text:
    Louise M. Good et al., Defendants in Error, v. Wilhelm Krause, Plaintiff in Error.
    Gen. No. 6,680.
    1. Compromise and settlement, § 5*—what is sufficient consideration for compromise. The settlement of a bona fide dispute or a doubtful claim, if made fairly and in good faith, is a sufficient consideration for a compromise based thereon.
    2. Compromise and settlement, § 5*—what is not sufficient consideration for compromise. The surrender of a claim which is entirely without foundation, either in law or in equity, does not afford a sufficient consideration for a compromise.
    3. Compromise and settlement, § 5

      —what is sufficient to support compromise. It is sufficient to support a compromise that there is an actual controversy between the parties of which the issue fairly may be considered by both parties as doubtful, and that at the time of the compromise they in good faith so considered it.

      4. Contracts, § 78*—when promise not to interfere in settlement of estate is without consideration. A promise by one to the mother, sister and brothers of his deceased wife that if they would not interfere in the settlement of her estate, which consisted wholly of personalty, as far as appeared from the evidence, he would pay them $2,000, is without consideration and not enforceable against him.
    5. Appeal and error, § 1236

      —when party estopped to make claim on appeal. Where, in an action against one to recover on a promise alleged to have been made by him to plaintiffs, the mother, brothers and sister of his deceased wife, that he would pay them a certain sum of money if they would not interfere with the settlement of the estate, the defendant testifies without contradiction that his wife’s estate in the State consisted wholly of personalty and that he did not receive any interest from her and invest it in realty in the State and plaintiffs refuse to permit him to state who paid for all of the realty, they are in no position to contend on appeal that deceased had property in real estate, furnishing a foundation for a reasonable claim by them of inheritance.
    Error to the City Court of Kewanee; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the April term, 1919.
    Reversed with finding of facts.
    Opinion filed October 14, 1919.
    James K. Blish and James N. Cummings, for plaintiff in error.
    James H. Andrews, for defendants in error.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

The four defendants in error, hereinafter called plaintiffs, are the mother, sister and brothers of the deceased wife of Wilhelm Krause, the plaintiff in error, hereinafter called the defendant. They brought this action of assumpsit alleging his oral promise to pay them $2,000 if they would not interfere in his settlement of her estate. They had a judgment on a verdict of $2,000, from which he prosecutes this writ of error. Plaintiffs’ theory of the case is that they claimed an interest in the estate of the deceased wife* of the defendant; that he promised to pay them $2,000 in compromise of that claim, which promise they accepted, and that it is immaterial as matter of law whether there was any reasonable foundation for that claim. Defendant’s theory is that if the promise was made it was without consideration and not enforceable, unless the claim was capable of support in an action in law or in equity; that the deceased wife left no issue surviving, and left only personal property, which, under our statute of “Descent” passed to her husband; therefore, plaintiffs had no right, or color of right, to such property, and any promise made in compromise of an asserted right therein was without consideration.

The declaration in two of its three counts averred, in stating the consideration for the promise, that the plaintiffs believed and had good reason to believe that they had an interest in said estate. The other count omitted the averment of “good reason” for the belief.

The evidence stated most strongly for plaintiffs is that Mary E.- Krause, the deceased, died a resident of Illinois, September 17, 1915, intestate, and without issue, leaving surviving her husband and the four plaintiffs as her only heirs and distributees; that she had inherited some money from her deceased father, and at the time of her death a part or all of that money was in a $2,000 interest-bearing promissory note, payable to her; that at the same time the defendant owned two houses and lots in Henry county, Illinois, one of them their homestead; that shortly after the funeral the defendant told the plaintiffs if "they would not interfere in the settlement of the estate he would give them that $2,000 that his wife inherited from, her people; that the interest on that money had gone into real estate; and plaintiffs accepted the proposition and did not interfere with the defendant’s settlement of the estate.

The defendant, as a witness, denied substantial parts of this conversation, but for the purpose of this investigation we assume it occurred as plaintiffs state. But he testified without contradiction that he did not receive any interest from his wife and invest it in real estate; that he never received any intérest from his wife and invested it in real estate in the State of Illinois; that she did not own any real estate at the time of her death or any interest in real estate in Illinois. He was asked by his counsel: “Who paid for all the real estate?” The question was objected to as immaterial, and the objection sustained.

