situated in Illinois and could not be extended to lands in other States. The form of the deed prescribed by statute restricts the conveyance to lands “Situated in the County of-in the State of Illinois. ’ ’ Any attempt by the Legislature of the State of Illinois to prescribe what particular covenants should be included under general terms in other States would be null and void, as every State prescribes its own rules for the conveyance of its lands. “It is a well-settled principle of law that the jurisdiction over real property is local and appertains to the State wherein the property lies, and that title thereto passes only by conformity to the laws of such State.” Borer on Interstate Law (2nd Ed.), 285. “The validity and construction, as well as the force and effect, of all instruments affecting the title to land, depend upon the law of the State where the land is situated.” Harrison v. Weatherby. 180 Ill. 418. Whether a conveyance of land which has been duly recorded in the State where the land is situated is a nullity even upon the ground of fraud depends upon the local laws of such State. The court of another State has no power to annul such a conveyance. Cooley v. Scarlett, 38 Ill. 317. We are of the opinion that the specific covenants sought to be read into the general warranty for the conveyance of lands in the State of Texas could not be included under a general warranty or a general clause such as is contained in our statutory form of deed, unless there was a law in the State of Texas that prescribed that such specific covenants would be included under such general terms, and if there is a statute or law in the State of Texas prescribing such specific covenants arising from the use of general terms of the character here used, it should have, been so stated in the declaration. The pleader should have alleged that out of the terms used by the laws of the State of Texas the specific covenants relied on arose in favor of the appellant, but he failed to make any such statement and failed to make any averment with reference to the laws of the State of Texas, which seems to us must be fatal to his right of recovery. If the deed had contained a specific covenant such as is claimed to have been implied in this case, a different question would be presented for consideration. The most that the courts of this State could do would be to give a contract of the kind here declared upon the same force and effect that would be given to it at common law. Tinkler v. Cox, 68 Ill. 119. There are no expressed covenants in the deed in question and none can by common law be implied from the language used. Wheeler v. Wayne County, 132 Ill. 599.

We are further of the opinion that this is not an open question in this court. We think it was settled adversely to the contention of appellant in the case of Crane v. Blackman, 126 Ill. App. 631, and we' see no reason for changing our views of the conclusion there reached.

We are of the opinion that the Circuit Court did not err in sustaining the demurrer to plaintiff’s declaration, and the judgment of that court is affirmed.

Judgment affirmed.


text:
    Hector Beveridge, Appellee, v. Illinois Fuel Company, Appellant.
    1. Appeal and error, § 1265

      —when presumed that employer elected not to come within Workmen’s Compensation Act. Where the declaration, in an action by an employee against his employer to recover damages for injuries sustained while in the employer’s work, alleged the defendant had elected not to be bound by the Workmen’s Compensation Act and the plaintiff failed to prove the service or posting of the notice required by the act, but the defendant presented defenses not allowable by the act, held that the court on review would be justified in assuming from the attitude and defenses of the defendant that he had elected not to come under the act.
    2. Appeal and error, § 1665*—when defendant may not complain of lack of jurisdiction. Where defendant made no objection to the jurisdiction of the court in an action against it by its employee to recover damages for injuries sustained while in defendant’s employ, held that defendant waived its right to insist, after verdict, that the court was without jurisdiction to try the action.
    3. Pleading, § 100*—what is matter of inducement not denied by general issue. An averment in a declaration, in an action by an employee against his employer to recover damages for injuries sustained while in the defendant’s employ, that the defendant had elected not to be bound by the Workmen’s Compensation Act, held a matter of inducement not denied by a plea of the general issue.
    4. Evidence, § 410*—when opinions of physicians as to nature and effect of injuries are admissible. Where certain medical witnesses testified i to treatment of plaintiff after his injuries were received, as to the nature and effect of such injuries, and that they believed such injuries were permanent, but were not sure, held that such opinions were not mere conjectures but based upon facts and conditions observed, and admissible in evidence.
    5. Appeal and error, § 457*—when objection as to evidence is too late. Where no objection was made on trial to the introduction of certain opinion testimony, held that an objection comes too late when first made on review.
    6. Mines and minerals, § 181*—when question for jury whether placing of jack against mine roof is proximate cause of injury from fall of roof. Where plaintiff was employed in defendant’s coal mine in the use of a certain coal-cutting machine which he used by placing a bracing jack against the roof, part of which fell upon and injured him, and such part had been observed the same day by the mine examiner to be “a little drummy” but had not been marked by him as dangerous, held that it was a question for the jury whether the placing of the jack against the roof was the proximate cause of the injury.
    7. Mines and minerals, § 181*—when question for jury as to what is proximate cause of injury to miner. Whether a mine examiner’s failure to properly mark and report a dangerous condition existing in a mine was the proximate cause of an injury to a miner, held to be a question of fact for the jury, notwithstanding the miner had actual notice of the condition.
    8. Mines and minerals, § 84*—what does not excuse owner from liability for wilful violation of statute. The fact that a mine examiner examined the roof of a mine, which afterwards on the same day fell upon and injured plaintiff, and found it, as he thought, to be only “a little drummy,” and did not mark as dangerous, held not to excuse the owner from liability for wilful violation of the statute, if the place was in fact dangerous and plaintiff was injured in consequence.
    9. Mines and minerals, § 182*—when existence of dangerous condition in mine is question for jury. Whether a dangerous condition existed in a coal mine where plaintiff was injured, held to be a question for the jury.
    10. Mines and minerals, § 152*—what is not subject of expert testimony. Whether a certain condition in a mine where plaintiff was injured was required to be marked dangerous by a mine examiner, held to be a question for the jury and not for expert testimony.
    11. Evidence, § 399

