text:
    L. T. Epps for use of L. C. Braasch, Appellee, v. Illinois Central Railroad Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Garnishment, § 100

      —when evidence insufficient to sustain judgment. In garnishment proceedings where the testimony was conflicting as to whether. the garnishee was indebted to the judgment debtor or had the latter in its employ, evidence held insufficient to sustain the judgment.
    2. Garnishment, § 45*—when court no jurisdiction of action to garnishee wages earned-outside State. Under Hurd’s Rev. St., 1911, ch. 62, sec. 34a (J. & A. If 5965), a court has no jurisdiction of an action to garnishee' wages earned outside of the State in the absence of personal service of process on the original debtor.
    Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Garnishee proceedings by L. T. Epps for the use of L. C. Braasch, plaintiff, against Illinois Central Railroad Company, defendant. From a judgment for plaintiff, defendant appeals.
    Kramer, Kramer & Campbell, W. H. Hebenstreit and R. H. Wiechert, for appellant; John G. Drennan, of counsel.
    No appearance for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice McBride Per Curiam.

license: Public Domain

text:
    Thomas Kearney and Henry Becker, Appellees, v. Charles Webb, Appellant.
    1. Contracts, § 157

      —when no recovery may he had on illegal contract. The general rule is that a contract made in violation of a statute is void, and when a plaintiff cannot establish his cause of action without relying upon the illegal contract he cannot recover.
    2. Gaming—when gaming house proprietor may not recover from State’s Attorney money seized in raid. Money furnished by a proprietor of a gaming house to his employees for use at gaming tables which was seized by officers at the time of making a raid on the house and is in the possession of the State’s Attorney may not be recovered in an action by such proprietor against the State’s Attorney.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed.
    Opinion filed April 17, 1916.
    Dan McGtlynn and T. M. Webb, for appellant.
    O. E. Chamberlin and Louis Klingel, for appellees.

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

   Mr. Justice McBride

delivered the opinion of the court.

It appears from the record in this case that on and prior to January 18, 1913, appellees were engaged in conducting a gaming house in the City of East St. Louis, wherein craps and other gambling games were played by divers persons, in violation of the statute of Illinois. The appellees did not operate the gaming room in person but had in its employ John Schneider, John Maguire and a man by the name of Rosenberg who had charge of the gaming tables and operated them for appellees. On the date aforesaid appellees' gave to these employees the amount of $1,600 in silver, contained in three sacks, to be used by them “To bank the games.” The employees had been engaged in the game at tins time for an hour or more and quite a number of persons were there also betting upon the game. The evidence shows that the bets ran from twenty-five cents to four dollars; that during the time the game had been in operation the employees had lost about $60 of the money furnished them by appellees. About this time a raid was made by the police officers, under the direction of the State’s Attorney of St. Clair county, upon this gaming house and the tables and other paraphernalia used in conducting the game and the money that had been furnished by appellees to its employees was seized by the police officers and the money delivered to the State’s Attorney, the appellant in this suit, who counted it and found it to amount to $1,536.75. This money was taken in charge by appellant and has been retained by him from that day to the present time. The appellees Were fined for a violation of the criminal code and paid their fines, and thereafter this suit was instituted by them to recover this money from the appellant.

The case was tried in the Circuit Court of St. Clair county, and at the close of all of the evidence upon motion of the plaintiff the court directed that a verdict be returned in favor of the plaintiffs for the said amount of $1,536.75, and judgment rendered therefor, and it is sought by this appeal to reverse the judgment of the court. The declaration filed consisted of the common counts, and to this defendant filed the plea of general issue.