The court tried the case on the theory that if the plaintiffs honestly claimed a right in the estate of deceased, and there was no fraud, or misconduct on their part in procuring the promise sued on, there was a good consideration for the promise, and ruled on the evidence and instructions accordingly. The question presented here is whether a claim, however unreasonable, may form the basis of a compromise and valid agreement to pay, or whether the claim must be, as alleged in two counts of the declaration, grounded in a reasonable belief. In other words, whether it is necessary that it be at least a doubtful claim. If the deceased left only personal property, plaintiffs had no interest in it, and the claim was not reasonable. There is nothing doubtful about it. They may have believed they had an interest, but it was not a reasonable belief.

The subject is treated in 12 Corpus Juris beginning on page 324. It is said on that page: “The settlement of a bona fide dispute or a doubtful claim, if made fairly and in good faith, is a sufficient consideration for a compromise based thereon”; on page 326: “There is some variance of authority as to what may constitute a bona fide dispute or a doubtful claim”; on page 327: “The surrender of a claim which is entirely without foundation, either in law or in equity, does not, according to the great weight of authority, afford a sufficient consideration for a compromise”; on page 331: “It is sufficient to support a compromise that there be an actual controversy between the parties of which the issue fairly may be considered by both parties as doubtful, and that at the time of the compromise they in good faith so considered it”; on page 332: “A person asserting a claim without any ground whatever on which to base it cannot be said to have acted in good faith.” The above quotations fairly state the law as held by our Supreme Court. In Heaps v. Dunham, 95 Ill. 583, a compromise settlement was under consideration. Two claims were asserted and compromised, one of them doubtful, the other not. In the former, while the defendant might not have been liable, there were reasonable grounds for asserting such liability; and it was held a sufficient consideration to support the agreement in so far as it rested on that ground. The other claim was based on a supposed legal right that could not exist in the party making the claim, and it was held insufficient to support a promise. The court cites Parsons on Contracts to the effect that the claim must be of some value in reality, and that the assumption of a supposed liability, which has no foundation in law or in fact, is not a valuable or sufficient consideration, and that where one, through mistake of the law, acknowledges himself under an obligation which the law does not impose, he is not bound by such promise, although, in general, ignorance of the law is no excuse or defense, and Ohitty on Contracts to the effect that it is essential that such claim should be sustainable in law or in equity, and the consideration fails if it appears that the demand was utterly without foundation, though the giving up of a doubtful claim will suffice, and Mulholland v. Bartlett, 74 Ill. 58 (a case in which the court reviewed the authorities), and quotes with approval that: ‘ ‘ There must be a well-founded claim in law or in equity forebome, or there must be a compromise of a doubtful right.” We do not find Heaps v. Dunham, supra, cited on this point in any later Illinois Supreme Court decision. The Appellate Court of the First District cited it, and summarily disposed of a case where a note was given in compromise of a claim that the maker was under no legal or moral obligation to pay. It was suggested that trouble was avoided by the compromise, and the court said the fear of trouble with nothing to show that the payee had any right to make trouble could not be molded into a consideration. It was again cited by that court in Herbert v. Mueller, 83 Ill. App. 391, 395, in which the consideration was held to fail because it was clear that the promisee had no legal demand against the promisor. It was cited and followed by this court in Funk v. Hossack, 129 Ill. App. 421, where it was held that a promise not to-put appellant’s tenants into bankruptcy was not a sufficient consideration because they were farmers and could not be forced into involuntary bankruptcy; and we said that the assumption of a supposed danger of liability which has no foundation in law or in fact is not a valuable or sufficient consideration. It is said in Woodall v. Peden, 274 Ill. 301, 306: “The compromise of a doubtful right made in good faith is a sufficient consideration for a conveyance; and that is true, regardless of the question whether the right was well founded or not. The actual right must be on one side or the other, and on which side makes no difference. * * * But there is nothing in the nature of a compromise where the claim made is one which could not be enforced under any state of proof, either in law or equity.”