      —when conclusion of expert improper. It is not proper to permit a witness, even an expert, to give a conclusion upon a matter to be determined by the jury.
    Appeal from the Circuit Court of Randolph county; the Hon. Geobqe A. Crow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    R. J. Goddard and H. Clay Horner, for appellant.
    A. E. Crisler, for appellee.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

A judgment was rendered in favor of the appellee in this case for $7,500, to reverse which this appeal was prosecuted.

It appears from the record herein that the appellant was engaged in operating a coal mine in the county of Randolph, State of Illinois, and the appellee was engaged in running a machine used for cutting coal in said mine. The mine manager had directed appellee to cut underneath for a crosscut from room 20 to room 19, off of the south side of the seventh west entry of said mine. Room 20 was driven in from the entry to the south. The appellee had made a cut with his machine underneath the crosscut and had turned his machine to the face of his room and was engaged in cutting underneath the face of the room when the roof fell upon him and injured him. The machine used in that mine was of the length of about twelve feet and extends that distance back from the face of the coal, when in operation. It is about three and one-half feet wide and cuts what is called a board or run of that width and at a depth of about six feet. They began cutting on the left side of the room and as the boards were cut moved the machine to the right. In cutting, the machine has to be braced to prevent it from backing away from the coal. This was done in this mine by means of a jackscrew and socket and two iron pipes that were furnished appellee with the machine. When the machine was in operation the practice was, when cutting under the face of the room, to brace it in the roof by means of a jack that was fastened into the roof and held the machine to the coal when engaged in cutting. It appears that the appellee was about half through the making of his cut when the rock fell upon him. The rock that fell was about four by five feet and six inches thick and extended from the west side of the room eastward, and the south side of it was twelve feet north of the face, which was immediately back of the rear end of the machine where the plaintiff had to be in the operation of it. It further appears from the evidence that the mine examiner examined this room at about three o’clock a. m. of the day of the injury and found this identical rock, that fell and injured the plaintiff, to be “a little drummy,” but he did not mark the same as dangerous and made no report or record of its condition, and before the appellee began his work that morning the mine examiner heard the mine manager give appellee directions to cut this crosscut from room 20 to room 19, and knew that it would require the appellee to work under the rock that the mine examiner had found to be “drummy.” It was not questioned upon the trial that the machine was braced in the proper, usual and customary manner and thq only way it could be braced with the tools and equipment furnished by appellant. The appellee was of the age of thirty years and his earnings were $5 per day. The evidence tends to show that his injury was permanent.

The declaration in the case charges that a dangerous place existed in the top of room 20, composed of slate, white top and bastard rock; that there was a piece of white top and bastard rock five feet wide and six inches thick which was liable to fall; that it was defendant’s duty to have the room inspected and marked dangerous; that defendant wilfully failed to have it examined and marked and to make a record of such examination. The second count, after stating the facts as set forth in the first count of the declaration in a general way, charges that the defendant wilfully permitted appellee to enter and work in said room 20 while it was in a dangerous condition; and the third count, after the general averments, charges a failure upon the part of appellant to withhold appellee’s entrance check. The declaration then charges that the defendant had elected to not comply with nor be bound by the Compensation Act passed by the Legislature of the State of Illinois, by which provision was made for compensation for accidental injuries or death suffered in the course of employment. The evidence offered to sustain this allegation was a notice filed by appellant with the Industrial Board stating that appellant had elected not to accept the provisions of or pay compensation according to the provisions of the Compensation Act; but no evidence was introduced showing a posting of such notice or service thereof upon the appellee.