There is not much dispute as to the principal facts involved in this case, and as to the facts that are in dispute we regard them as unimportant in the determination of the issue. It appears clearly from the evidence that the money here sought to be recovered was furnished by appellees to their employees to be used by them in operating a gaming house, and it is contended by counsel for appellant that inasmuch as the money was furnished by appellees for an unlawful purpose and to be used in violation of the criminal code that the appellees aré prohibited, because of public policy, from having the aid of the courts to enforce a return of this money. It has been often decided by the Supreme Court of this State, and seems to be the policy of most of the States, that money furnished to be used in gambling, or for the malting of bets, wagers or gaming purposes cannot be recovered by a suit at law. In the case of Shaffner v. Pinchbach, 133 Ill. 410, where two men had contributed $1,000 each to a fund to be used in a bookmaking business at a horse race, it was sought by Shaffner to recover $1,000 of this money, but the court upon the trial instructed the jury that if they believed from the evidence the parties to the suit each contributed $1,QQ0 for the purpose of betting and wagering on horse races that the plaintiff could not recover, and the Supreme Court in passing upon this says; ‘1 They were, in respect to such business, in pari delicto, and the law will refuse its aid to assist either, but will leave them in the positions in which they have placed themselves. Plaintiff in error having embarked his money in an enterprise prohibited alike by the statute, by good conscience and by public policy, placed himself and his money outside of the pale of the law, and if he has been despoiled by the failure of his associate to account for the funds placed in his hands for the purpose of carrying on the unlawful business, then both good morals and public policy require that the law should not aid him/’

“The general rule of law is, that a contract made in violation of a statute is void, and that when a plaintiff cannot establish his cause of action without relying upon the illegal contract he cannot recover. * * *

“One who has parted with his property under a contract which is against public policy cannot maintain replevin for it. The. law will leave the parties in the situation in which they have placed themselves.” Bishop v. American Preservers’ Co., 157 Ill. 284.

In the case last above referred to the court in the opinion refers and quotes approvingly from the case of Hutchins v. Weldin, 114 Ind. 80, as follows: “The law in such a case will leave the parties just where it finds them. If the contract has not been executed, it "will not be enforced; if it has been executed, the law will not extend relief. Where a contract void as against sound morals or public policy has been fully executed by both parties, and suit brought under, upon or against such contract, potior est conditio defendentis.” “Each party is left precisely where he is found at the time of the controversy to bear the burden of his own abandonment of his duty to the law of his country.” (Story on Agency (8th Ed.) sec. 195.)

Indeed it is conceded by counsel for appellee upon the argument in this case, that if this were a suit by appellees against its employees to recover back the money furnished that the action would not lie. But they insist that where a third party, as the State’s Attorney in this case, has obtained the money, that this rule cannot be invoked, and the action will lie. The difficulty about that position, as we see it is, that the rule as laid down by the authorities is directed at and prohibits persons who have engaged in the furnishing of means under such conditions from having any right of action in the courts, and that by the act of furnishing the money for an unlawful purpose they are placed without the pale of the courts and cannot have the aid of the courts to recover their money.

It is also claimed by counsel that the Supreme Court in the case of Glennon v. Britton, 155 Ill. 243, in speaking of property of this character, says: “If it is of the obnoxious class which the law condemns, it is very doubtful if it can be deemed the subject of property or any one the owner of it. If, on the other hand, it be harmless and moral, or not of the class to be condemned and destroyed, it can be restored to the party from whom it was taken, and no one be injured by the proceedings. ’ ’ And then insists, as we think properly, that money is of that class that cannot be destroyed. It would be unlawful to destroy it, as it is of itself harmless. One of the difficulties of the contention of counsel upon this point is, that the persons from whom the money was taken are not seeking to recover in this suit.

It is also contended that this money does not belong to the State’s Attorney but in equity and justice belongs to the appellees, and insisted that as the State’s Attorney has no title or right to retain this money that an action at law is given to appellees because of the fact that they are the real owners, and many authorities are cited in support of this proposition of law and to the effect that where one person has money justly belonging to another that such other can institute a suit at law and recover therefor, even though no privity of parties exist. This we believe to be a correct interpretation of the law in proper cases, but the difficulty in this case is not in the right of action but in the right of appellees to bring the action. The appellees, as above stated, are without a right of action in the courts to recover this money that they had parted with for an unlawful purpose; to make it clear, the appellees are prohibited by law from having the aid of the courts to restore them to their rights as to this money, and so far as the appellees are concerned we can see no reason why the courts would aid them any more readily to recover the money from the State’s Attorney than it would to recover it from the employees, as the same principle would apply in one case as it does in the other, that is, that the appellees are deprived of the use of the courts for the purpose of enforcing such claims.