Some courts have used language indicating, when read apart from the rest of the opinion without considering the actual case decided, that an honest dispute about property rights, however groundless and absurd the claim might be, is sufficient to support a compromise agreement. Such expressions may be found in opinions in our Supreme Court, but we know of none there in eases where there was no color of right in the asserted claim. And even in cases where such expressions are used like Parker v. Enslow, 102 Ill. 272, the court has shown in its opinion that the asserted claim was one on which an action might be maintained, thus indicating that it regarded that fact material. It is true, as stated in 12 Corpus Juris, 328: “It is difficult to determine at just what point a claim is transformed from a baseless to a doubtful one.” And as said in Gray v. United States Savings & Loan Co., 116 Ky. 967: “The line between these two classes of cases sometimes becomes exceedingly fine, but it is none the less real for that reason.” It may be difficult to lay down an accurate general rule. But when, as said in House v. Callicott, 83 Miss. 506, 35 So. 761, one has nothing to compromise except a power to foment trouble, he has no consideration to offer to support an agreement. In the present case plaintiffs had no reasonable claim to personal property left by the deceased, and we hold the assertion and compromise of such a claim furnished no consideration for a promise however honest and mistaken the parties may all have been.

As before noted, according to plaintiffs’ evidence, there was some talk at the time of the family agreement implying that during the lifetime of deceased some of her money had gone into real estate owned by the defendant; that he then said that the interest on her $2,000 note had gone into real estate. But plaintiffs did not show, or attempt to show, that such was the fact. They left entirely uncontradicted the testimony of the defendant that his deceased wife left no real estate, or interest in real estate, and none of her money had been invested in real state. He offered to show what money paid for the real estate that he owned and plaintiffs, by their objection, kept that proof out of the record. Under that state of proof the plaintiffs have no standing here to say that the deceased had property in real estate, furnishing a foundation for a reasonable claim by them of inheritance. It is quite apparent from a reading of the record that the only claim plaintiffs had, or thought they, had, or asserted at the time of the family conference, was to the $2,000 note which they thought should go back into the family of deceased because it had come from that source. The record entirely fails of proof that deceased left any real estate or any interest therein; and contains positive evidence that she did not. We therefore conclude that plaintiffs had no interest in and no reasonable claim to any property of the deceased, and no reasonable belief in any such claim or interest; that there was no consideration for the alleged promise of the defendant, and the judgment must be reversed.

Reversed with finding of facts.

Finding of Facts. We find that the alleged promise of the defendant sued on in this case had no other consideration to support it than a claim of the plaintiffs of an interest in the personal estate of deceased. They had no such interest, and no reasonable belief that they had any such claim or interest; that no doubtful question was settled or compromised, and there was no good or valuable consideration for the promise of the defendant on which this action was brought.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Lydia Dorothea Sutter, Appellee, v. Massachusetts Bonding and Insurance Company, Appellant.
    Gen. No. 6,690.
    1. Insurance, § 667*—when finding that ptomaine poison was in food eaten by insured is warranted by evidence. In an action to recover on an accident insurance policy, where the evidence shows that insured died of cerebral hemorrhage after suffering 19 days from an attack of ptomaine poisoning immediately following the eating of a lunch in a cafeteria, a finding that the ptomaine poison was in the food is warranted notwithstanding the general statement of an expert witness for defendant that ptomaine poisoning may develop from a diseased -condition or from the arousing of bacteria in the body by taking healthful food, there being no evidence to show that these were the conditions.
    2. Insurance, § 686*—when cause of death of insured is question for jury. Where the expert evidence is conflicting in an action on an accident insurance policy, as to whether the cerebral hemorrhage and death of insured, who died of cerebral hemorrhage after being sick for 19 days with ptomaine poisoning, resulted from such poisoning and sickness, the question is for the jury.
    3. Evidence, § 454*—how jury are to weigh expert medical testimony when conflicting. Where expert medical testimony is conflicting, it is the duty of the jury to weigh it in the light of their knowledge and judgment derived from their experience, observation and reflection.
    4. Insurance, § 419*—death by unintentional swallowing of poison contained in food as caused by “accidental means.” Death caused ^from the unintentional swallowing of poison contained in apparently wholesome food may be considered caused by “accidental means,” within the meaning of an accident insurance policy.
    5. Insurance, § 419*—when ptomaine poisoning not excluded from accident policy. The fact that an accident insurance policy contains a special provision that blood poisoning resulting directly from bodily injury insured against shall be deemed bodily injury within the meaning of the policy does not tend to exclude a construction of the policy to include ptomaine poisoning.
    6. Insurance, § 690

      —when instructions not misleading. Instructions in an action to recover on an accident insurance policy held, when read together and applied to the evidence, not to be misleading.