It is insisted by counsel for appellant that as the Compensation Act provides that appellant was conclusively presumed to be under such act, unless and until notice to the contrary is filed with the Industrial Board, and unless and until the notice is posted or personally served, and that the burden was upon appellee to show appellant not to be under this act. This seems to be the provision of the statute, and if defendant had been deprived of some of its defenses by reason of plaintiff’s failure to make such proof, then there would be some reason in saying that such proof should have been made before the action could have been maintained. It is claimed by appellant that for want of such proof it is conclusively presumed to be operating under the Compensation Act, and yet in truth and in fact the appellant all during the progress of the trial proved certain conditions and circumstances tending to show that the negligence of the defendant w.as not the proximate cause of the injury, and that the appellant was not guilty of a wilful failure to mark the place as dangerous. If it be true that the defendant was operating under the Compensation Act, then a liability would attach, whether they were negligent or whether their conduct was the proximate cause, or whether or not it was an accident, none of which could be a defense under the Compensation Act. The Supreme Court in a case where this question was made, and where counsel upon oral argument stated that the defendant was not under the Compensation Act, says: “While appellant has devoted considerable space in its brief to a discussion of the sufficiency of the evidence to sustain the averment in the declaration that appellant had elected not to comply with the Workmen’s Compensation Act, on the oral argument counsel for appellant conceded that it was not at the time of the alleged injury, and never had been, operating under said act, so that in the disposition of the questions here involved it will be assumed as a fact that appellant had not elected to pay compensation for injuries in accordance with said act.” Dietz v. Big Muddy Coal & Iron Co., 263 Ill. 482 [5 N. C. C. A. 419]. It is said by counsel for appellant, however, in answer to this proposition, “We have never said we are not under the law, ’ ’ which is true, that they have not made that declaration in so many words, yet by their act and conduct, pleadings and. proceedings in this case they have assumed the position entirely in conflict with the idea of operating their mine under the Compensation Act, so that we believe the attitude and defenses made by appellant herein are equivalent to the declaration that they were not operating under the Compensation Act. Courts are reluctant to sustain objections where the objector has not been thereby deprived of any of his rights, and nothing could be gained by sustaining such objections. We believe that we are justified in assuming in this case, as the Supreme Court did in Dietz v. Big Muddy Coal & Iron Co., supra, that the appellant had elected not to pay compensation in accordance with said act. If the appellant was operating its mine under the Compensation Act, then the Circuit Court would not have jurisdiction to try and determine the rights of the parties, and a plea to the jurisdiction of the court setting up that fact would have defeated the appellee in his suit. Inasmuch as appellant made no objections to the jurisdiction of the court, we are of the opinion that it waives its right to now insist, after verdict, that the court was without jurisdiction to try this cause. The court had jurisdiction of the subject-matter as presented by the declaration. It appears to us that such averments are only matters of inducement, and where the only plea filed is that of general issue, that such inducement is not denied by such plea. Carlson v. Johnson, 263 Ill. 556. This identical question was before this court at the October term, 1915, in the case of Hughes v. Eldorado Coal & Mining Co., 197 Ill. App. 259, and it was then determined by this court that the proof of posting the notice or serving the same upon appellee was not required where the appellant had taken advantage of all defenses allowed him under the form of action as brought. Since that time our attention has been called to the case of Frere v. Missouri, K. & T. Ry. Co., 94 Kan. 57, 145 Pac. 864, decided by the Supreme Court of Kansas, under a statute similar to the one under consideration, and that court says: “As the pleadings, proceedings and instructions were all in line with the statutory action for damages under section 4992, and as the affirmative defense of nonelection was not presented, it is difficult to see how the defendant can complain. * * * No objection was made to proceeding as if the action were one for damages under the act relating to mines (Glen. St. 1909, sec. 4992). No instruction was offered touching the Compensation Act, but both parties tried the issues as framed by the pleadings, and on that basis no error is apparent. It is too late now to invoke the provisions of the Compensation Act for the first time.” We can say in.this case that all of the pleadings, proceedings and instructions were in line with the statutory action for damages under the mining law and no complaint was made during the trial that the proceeding was an improper one, and we think it is too late to raise that question after a verdict has been rendered, and adhere to the doctrine announced in our former decision of Hughes v. Eldorado Coal & Mining Co., supra.