We are of the opinion that the trial judge overlooked the fact that appellees were by their conduct foreclosed from using the courts to recover money furnished by them to be used at gaming, and that the court erred in directing a verdict for the plaintiff, and the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.

ADDITIONAL OPINIÓN.

Per Curiam.

Upon further consideration of this case, and in view of the fact that there is no controversy concerning the controlling facts, and as the judgment heretofore rendered at the present term of this court is based entirely upon its application of the law to the uncontroverted facts, the judgment in this case will be reversed but the cause will not be remanded, and the opinion heretofore filed is modified to that extent.

Reversed.


author: Mr. Justice McBride

text:
    Prosper J. Soucy, Appellant, v. Jacob Rothschild, Appellee.
    (Not to be reported in full.)
    Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vakdeventek, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Bill by Prosper J. Soucy, complainant, against Jacob Rothschild, defendant, for a mechanic’s lien. From a judgment for complainant, the complainant appeals and defendant assigns cross-errors.
    It appeared that in the fall of 1914, defendant was about to erect a dwelling and storeroom on the premises owned by him in East St. Louis, in which there would be required a considerable amount of plumbing. Sam Jones, a friend of Paul Meeker, recommended to defendant that he employ Mr. Meeker to do this work. Meeker called upon defendant and talked with him about his plumbing, and, as he claimed, told defendant that complainant was interested with him in the plumbing business, and estimates were submitted by Meeker to defendant upon his work of plumbing; that before the contract was entered into Meeker and defendant had a further conversation in which Meeker agreed to purchase some clothing of defendant if he obtained this contract, and the contract was awarded to Paul Meeker on September 10, 1914, and a written contract was then prepared and signed by Paul Meeker and the defendant, by which contract it was provided that Meeker was to do the plumbing for defendant and have it completed by the 1st of December, 1914; that it was to be performed in a good, substantial and workmanlike manner, and in conformity with the plans and specifications made by the architects. It was further provided in said contract “that should the party of the second part fail to have the work finished on or before the time above specified, December 1, 1914, he shall pay to or allow the party of the first part the sum of two dollars for each and every day thereafter that said work shall remain incomplete,” and the price stipulated to be paid for the work was $1,050. Meeker entered upon the performance of this contract, but did not complete the work by December 1st. Prior to the filing of the bill by complainant, defendant secured a loan upon said. premises for the amount of $4,000, and $902 was held by the mortgagee for the payment of the plumbing, and afterwards, by the consent of all persons interested, $500 was paid by the mortgagee to the plaintiff. Complainant claimed that there was extra work done and an allowance was made to him for a small amount for extra work. It was further contended by complainant that while the contract for the performance of this work was signed by Meeker in his individual name, that the contract was, in fact, entered into by him for the East St. Louis Plumbing and Heating Company owned by the complainant. Defendant claimed that his contract was solely with Meeker and that he was entitled to credit for the clothing purchased by Meeker and also for damages for not completing the work within the time specified in the contract.
    The evidence was conflicting as to whether defendant had knowledge of the partnership of Meeker with complainant. Meeker started the work, but the contract was assigned to complainant and he completed it.
    After Meeker had left the work of plumbing and defendant knew that the contract had been assigned to complainant, and on March 22, 1915, defendant wrote complainant a letter in which he stated: “If this work is not completed as provided under said contract within a reasonable time, I shall secure someone else to complete said work, and the costs thereby incurrecl from said contract shall he deducted from said contract price of $1,050,” complainant immediately sent his men to do what was necessary to complete the contract, and, as he contended, did complete it. On several occasions defendant stated that he was ready and willing to pay the contract price if they would deduct the $105 for the clothing, and when he made his answer he did not set up and claim that complainant was owing or that there should be deducted from the contract price this or any other amount.
    Abstract of the Decision.
    1. Building and construction contracts, § 103

      —when evidence sufficient to show contract with member of partnership individually. On a bill to foreclose a mechanic’s lien where defendant claimed that he entered into a plumbing contract with a third person individually and not with the partnership of which complainant and such third person were members, where the evidence was conflicting, evidence held sufficient to sustain a finding that defendant believed he was contracting with such third person individually and that according to such contract the expense of certain merchandise sold by defendant to such third person was to be deducted from the contract price.
    2. Appeal and error, § 1414*—when finding of trial court not disturbed as against weight of evidence. A finding of a trial court will not be disturbed as against the weight of the évidence where there is some evidence to sustain it.