      7. Insurance, § 408*—accidental character of means causing death of insured in accident policy as question of construction of contract. In an action on an accident insurance policy, whether the means causing the death of insured was accidental was a question of construction of the contract.
    8. Insurance, § 697

      —when refusal of instruction in action on accident policy is not error. In an action on an accident insurance policy, it is not error to refuse to give, at defendant’s request, an instruction that if insured, on a certain date, contracted ptomaine poisoning, that of itself was not proof that it was contracted through accidental means, directly and independently of all other causes, where there is no question in the case as to how the poisoning was contracted, the accidental character of the means had heen argued and decided as a question of law and whether it was independently of all other causes had been covered in other instructions given.
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 14, 1919.

      Certiorari denied by Supreme Court (making opinion final).
    Edward W. Rawlins and Charles H. King, for appellant.
    Wilkerson, Cassels & Potter and Leslie P. Hanna, for appellee; Ralph F. Potter, of counsel.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

This is an appeal by the defendant insurance company from a judgment on a verdict of $8,397.60 in favor of appellee, Lydia Dorothea Sutter, the beneficiary named in an accident insurance policy issued November 2, 1915, to John H. Sutter, her husband, insuring against “bodily injury sustained directly and independently of all other causes through accidental means.” The insured died June 21, 1915, after suffering 19 days from an attack of ptomaine or food poisoning immediately, following his eating a lunch in a cafeteria. The immediate cause of his death was cerebral hemorrhage or apoplexy. He was about 39 years old, and prior to said sickness was in good health, active and robust. Appellee claims (1) that deceased unintentionally swallowed poison contained in the apparently wholesome food eaten at said lunch; (2) that the poison occasioned the violent sickness of the succeeding 19 days; (3) that the poison and the ‘resulting sickness weakened the blood vessels of the brain and was the direct cause of the apoplexy and death; and (4) that the bodily injury sustained by the unintentional swallowing of the poison contained in apparently wholesome food is, within the meaning of the policy, an injury sustained by accidental means,

j Appellant claims (1) that the proof does not show that poison was swallowed in the food so taken; (2) that the 19 days’ sickness was not occasioned by so taking poison into the system; (3) that, even assuming the poisoning and sickness, it did not result and could not have resulted in the apoplexy and death; (4) that ptomaine poisoning is not a bodily injury "within the meaning of the insurance contract, but is a disease or sickness which may be unintentionally contracted, like typhoid fever, scarlet fever, influenza, and other diseases caused by unintentionally getting in contact with germs.

Except some criticism as to instructions given and refused, the controversy involves only the questions presented'in the above noted conflicting claims.

On the first question the evidence is uncontradicted that ptomaine poisoning immediately followed the eating of the lunch. The condition was one usually caused by poison contained in food. The only doubt suggested rests on the general statement of one of appellant’s expert witnesses that ptomaine poisoning may develop from a diseased condition, or from bacteria within the body aroused by taking normal, healthful food, with no evidence showing, or tending to show, that it did so occur in this case. We think the jury were warranted in finding that the poison was in the food.

On the second question there is no conflict, of testimony—no doubt that the 19 days’ sickness was caused by ptomaine poisoning occurring immediately after eating the food.