It is next insisted by appellant that the court erred in permitting the doctors introduced by appellee to testify as to their opinion as to the permanency of the injury to appellee for the reason, as he says, that the testimony was a mere conjecture and not a positive opinion, and in violation of the rule laid down by the Supreme Court in the case of Kimbrough v. Chicago City Ry. Co., 272 Ill. 76. We do not regard the evidence here introduced as coming within the rule laid down in the case referred to. Doctor Boynton was called and treated the case five to seven days before appellee was sent to the hospital, and he gives the nature of the injury and the effect of it, as he observed it at the time of his treatment, and upon a recent examination made. He gives the effect that it had upon the muscles of the legs and that one had become shorter than the other, and appellee’s inability to control the movement of his limbs, and then stated that it was his belief that the injury was permanent; and on cross-examination he was asked, “But you cannot be sure.” “A. I could not be absolutely certain.” Doctor Woods testifies that he had treated appellee once a week after ten weeks from the time of the injury, and states that in his opinion he will not fully regain the use of his limbs or do hard manual labor; and on cross-examination, in answer to a question, says that he cannot be sure of it, and counsel for appellant argue from this that the physicians were not sure of their opinion. We do not so understand the answers. Where the physician answered that he was not sure of it he had reference to the final results and not as to his opinion. The Supreme Court says that the testimony of a physician who treated plaintiff for his injury and had examined him before trial, to the effect plaintiff was lame and had curvature of the spine and degeneration of the spinal cord, should not be stricken out because he has been guided to some extent in his conclusion as to the degeneration of the spinal cord by what plaintiff has said to him. Eckels v. Muttschall, 230 Ill. 462. We do not believe that the opinions as expressed by these physicians are mere conjectures but are opinions based upon the facts and conditions observed by them with reference to the condition of appellee. We have searched the abstract and record and find that no objections were made to-the introduction of this testimony, and no motion was made by counsel to strike the testimony from the record, and the question of the competency or materiality of this testimony was never presented to the trial court and cannot be urged in this court for the first time.

It is next urged that the failure to mark a dangerous place in the roof of the room could not be the proximate cause of the injury, and that the real cause of it was the placing of the jack against the roof. It may be that the placing of the jack against the roof had something to do with the precipitation of the fall, but it is also true that if a dangerous place had been marked and appellee’s check had been withheld, and he had not been permitted to go down and work in the room until the dangerous place had been made safe, then no injury could have happened, and we cannot say as a matter of law that the placing of the jack in the roof was the proximate cause of the injury. Whether the failure to properly mark and report a dangerous condition in the roof of the room was the proximate cause of an injury to a miner is a question of fact for the jury, notwithstanding the miner had actual notice of the condition. Mertens v. Southern Coal & Mining Co., 235 Ill. 540; Piazzi v. Kerens-Donnewald Coal Co., 262 Ill. 30. It was for the jury to determine whether or not a dangerous condition existed, and if a dangerous condition did exist, then the fact that the mine examiner examined the roof and found it, as he thought, to be only “a little drummy,” did not excuse the defendant from liability for the wilful violation of the statute, if the place was in fact dangerous and the plaintiff was injured in consequence. Aetitus v. Spring Valley Coal Co., 246 Ill. 32. The jury in reaching the conclusion which it did necessarily determined that .a dangerous condition existed in the roof of this room; that appellant’s mine examiner failed to mark it as dangerous and as a result thereof the. roof fell and injured appellee, and we can see no reason to disturb such finding.

It appears from the evidence that appellant placed John McClinnick, the State Mine Inspector, upon the witness stand and asked him the question: “Q. State whether or not a slight drumminess of white top necessarily requires that the place be marked dangerous?” To this and other similar questions objection was made and sustained, which appellant in its argument complains was error. It seems to us that this was one of the questions submitted to the jury, as to whether or not the place was required to be marked dangerous, and not a question of expert testimony. It is not proper to permit a witness, not even an expert, to give a conclusion upon a matter to be determined by the jury, and we cannot see that the court erred in this.

After a careful examination of this record we are unable to say that the court committed any reversible errors in its rulings or that the verdict of the jury was manifestly against the weight of the evidence, and the judgment of the lower court is affirmed.

Judgment affirmed.