      In addition to this, when defendant made his loan he provided a fund of $902 and left same in the hands of the mortgagee to pay the plumbing bill, and took possession of the house without at any time making any claim for such damages until during the trial of this suit.
    W. L. Coley, for appellant.
    E. J. Verlie, for appellee; C. B. Thomas, of counsel.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

3. Building and construction contracts, § 49 —when provision for liquidated damages- for delay in finishing building contract waived. A provision in a building construction contract for the payment of a certain sum for each day of delay in completing the contract as liquidated damages is waived, where, after an assignment of the contract to a third person, complainant, with knowledge of defendant, as owner the latter wrote a letter to complainant that if the work was not completed within a reasonable time defendant would procure some one else to do the work and the costs would be deducted from the contract price, and complainant completed the work, and defendant repeatedly offered to settle if complainant would deduct the amount pf merchandise purchased by the original contractor, which was to be deducted under the terms of the original contract, and defendant failed to set up in his answer that complainant owed him any amount which should be deducted, and, when he made a loan he left money with' the mortgagee to pay the bill, and he took possession of the premises and made no claim for damages until the trial of the suit.

4. Appeal and error, § 1383*—when action of chancellor in apportioning costs not reviewed. The chancellor may apportion costs in an equitable action where complainant recovers only part of his claim, and his apportionment will not be disturbed unless it is of such a character as to be offensive and manifestly unjust.

5. Costs, § 19*—when chancellor did not abuse discretion in apportionment of costs. The chancellor did not abuse his discretion in apportioning the costs between complainant and defendant in an action to foreclose a mechanic’s lien, where defendant had offered to settle upon deduction of a sum that he was legally entitled to deduct under the terms of the contract with complainant’s assignor and complainant recovered the amount of the contract less such deduction. ,


text:
    Hester Duncan, Administratrix, Appellant, v. Centralia Coal Company, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by Hester Duncan, administratrix of the estate of Waverly Duncan, deceased, plaintiff, against Centralia Coal Company, defendant, to recover damages for death of plaintiff’s decedent while working in defendant’s coal mine. From a judgment for defendant on a directed verdict, plaintiff appeals.
    Defendant operated a coal mine near Centralia, Illinois, and there were used in connection with the operation of such mine four tracks, and they appeared to have been located with what is called the run around track on the west, the egg track next to it on the east, the lump track next and the screening track next. They were all located west of the hoisting shaft. The run around track was used for the purpose of supplying the mines with cars to be loaded, and at the time in question they had been engaged in loading a car of lump coal which was standing upon the lump track. The business of the decedent was to trim the car after it was loaded. He threw off the refuse matter between the tracks, and then afterwards it became his duty to take this refuse matter and throw it on what was called the dump west of the run around track. The cars on the run around track were operated by means of a cable working over a drum moved by an engine and called a car puller. On the day in question this car puller was operated by the superintendent of the mine. The injury happened south of the mine where there was an tip grade to the mine. After the deceased had thrown off the refuse matter from the car he then took a wheelbarrow, picked up this refuse matter bétween the egg and lump tracks and began wheeling it out upon the wheelbarrow, running it forward until he reached the egg track, and then turned backward and pulled the wheelbarrow over the egg track, and had just pulled it over the east rail of the run around track when the ear struck him and killed him. It also appeared that two of the witnesses had attempted to warn him of the approach of the car by hallooing at him.
    The declaration alleged: “That it was the duty of the defendant to furnish the plaintiff’s decedent with a reasonably safe place in which to work and to exercise reasonable care to give him notice and warning of the approach of any cars upon or along said side track or switch track, so as not to endanger the life of the plaintiff’s decedent or to render his working place unsafe. Yet the said defendant did not regard its duty in that behalf but on the contrary negligently and carelessly moved and operated the said cars upon and over the said side track or switch track without giving to the plaintiff’s decedent any notice or warning of the approach of said cars; whereby and by means whereof while plaintiff’s decedent was working pursuant to his employment and crossing the said track the said car, without any notice or warning to the plaintiff’s decedent, ran to, against, upon and over the deceased.” Whereby he was instantly killed. The declaration also alleged that the defendant had elected not to operate its mine under the compensation act.
    It appeared from the evidence of all of the witnesses that the mine at the time of the injury was being operated in the usual and customary way; that the machinery was in good repair, that the roadbed was in a safe condition, that the car at this time was being hauled by this car puller in the usual way, and that the deceased was engaged in Ms usual employment and in the usual manner. The deceased had been at work there at this same business for about one year, knew all about the movements of the cars, and knew that they were moved without notice or warning.
    Abstract of the Decision.
    1. Mines and minerals, § 80