Oil the third question, whether the poisoning and consequent sickness caused the apoplexy and death, there is a sharp conflict of expert testimony. The symptoms of the sickness were violent intestinal derangement, headaches, delirium, cold sweats, physical collapse, and other symptoms indicating general poisoning. They were violent for the first week; afterwards there were indications of mental disturbance, and the insured did not leave the second floor of his house. On the day of his death he awoke in the morning in a disturbed mental condition; went to the bathroom, came back to his room, sat in a chair for a short time, then went to bed showing symptoms of exhaustion. About the middle of the forenoon he became completely paralyzed, and died about 4 o ’clock in the afternoon. His attending physician testified that in his opinion the cerebral hemorrhage was caused by weakened condition of the blood vessels, a direct result of the ptomaine poisoning. An expert of standing in the medical profession testified in answer to a hypothetical question, based on the facts stated by the attending physician, that in his opinion the death was brought about by weakening of the walls of the blood vessels by the action of the toxins from the food poisoning setting up an irritation in the membranes of the arteries and blood vessels, and a local irritation in the brain resulting in increased' heart action and blood pressure, which, accompanied by the weakening of the blood vessels, caused the bursting of the vessel in the brain. A toxicologist of much experience testified that ptomaine poisoning might affeet the tissues of the membranes of the brain. Three apparently competent expert physicians called by appellant each testified that assuming the facts as stated by the attending physician, he was of the opinion that ptomaine poisoning did not cause the death, and that ptomaine poisoning could not in the period of 19 days weaken the blood vessels so there would be cerebral hemorrhage from blood pressure. Thus arose a question of fact that could not be answered from the common knowledge of mankind. It was the duty of the jury to weigh the conflicting medical testimony in the light of their knowledge and judgment derived from their experience, observation and reflection. (Springfield Consol. Ry. Co. v. Hoeffner, 175 Ill. 634, 642.) They were presumed to make use of their common knowledge. They are supposed to represent the average intelligence of the community in which they live. Their opinion of the weight and credibility of the conflicting evidence must prevail, unless manifestly wrong. Had any one of the twelve jurors special knowledge and education qualifying him as an expert witness, he should not have injected that special knowledge into the consideration and discussion of the case with his fellow jurors. (Ottawa Gas Light & Coke Co. v. Graham, 28 Ill. 73; 38 Cyc. 1836; 31 L. R. A. 490, note.) It is not a scientific question settled like the law of gravity, of which the court takes judicial notice. So far as this record discloses, it is one of dispute among apparently qualified experts. The subject of disease, its cause and remedy, is one on which intelligent men radically differ. Any judge may have positive convictions on questions so arising, but even were he qualified to testify as an expert, we suppose it would be his duty in passing on the evidence in any given case on a motion for a new trial to accept the verdict of the jury if he believed it was not manifestly against the weight of the evidence, when considered by men .possessing only the common experience and knowledge of mankind. There are no doubt theories of sickness and death so revolting to common sense that they should be rejected even when supported by testimony ; but whether ptomaine poisoning might weaken the blood vessels and cause apoplexy is not in that class of questions, and we conclude the trial judge did not err in accepting that finding of the jury. This poisoning, sickness and death of an apparently healthy man, all within 19 days, leads a layman to conclude it was a case of cause and effect. One of appellant’s expert witnesses said it had that appearance. The court did not err in refusing to direct a verdict for appellant, and another trial would probably result in the same finding by the jury. We are not inclined to reverse the judgment on that ground.

Appellant’s fourth contention is supported by some authority outside of this State resting on the theory that the producing cause of the injury was the eating of the food, which was intentional; that the insured did what he intended to do when he ate the food in question. It was the result only that was unexpected and unintended; that there must be some element of unexpectedness in the preceding act or occurrence which leads to the injury or death to bring the case within the phrase “accidental means.” We think the decided weight of authority is against this position. Our Supreme Court in Healey v. Mutual Accident Ass’n, 133 Ill. 556, held that death caused by accidentally taking poison is produced by “external, violent, and accidental means”; and in Travelers’ Ins. Co. v. Dunlap, 160 Ill. 642, drinking carbolic acid by mistake for peppermint was recognized as an accident within the meaning of the policy. In Higgins v. Midland Casualty Co., 281 Ill. 431, a case of sunstroke, it was argued by the insurance company that the sunstroke was suffered when and while the insured was doing just what he intended to do, and in the way he intended to do it, and therefore the injury was not sustained through accidental means. That position was not sustained by the court. See also Metropolitan Accident Ass’n v. Froiland, 161 Ill. 30, and Hutton v. States Accident Ins. Co., 186 Ill. App. 499.