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    City of Alton, Appellant, v. George Miller, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal corporations, § 449

      —when pleas of estoppel "by judgment in action for damages for construction of sidewalk are insufficient. In an action to recover damages against a city for the construction by it of a certain sidewalk above grade in front of plaintiff’s building, special pleas setting up as res judicata of all questions of benefits and damages and estoppel of plaintiff, certain tax levy proceedings in court for the construction- of said sidewalk, held insufficient to charge that the provisions of the Local Improvement Act regulating the method of ascertaining compensation to be made for property taken or damaged were complied with in said proceedings, and demurrers thereto were properly sustained, as said pleas failed to allege that the petition in said proceedings prayed for steps to be taken to ascertain the just compensation to be made for private property to be taken or damaged for such improvement, or that said petition described plaintiff’s property as property which would be so taken or damaged, os that on the filing of such petition certain appointments required by said act were made for the purpose of investigating and reporting as to such compensation, or that any report was made, filed or certified as to plaintiff’s property in such proceeding, or that defendant in any other respect proceeded according to said act for ascertaining such compensation.

      Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by George Miller, plaintiff, against the City of Alton, defendant, to recover damages for the construction by defendant of a certain sidewalk above grade in front of plaintiff’s building. From a judgment for plaintiff for $1,416, defendant appeals.
    William P. Boynton, for appellant.
    J. V. E. Marsh, for appellee.

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

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

2. Appeal and ebbob, § 1458 —when variance between declaration and proof is immaterial. Failure to prove or introduce in evidence certain ordinances referred to in certain additional counts of the declaration, held immaterial on appeal where the original declaration was sufficient to sustain the judgment.

3. Municipal cobpobations, § 449a*—when evidence sufficient in action for damages for construction of sidewalk above grade. In an action by a property owner against a city to recover damages for the construction of a sidewalk above grade, in front of plaintiff’s building, evidence held to support the charge in the declaration that defendant constructed the sidewalk at a higher elevation than the established grade, or the grade upon which plaintiff had constructed his sidewalk.

4. Municipal cobpobations—when city estopped to claim that grade is not proper. Where plaintiff erected his building and laid his sidewalk in front thereof in accordance with the grade fixed, on plaintiff’s application, by. the defendant’s engineer, on an improved street, with brick pavement and curbing along the side, and the curbing in front of plaintiff’s premises at grade, held that defendant would be estopped from claiming that the grade of the curb was not the proper grade in front of plaintiff’s premises.

5. Municipal cobpobations, § 430*—when city liable for construction of sidewalk above grade. Whether the grade furnished plaintiff by defendant city upon which he erected his building and .built his sidewalk was too low, or defendant, in building its sidewalk, got it above the proper grade, held that defendant would be liable for the condition created.

6. Municipal cobpobations, § 450 —when evidence as to statements -by plaintiff that he thought his building was above grade is immaterial. In an action by a property owner against a city to recover damages for the construction of a sidewalk above grade in front of plaintiff’s building, evidence as to statements by plaintiff that he thought his building was constructed too low, held properly excluded, as such statements would have no tendency to show plaintiff did not properly construct his building in compliance with the established grade.

7. Municipal cobpobations, § 452*—when instructions on damages ■for construction of sidewalk above grade properly refused as not in conformity with evidence. In an action by a property owner against a city to recover damages for the construction of a sidewalk above grade in front of plaintiff’s building, instructions ignoring the evidence tending to show that in determining the grade at which plaintiff would erect his building he was governed by a grade established by the proper officers of defendant, held properly refused.

8. Instructions, § 151*—when refusal of requested instruction proper. Refusal to give an instruction worded somewhat differently from but the substance of one already given, held not erroneous.

9. Municipal corporations, § 453*—when damages for construction of sidewalk above grade are not excessive. A verdict for $1416 damages held not excessive where by reason of the construction of defendant’s sidewalk above grade the market value of plaintiff’s premises was depreciated, water was thrown into his building and basement, causing the building and walls to- settle and crack, and the testimony of witnesses familiar with conditions estimated the damages at from $1,500 to $3,000.

10. Appeal and error, § 1236 —when defendant may not complain on review that damages are excessive. Where defendant did not controvert plaintiff’s claim as to the character of the injuries inflicted upon him or their effect on his building, or call any witnesses to testify upon the question of depreciation in value of plaintiff’s building or refute the valuations testified to by plaintiff’s witnesses, held that defendant could not complain on review that the damages were excessive.