      —when duty of owner to furnish employees with reasonably safe place to work. It is the duty of the mine owner to furnish his employees with a reasonably safe place to work.
    2. Workmen’s Compensation Act, § 2*—when assumed risk and contributory negligence no defense in action at common law. The right of the representative of a deceased employee to recover in an action at law for the employee’s death against a master who has elected not to operate his mine under the Workmen’s Compensation Act cannot be defeated by reason of any contributory negligence or assumed risk* of deceased.
    3. Mines and minerals, § 107*—when no duty devolves upon mine owner to warn experienced employee of danger. In the absence of a statute no duty devolves upon a mine owner to give warning to an experienced employee, engaged in wheeling refuse from a loaded car over an intermediate track and across a switch track, of the movement of an empty car on the switch track, which was used to supply the mine with cars to be loaded and which cars were operated by means of a cable working over a drum moved by an engine, where the mine at the time of the injury to the employee by a car on the switch track is operated in the usual way. and the track and machinery are in good condition, and there are no exceptional circumstances necessitating a warning in the particular case.
    L. B. Skipper and Charles H. Holt, for appellant.
    Bundy & Wham and Noleman & Smith, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

4. Mines and minerals, § 185 —when verdict properly directed. A verdict is properly directed for the defendant in an action hy the. representative of an employee for the employee’s death, where the duty to give warning to deceased of a movement of a car, and negligence in operation which are the basis of the action, are not shown to exist.


text:
    Etta Jane Johnson, Appellee, v. Charles E. Hull and Harry Redfearn, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Rehearing denied May 25, 1916.
    Statement of the Case.
    Action by Etta Jane Johnson, plaintiff, against Charles E. Hull and Harry Bedfearn, defendants, for damages for personal injuries due to the collision of defendant Hull’s automobile, which was operated by defendant Bedfearn as servant of defendant Hull, with plaintiff’s buggy. From a judgment for plaintiff for eight hundred dollars, defendant Hull appeals.
    Each count of the declaration charged that on the date of the injury, defendant Hull was the owner of and conducting a garage, in the City of Salem; that .he owned divers automobiles which he let for hire and reward; that he had in his employ the defendant Harry Bedfearn as a driver of said automobiles, and on the date in question he let for hire one certain automobile, and furnished as a driver thereof the defendant Bedfeam. The only plea filed was the general issue.

      There was evidence tending to show that defendant Hull was operating a garage in the City of Salem; that he kept and used automobiles therein for livery purposes ; that Eedfearn was a licensed chauffeur; that he was in the employ of defendant Hull, worked about the garage, also as a driver of cars used for livery purposes; that as a part of the terms of his employment, Eedfearn had a right to have and use an automobile of defendant Hull, two evenings of each week; that the automobile in the collision belonged to defendant Hull and was driven by Eedfearn; that at the time of the accident, Eedfearn was using the car for livery purposes, carrying passengers for hire, and received pay for such services; that in the collision the car was damaged and Eedfearn immediately thereafter obtained another car belonging to defendant Hull, and took plaintiff to her home in the country; that after this collision, the owner of the buggy brought suit for damages against defendants Hull and Eedfearn before a justice, recovered a judgment, and that judgment was paid by defendant Hull; that when spoken to about this accident, and in reference to a settlement with plaintiff, defendant Hull stated in substance that he would have to see Dick (meaning Bedfearn) and find out how it occurred, and if it was his (Eedfearn’s) fault, they had better settle the matter.
    Charles H. Holt, for appellants.
    T. E. Merritt and Kagy & Vandervort, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

Abstract of the Decision.