The Supreme Court of Indiana in the recent case of United States Casualty Co. v. Griffis, 186 Ind. 126, 114 N. E. 83, had the precise question under consideration, death there resulting from ptomaine poisoning in eating mushrooms supposed to be edible, and concluded that the death was from accidental means and not from disease, citing a great number of authorities. The Supreme Court of Michigan in Johnson v. Fidelity & Casualty Co. of New York, 184 Mich. 406, 151 N. W. 593, L. R. A. 1916A 475, held that death by ptomaine poisoning due to partaking of tainted food through mistake is within the terms of a policy insuring against death by accident. The L. B. A. editor says in a note that that conclusion appears to be sound and to be supported by other decisions, which he cites. We see no reason why death caused from the unintentional swallowing of poison contained in apparently wholesome food should not be considered caused by accidental means. Many accidents occur when the victim is doing precisely what he intends to do. He may step on a plank supposing it is safe, when in fact it is decayed and will not support him; or drive an automobile presuming its machinery is in good order and be thrown out because the brake will not work; or drink out of a bottle presuming it to contain a harmless fluid, when in fact it is a deadly poison. We do not see how these cases can be distinguished from eating food that he presumes wholesome, but which, in fact, contains a poison. In each case he is, in a sense, injured when and while he is doing what he intended to do.

It is not claimed there is any provision in the contract restricting the meaning of the phrase “acci-

dental injury” except counsel say a special provision in the policy that blood poisoning- resulting directly from bodily injury insured against shall be deemed bodily injury within the meaning of the policy tends to exclude a construction embracing ptomaine poisoning. This special clause in the policy seems meaningless. There is no doubt that blood poisoning resulting, as there stated, is within the other provisions of insurance. (Central Accident Ins. Co. v. Rembe, 220 Ill. 151.) A special unnecessary provision that an accidental injury to the arm should be held within the terms of the policy would not tend to exclude a claim that an accidental injury to the leg was within its general terms. We conclude that appellant’s fourth contention should be denied.

The court instructed the. jury for the plaintiff if the insured during the period covered by the policy took into his body a poisonous substance with food which he ate supposing it to be nonpoisonous, and that his death was caused thereby directly, or through a chain of circumstances or results caused by such poison so taken into his body independently of all other causes, the plaintiff is entitled to recover; and even though they might believe the death of the insured was directly caused by bodily infirmity or disease, if they further believed from the evidence that such bodily infirmity or disease ivas directly and independently of all other causesx caused by the accidental taking into the body of the poisonous substance, that fact that such bodily infirmity or disease was the immediate cause of the death did not prevent a recovery. Appellant’s objection to these instructions is that they authorize a recovery for death resulting from a poison that might not have been taken into the body with the food in question, but at some former time, and the death might not have occurred within 90 days (the time limit in the policy) from the time the poison was taken. The jury were instructed at the instance of appellant that the burden was on the plaintiff to show “that this bodily injury, if any, though accidentally caused, was the sole cause of death; that if the insured at the time he received the injury in question was suffering from a pre-existing disease which contributed to cause death, there could be no recovery, and if he was suffering at the time from some disease or ailment which combined with the injury to cause death, there could be no recovery.” Those instructions read together and applied to the evidence could not have misled the jury. There was no evidence of poison taken into the system at any other time than that' claimed by the plaintiff. The jury’s attention was directed solely to the eating of the food in question as the source of the poisoning. There was only the suggestion of a possibility that such cases might result from a previous poisoning becoming active through the eating of wholesome food. That was testified to merely as a theory by the expert. There was no proof, or attempt to prove, anything of the kind existed in this case. The court refused to instruct for appellant that if the deceased on June 2, 1916, contracted ptomaine poisoning that of itself was not proof that it was contracted through accidental means directly and independently of all other causes. There was no error in refusing that instruction. If the insured contracted ptomaine poisoning June 2, 1916, which the instruction assumes, there is no question of how it was contracted. "Whether the means should be held accidental was a question of construction of the contract that is argued and decided as a question of law; whether it was independently of all other causes was properly submitted under other instructions given.

Finding no reversible error, the judgment is affirmed.