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    Elijah H. Marteeny et al., Appellants, v. J. Warner Louth, Commissioner, et al., Appellees.
    (Hot to he reported in full.)
    Appeal from the Circuit Court of Jefferson county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Bill by Elijah H. Marteeny and others, complainants, against J. Warner Louth, as Commissioner of Highways of the Town of Mt. Vernon, and others, defendants, for an injunction against the further construction of certain roads and to have bonds issued declared invalid, and other relief. From an order, on remandment of the case, refusing to permit the introduction of evidence as to the amount of money received by the defendant Louth on account of such work, in violation of a certain decree theretofore entered adjudging that he should not receive any pay for his own teams used in the work and that he should pay back to the treasurer of the town all money he had received therefor, and a final decree based on such order and readjudging as in the former decree, complainants appeal. For the decision on a former appeal, see 197 Ill. App. 106.
    Robert M. Farthing, for appellants.
    W. H. Green, George L. Ore and Conrad Schul, for appellees.
   Mr. Presiding Justice McBride

delivered the opinion of the court.

Abstract of the Decision.

Equity, § 513*—what are requisites of money decree. Where it is sought to obtain a money decree, the amount must be fixed at a certain specific sum by the decree itself.


text:
    Louis Fink, Appellee, v. Walter W. Schleuter, Appellant.
    1. Signatures, § 1

      —when signature to assignment of stock is sufficient. Where the purpose of the parties to an assignment of shares of stock in making the assignment is to vest title in the assignee, the signing may be in the caption, in the body or at the end of the instrument.
    2. Corporations, § 154*—what are rights of creditors as against stock standing on hooks in name of stranger. Where certain shares of stock in a corporation were taken out by a party in the name of his son, were retained and assessments thereon paid by such party and were never delivered to the son, held that the creditors of the son would have no right to subject such shares to the payment of the son’s debts, even though the Shares stood in his name on the books of the corporation.
    3. Execution, § 127*—what evidence properly excluded on trial of right of property in shares of stock. On trial of right of property in certain shares of stock in a corporation levied upon under a judgment against the party in whose name such shares stood on the books of the corporation, but which had been paid for and retained by another party and never delivered to such party in whose name they stood on the books, objection to the admission in evidence of declarations by such party to the judgment debtor at the time of incurring the indebtedness and to others that he was the owner of such shares, held properly sustained.
    4. Execution, § 121*—when direction of verdict on trial of right of property proper. On trial of the right of property in certain shares of stock in a corporation levied upon under a judgment against the party in whose name such shares stood on the books of the corporation, but which had been paid for and retained by another party and never delivered to such party in whose name they stood, and who had no interest therein, held that the court would he hound to consider what the whole evidence tended to prove, and the court did not err in directing a verdict for such other party, notwithstanding the fact such shares stood in the name of the judgment debtor by itself made a prima facie case that he was the owner thereof.
    Appeal from the County Court of Madison county; the Hon. Henby B. Eaton, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Geers & Geers, for appellant.
    Warnock, Williamson & Burroughs, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

Appellant obtained a judgment against one Anton S. Fink and caused an execution to be issued and levied upon six shares of the capital stock of the Home Building and Loan Association of Edwardsville. The appellee claimed to be the owner of the stock levied upon, gave notice of such claim which resulted in a trial of the rights of property, and upon the final hearing in the County Court judgment was rendered in favor of the appellee, to reverse which this appeal is prosecuted.

It appears from the undisputed testimony in this case that on the 6th day of July, 1908, the appellee, who was the father of Anton S. Fink, procured from the Home Building and Loan Association of Edwards-ville, Illinois, six shares of its capital stock which were issued in the name of Anton S. Fink, who was then a minor and did not arrive at his majority until about 1912 or 1913. The certificate of stock so issued was taken possession of by the appellee and retained by him and kept in his safe at his place of business from that time until the time of the trial below. The appellee purchased the stock, as he says, with a view of giving it to his son, Anton S. Fink, at a time when he should need it. The appellee paid all of the assessments upon the stock and denies that he ever gave or delivered the stock to his son. Prior to his son arriving at,his majority, the appellee sent him to school at Valparaiso, Indiana, for two years and upon the son’s return from school and attaining his majority the father told him that he could not afford to give-him the stock and asked the hoy to assign the stock to him, which the boy did on October 16, 1913, and gives as a reason for having the stock assigned to him was to vest in him the legal title. There was a blank assignment printed upon the back of this certificate, and the boy instead of signing his name at the bottom of the assignment signed it at the top, and when he returned it to his father signed in that way the father asked him to fill up the blanks in the printed assignment, which he did, inserting the pronoun “I” and the name of appellee as assignee in the assignment. It further appears from the evidence that on July 13, 1914, Anton S. Fink became indebted to appellant and that judgment was taken against Anton S. Fink at the October term, 1915, of the Madison county Circuit Court for $376.25; execution was issued and levied upon the six shares of capital stock in question. It further appears from the evidence that at the time the levy was made the stock appeared upon the books of the Building Association in the name of Anton S. Fink, but it also appears that at the time of the transfer to appellee that appellee took the stock to the secretary and requested that it be transferred to his name, but the secretary advised him that was not necessary and it was not done. There was no testimony introduced in evidence by appellant and the court directed a verdict for the appellee.