1. Pleading, $ 389 —what constitutes matter of inducement not traversed by general issue. An allegation in a declaration in an action against the owner of an automobile and his servant for damages for personal injuries alleged to be due to the negligent driving of the automobile by the servant, that one defendant was in the employ of the other is mere matter of inducement and is not traversed by the general issue, and is consequently admitted.

2. Pleading, § 389*—how question of relation of master and servant raised by defendant. The issue as to relationship of master and servant between two parties defendant should be raised by a special plea.

3. Automobiles and garages, § 2*—when question whether relar tionship of master and servant existed and whether servant acted within scope of authority for jury. In an action for damages for personal injuries against a garage proprietor and his alleged servant for damages for personal injuries due to the collision of an automobile owned by the alleged master and driven by the alleged servant, held that under conflicting evidence that the question whether the relationship of master and servant existed at the time of the accident and whether the alleged servant acted within the scope of his authority was for the jury.

4. Instructions, § 1256*—when party may not complain of favorable instructions. A party cannot complain of instructions for the adverse party which are more favorable to him than to the adverse party.

5. Instructions, § 120*—when instruction not in conformity with issues properly refused. A requested instruction not in conformity with the issues is properly refused.

6. Instructions, § 151*—when requested instruction embodied in given instructions properly refused. A requested instruction covered by the main charge is properly refused.

7. Appeal and. error, § 1633*—when improper remarks of counsel harmless error. Improper remarks of counsel are harmless error where withdrawn after objection, and the trial court instructs the jury to disregard them.


text:
    George Hippard et al., Appellants, v. George O. Rebhan, Administrator, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Bill by George C. Rebhan, administrator de bonis non with will annexed of the estate of Phillip John Gundlach, deceased, complainant, against George Hippard, Elizabeth A. Hippard and Adam Karr, defendants, to foreclose a mortgage. From a judgment for complainant of foreclosure and for appointment of a receiver, defendants appeal.
    On April 25, 1902, the defendants executed to Phillip John Gundlach two notes each for the amount of $2,500, due one year after date and bearing interest at the rate of five and one-half per cent, per annum, payable semiannually, and to secure the payment of said notes executed the mortgage in question. It appears that on October 28, 1902, April 25, 1903, October 25, 1903, April 25, 1904, October 25, 1904, April 25, 1905, January 22, 1906, April 25, 1906, October 25, 1906, April 25, 1907, October 25, 1907, April 25, 1908 and October 25, 1908, the amount of $68.25 was paid at each of said times upon each of said notes, and indorsed thereon as interest paid. It also appeared that Phillip John Gundlach kept a book in which he entered his notes and these payments appear upon said book as having been made at the time indorsed upon the notes. A further payment was made on May 28,1909, but this was entered by Sophia Gundlach, at the direction of Phillip John Gundlach. Phillip John Gundlach died July 1, 1909, leaving a last will and testament, and appointed Ms sons Jacob, Jr. and PMllip as executors, both of whom died during the year 1913, and on January 3, 1914, letters testamentary were issued to George C. Rebhan, and this suit of foreclosure was commenced on March 31, 1914.
    It appeared that the lands described in said mortgage were in two separate tracts, one of which belonged to Elizabeth A. Hippard and one to George Hippard, and that said lands were sold and transferred by the said Hippards to Adam Karr. It further appeared that at the several times of payment of interest above mentioned being made, Phillip John Gundlach made a certificate of deposit and placed the amount each time to his credit in the Belleville Savings Bank, and upon the same, or the next day, the checks so placed to his credit were cleared at the Belle-ville Bank and Trust Company, and charged to the account of George Hippard, the Hippard Grocery Company or the Vulcan Coal and MiMng Company, and that the checks were afterwards surrendered by this bank to the parties drawing them.
    In many cases the exact amount was charged to the account of one or the other of these parties; and in other cases where the checks that were cleared by the Belleville Bank and Trust Company were more than three in number, they were lumped together and appear charged in a large sum. On January 27, 1906, the account of Phillip John Gundlach was credited in the Belleville Savings Bank with $137.50, and on the same day George Hippard was charged with $137.50 upon his account with the Belleville Bank and Trust Company, and on May 5,1906, a like sum was credited to the account of Phillip John Gundlach and charged to the account of George Hippard, and the checks with which George Hippard was charged were surrendered to him by the Belleville Bank and Trust Company. The date and amount of these chécks corresponded with the date and amount indorsed upon the notes as interest paid.