Affirmed.


text:
    Elsworth Clark and Fred Tess, Jr., trading as Clark & Tess, Appellees, v. The Daniel Hayes Company of Idaho, Appellant.
    Gen. No. 6,698.
    1. Judgment, § 280*—what is proper mode of hearing motion to set aside judgment. A motion to set aside a judgment can be properly heard on affidavits under section 58 of the Practice Act (J. & A. 1Í 8595).
    2. Process, § 2*—when judgment entered against one not appearing is a nullity. Unless there is service in some mode authorized by law, a judgment entered against one not appearing is a nullity.
    3. Judgment, § 289*—when judgment may be set aside for want of service of process. The court entering a judgment against one not served in some mode authorized by law and not appearing has power to set such judgment aside either at the same or a subsequent term.
    4. Process, § 82*—when objection to return of service must be made by plea in abatement. Where objection to the return of service does not appear upon the face of the proceedings, but must be shown by matters dehors the record, the objection must be made by plea in abatement.
    5. Process, § 82*—when return of service on one as agent of corporation cannot be quashed on motion. A return of service, in an action against a foreign corporation, showing service on one as the agent of such corporation cannot be quashed on motion supported by affidavits that the person served was not the corporation’s agent, but the question of his agency is one of fact, to be determined on an issue raised by proper pleadings, and this rule is not altered by the fact that defendant did not learn of the judgment until after it was entered.
    6. Appeal and error, § 1573*—when refusal to open judgment is harmless. Even though the trial court, if requested, should have opened a judgment to permit defendant to plead in abatement, there is no harmful error in refusing to do so for the sole purpose of considering an issue presented by motion that could only be tried on a plea.
    7. Appeal and error, § 1236

      —when party not estopped to allege error. While it would seem that where counsel appear in the trial court and submit a question without proper pleadings or competent evidence and ask a decision on the facts so presented, they cannot afterwards complain as to the method of procedure, such result will not follow where, on a motion to quash a return and vacate the judgment, the record merely shows the parties subsequently objecting to such procedure present, without introducing any testimony, especially where it is not suggested on appeal that their failure to object below estops them.
    Appeal from the Circuit Court of Stark county; the Hon. John M. Niehahs, Judge, presiding. Heard in this court at the April term, 1919.
    Affirmed.
    Opinion filed October 14, 1919.
    Thomas Lindskog and J. H. Rennick, for appellant ; George H. Mason, of counsel.
    F. B. Brian, for appellees.

      See Illinois Notes Digest, Vols, XI tp XV, am) Cumulative Quarterly, same topic put) section number.

   Mr. Justice Carnes

delivered the opinion of the court.

Appellees, Clark & Tess, copartners, commenced this action in assumpsit in the Circuit Court of Stark county against the appellant, an Idaho corporation doing business in Illinois. Summons issued and was by the sheriff of that county returned served on W. L. McAlister, as agent of said corporation. The return was regular on its face. A declaration and affidavit of claim were filed, and on February 11, 1919, judgment by default for plaintiff was entered for $3,200. Afterwards, at the same term of court, appellant entered its special appearance limited to questioning the jurisdiction of the court over the defendant, the return of the sheriff on the summons, and the validity of the judgment, and moved to quash the return and vacate the judgment, averring that McAlister was not at the time of said alleged service, or at any other time, the agent of the defendant; that no writ of summons, or other notice, as required by law, had been served on the defendant, and the defendant bad no notice or knowledge of the pendency of the suit until 10 days after the judgment. Attorneys for the respective parties appeared. Appellant read the affidavit of the alleged agent, McAlister, and another affidavit of John R. Rogers, its vice president; no further evidence was offered. The court denied the motion, and the defendant appealed.

The facts set out in the affidavits tended to support the allegations of the motion. The first inquiry is whether the relief sought can be obtained on motion supported by affidavits.

A motion to set aside a judgment can be properly heard on affidavits under section 58 of our Practice Act (J. & A. Tf 8595), which provides that the court may, during the term, set aside any judgment upon good and sufficient cause upon affidavit. It is not claimed that appellant entered its appearance; therefore, without service in some mode authorized by law, the judgment is a nullity; (Dickey v. City of Chicago, 152 Ill. 468; 15 Corpus Juris, 798) and the court was without jurisdiction to enter it, and had power to set it aside either at the term when it was entered or at a subsequent term. (City of Chicago v. Nodeck, 202 Ill. 257, 268.) It is said in Anderson v. Hawhe, 115 Ill. 33: “Where a court renders judgment against a defendant, where the court has no jurisdiction of the person, no argument is needed to prove that such a judgment is void.”