It is insisted by counsel for appellant that there was no legal assignment made of this stock by the son to the father and, if there was, it was not made in good faith. It is true that it appears from the evidence that the son wrote his name above the printed assignment, but it also appears that it was the son’s signature and that the son in his own handwriting filled out the blanks, causing the assignment upon the blank to read: “For value received, I hereby sell, transfer and assign to Louis Fink the shares of stock within mentioned, and authorize the secretary of the within-named association to make the necessary transfers on the books of the association. Witness • my hand and seal this 16th day of October, A. D. 1913.”

The evidence shows that the purpose of Anton S. Fink and appellee in the making of the assignment was to vest the legal title in the appellee, and where such is the purpose of the parties the signing may be in the caption, in the body or at the end of the instrument. McConnell v. Brillhart, 17 Ill. 354. We think this assignment sufficient even if an assignment were necessary. It appears, however, from the evidence that the stock was taken out by the father, retained by him, assessments paid by him and that he never delivered the stock to his son, and whatever may have been his intention in the future he had not -executed that intention by delivering the stock to his son, and under such circumstances the creditors of the son would have no right to subject such stock to the payment of the son’s debts, even though the stock stood in his name on the books of the corporation. Rice v. Gilbert, 173 Ill. 348; Magerstadt v. Schaefer, 213 Ill. 351. So far as this record discloses, the transfer was made in perfect good faith, and certainly in good faith as to appellant, as appellant’s debt was not contracted for about one year after the son had made the assignment to his father, and, as we view it, the son in fact had no interest in the stock except that he, up to the time of the assignment, expected it to have been given to him at some future time, but it never was given to him and we see no reason for the impeachment of this transaction for want of good faith.

It is next insisted that the court erred in refusing to admit evidence offered by the appellant. The appellant offered to prove that in October, 1915, which was two years after the assignment to appellee, that Anton S. Fink stated to one Frank B. Sanders that he was the owner of the six shares of stock involved in this suit. Also that Anton S. Fink represented to appellant at the time of incurring the indebtedness of Anton S. Fink to appellant, that he, Anton S. Fink, was the owner of the stock in question. This was objected to and objection sustained, and we think the ruling of the court was correct in the sustaining of this objection. Appellant did not offer to show that at that time Anton S. Fink had possession of the stock; these were simply declarations of a third party and not in any manner connected up with the possession of the shares of capital stock in question, and would, in our judgment, have violated a very plain principle of law to have admitted the declarations in evidence.

It is next said that the court erred in directing a verdict. That depends entirely upon the question as to whether or not there was any evidence tending to support appellant’s theory of the case. It is said by counsel for appellant that the fact that the stock appeared upon the books of the corporation in the name of Anton S. Fink made a prima facie case and tended to prove that he was the owner of it. If this were the only statement in evidence upon this question, then there might be some reason for the contention, but the court in passing upon this motion was in duty bound to consider what the whole of the evidence tended to prove, and when the fact that the stock was in the name of Anton S. Fink upon the books of the corporation was taken into consideration, in connection with the explanation that the stock belonged to the father, that he had paid the assessments upon it, that it had never been delivered to the son, and that the son in fact never had any interest in the stock, it seems to ns that under the rule as laid down in the case of Rice v. Gilbert, supra, and other cases referred to herein, that it clearly appeared that the stock belonged to the father, and that the evidence when considered together did not tend in any manner to prove that the son was the owner of the stock.