Appellees urge here that the return of the sheriff could only be questioned by a plea in abatement, or plea to the jurisdiction of the court, and rely on Holloway v. Freeman, 22 Ill. 197; McNab v. Bennett, 66 Ill. 157; Greer v. Young, 120 Ill. 184; Willard v. Zehr, 215 Ill. 148; Griesser v. Taylor, 200 Ill. App. 549, and other Illinois cases in support of the proposition that where process is defective on its face, or the return of service is of itself insufficient, the defect may be taken advantage of by motion to quash or dismiss; but where objection to the return of service does not appear upon the face of the proceedings, but has to be shown by matters dehors the record, the objection must be made by plea in abatement, and say that appellant’s defense in the court below rested entirely on its allegation that McAlister was not its agent within the meaning of our statute providing for service of summons on corporations; that whether or not he was such agent is a question of fact that must be determined on an issue raised by proper pleadings, and not in a summary proceeding by motion and affidavits. The authorities cited are quite clear and explicit in support of appellees ’ position. In Greer v. Young, supra, the court says on page 190 that the trial court in disposing of a similar question upon a simple motion to quash the sendee did not act in harmony with the decisions of that court; that the writ, the service, and return as they appear of record, were in strict conformity with law, but were assailed on account of certain matters alleged to exist dehors the record, and set forth by way of affidavit; that it was simply an attack upon the service founded upon extrinsic facts, and “whatever may be the practice in States where the code system prevails, it is clear the course pursued was not proper”; that the rule established in this State is that where the objection is founded upon extrinsic facts the matter must be pleaded in abatement so that an issue may be made thereon and tried, if desired, by a jury like any other issue of fact. To permit the defendant to try an issue of this kind on affidavit gives him a decided advantage contrary to the spirit of the common law, and in conflict with decisions there noted. While there are Illinois cases in which similar questions seem to have been heard on motion without question, we find nothing in later cases, citing" Greer v. Young, supra, indicating that the court has departed from the rule there announced; on the contrary, it has been frequently recognized and affirmed in our Supreme and Appellate Courts. We note also that the Circuit Court of Appeals for the eighth district considered the question in Grand Island & W. C. R. Co. v. Sweeney, 95 Fed. 396, and held that the practice prevailing in Illinois State courts was contrary to the general rule on the subject in this country as well as in England, and'refused to follow it; but it recognized it as established in Illinois since Holloway v. Freeman, supra. Appellant in its reply brief reaches the conclusion that if it had appeared specially without proper service before judgment, the only proper practice would have been to raise the question of the jurisdiction by plea; but it claims that because it did not learn of the judgment until after it was entered it could properly ask to have the judgment set aside, and the question of fact underlying the validity of the service determined on motion, though it could not have been so 'tried if it had appeared before judgment. No authority is cited for this position. We know of none, and are unable to reach that conclusion.

As we have before said, the application to set aside the judgment was properly made on motion supported by affidavit, but if the judgment was set aside the question of service was left to be decided the same as if no judgment had been entered. The judgment might have been opened and appellant permitted to plead in abatement; but it did not ask that relief, and says here it could not plead in abatement because it did not appear until after judgment. We conclude even though the court, if requested, should have opened the judgment to permit a plea in abatement to be filed, that there was no harmful error in refusing to do so for the sole purpose of considering an issue presented by motion that could only be tried on a plea.

Similar questions seem to have been heard in our trial courts on motion, and reviewed by our Supreme and Appellate Courts without, any question as to the propriety of that practice. Booz v. Texas & P. Ry. Co., 250 Ill. 376, is one of those cases. It may well be that where counsel appear in the trial court and submit a question without proper pleadings or competent evidence and ask a decision of the judge on facts so presented, they could not afterwards complain as to the method of procedure; but in the present case appellees introduced no testimony—the record simply shows them present by counsel when the motion was heard, and appellant does not suggest that appellees’ failure to specifically object below to the mode of procedure estops them from raising the question here.

As presented by counsel, the controlling question is whether the return could be quashed on motion supported by affidavits. And, being of the opinion that because it was regular on its face the matters relied on to impeach it could not be heard in that way,, the order is affirmed.

Affirmed.

Mr. Justice Niehaus took no part.