We are of the opinion that the holding of the court was proper in this regard, and that the evidence clearly shows that the appellee is the owner of the stock in question and entitled to retain it, and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    Joe Baretti, Appellee, v. Peter S. Theurer, Trustee, and Peter Schoenhofen Brewing Company, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Franklin county; the Hon. ' Chabees H." Mieles, Judge, presiding. Heard in this court at the . October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Bill by. Joe Baretti, complainant, against Peter S. Theurer, trustee, and the Peter Schoenhofen Brewing Company, a corporation, defendants, to cancel a certain bond and mortgage’ executed by the complainant, and cross-bill to foreclose such mortgage. From a decree canceling the bond and mortgage, defendants appeal.
    Abstract of the Decision.
    1. Appeal and ebrob, § 1410

      —when finding deemed not to be against manifest weight of evidence. A finding that complainant’s indebtedness, to secure which he had given the bond and mortgage in suit, had been fully paid, held not against the manifest weight of the evidence where the testimony as to the amount of the goods for which the indebtedness was incurred or the amount of payments thereon was confused and the facts were not so collated in the brief or abstract as to enable the court on review to pass on the question. ,
    2. Payment, § 29*—when evidence sufficient to show payment of Chech. A finding that complainant had paid a certain check which had been, when presented, refused payment, held not error where subsequent payments for a much larger amount were shown to have been made.
    3. Witnesses, § 259*—when testimony of agent of corporation is entitled to little weight. Testimony by an agent for the defendant corporation that the hooks of the corporation showed that complainant owed the corporation a certain balance, held not of much weight where the witness also testified he did not keep such hooks or receive the orders for the goods sold and had no personal knowledge of the transactions.
    4. Evidence, § 255*—when ledger leaves are inadmissible to prove boohs of account. Certain ledger leaves offered in evidence not shown to he from a book of original entries, or that the entries made therein were made by the witness or were true and just, or were made by a deceased person or nonresident or in the usual course of business, held not admissible under the statute to prove hooks of" account.
    ■ Butz, Von Ammon & Johnston, for appellants; John E. Carr, of counsel.
    W. H. Hart and W. P. Seeber, for appellee.

      See Illinois Notos Digest, VoIs. XI to XV, arid Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

5. Cancellation oe instruments—when cancellation of bond and mortgage to secure sales to purchase is proper. Where complainant gave a certain bond to secure sales to be made by him in the future and did not specify any time or the extent of such sales, held that complainant would be entitled to have such bond and a mortgage given to secure same canceled when he should have paid all due if he did not desire to further continue business.


text:
    Edna Miranda, Appellee, v. City of Collinsville, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Edna Miranda, plaintiff, against the City of Collinsville, defendant, to recover damages for personal injuries sustained by reason of an obstruction in a sidewalk of a public street of defendant consisting of some steel pipes protruding at the outer edge of the walk, upon which plaintiff tripped and stepped into a nearby hole. From a judgment for plaintiff for $1,800, defendant appeals.
    R. Guy Kneedler, for appellant.
    Webb & Webb and Geers & Geers, for appellee.

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

   Mr. Presiding Justice McBride

delivered, the opinion of the court.

Abstract of the Decision.

1. Municipal corporations, § 1098 —when evidence sufficient to show negligence in failing to remove projecting pipes at edge of sidewalk. Where certain steel pipes projected about six inches above a sidewalk at its outer edge on a public street of a city and were allowed by the city to so remain for several years, held that a finding that such condition was a menace to persons traveling over the walk and had existed for such a length of time that the city should take notice thereof and remedy it was justified, in an action to recover damages for injuries sustained thereby.

2. Municipal corporations, § 1098*—when evidence sufficient to show that pipes projecting above sidewalk are dangerous. The fact that a person traveling on a public sidewalk in the usual manner of traveling upon meeting another person and attempting to pass tripped on a steel pipe projecting six inches above the walk and fell and injured herself, held to justify a finding that such pipe was a menace to persons traveling on the walk, notwithstanding such pipe may have been just outside the walk in close proximity to it.

3. Municipal corporations, § 1098*—when evidence sufficient to show due care of pedestrian tripping on projections above sidewalk. Evidence held to sustain finding that plaintiff was in the exercise of due care for her own safety at the time she tripped on certain pipes projecting about six inches above defendant’s sidewalk, notwithstanding she had passed over the walk frequently and had never observed the pipes.

4. Municipal corporations, § 1226*—necessity of service of notice of injury on licensed attorney. Service of notice of injury upon the attorney of a city before bringing an action against the city required by the statute must be upon a licensed attorney.

5. Municipal corporations, § 1226*—who may not be served with notice of injury. Service of notice of injury upon the attorney of a city before bringing an action against the city required by the statute cannot be made upon an assistant city attorney.

6. Municipal corporations, § 1226*—when service of notice of injury is properly made upon city clerk. Where a city had as city attorney one who was not a licensed attorney, held that service of notice of injury before bringing suit against the city required by the statute was properly made upon the city clerk.