      Abstract of the Decision.
    1. Mortgagers, § 433

      -—when running of statute of limitations on mortgage tolled by payment on note. Where a payment has been made upon a note by the maker thereof, or by his authority, the statute of limitations will not run against the mortgage securing the note until the lapse of ten years after the payment.
    2. Mortgages, § 433*—when running of statute of limitations on mortgage tolled. The mere indorsement of payments by debtor on notes secured by mortgage by the creditor without some affirmative act or authorization by the debtor is insufficient to toll the statute of limitations on the mortgage.
    3. Evidence, § 40*—what is effect of unexcused failure to produce material documentary evidence. The failure of the defendant in an action to foreclose a mortgage to produce checks, the dates of which correspond with the dates of alleged payments on a note claimed by defendant to be unauthorized credits not tolling the statute of limitations on the note and mortgage, warrants the presumption that the production thereof would be unfavorable to the defendant.
    4. Payment, § 29*—when evidence sufficient to show authorized application of interest on note. On a bill to foreclose a mortgage, the defense to which was barred by the statute of limitations, but where it appeared that payments of interest were indorsed upon the note within ten years of the date of the commencement of the action at the time that checks were given by defendant for such amounts and deposits for such amounts made in a bank by the creditor, evidence held sufficient to show that the payments were made by defendants to pay the interest on the note.

      Notice was given the defendants to produce these checks in evidence but they failed to do so. The Hippard Grocery Company was owned by George Hippard and his wife, Elizabeth A. Hippard, and George Hippard was president and Elizabeth A. Hippard secretary of the Vulcan Coal and Mining Company from 1905.
    R. W. Ropiequet, for appellants.
    Schaerer & Kruger, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

5. Mobtgages, § 433 —when lien of mortgage kept alive by payments by one joint debtor enforceable against mortgaged premises. While a personal payment on a joint and several note by one of two joint debtors without the consent or knowledge of the other will not operate to bind the other so as to authorize a new promise taking the case out of the statute of limitations, still a mortgage given to secure such a note will operate as a lien on the mortgaged premises so long as the payments of the note may he enforced against either joint debtor and until the debt is extinguished, and it is immaterial that one of the mortgaged tracts belonged to one debtor and the other to the other debtor.

6. Appeal and ebbob, § 1327*—when presumed that court heard evidence authorizing appointment of receiver. Where a decree authorizes the appointment of a receiver, it will be presumed that the trial court heard evidence authorizing his appointment, especially in absence of the showing of a reason why the court erred in the appointment.

7. Appeal and ebbob, § 1414*—when finding of court not disturbed as against weight of evidence. A finding of a trial court will not be disturbed as against the weight of evidence where it is supported by clear evidence.


text:
    The People of the State of Illinois ex rel. Elijah H. Marteeny et al., Appellees, v. Martin Henn, Town Clerk, Appellant.
    Roads and bridges, § 243

      —when petition for special election for return to old system of three highway commissioners may he made. Under the Roads and Bridges Act of 1913, art. 9, secs. 159, 166 [Cal. Ill. St. Supp. 1916, 1HÍ 10,000 (159), 10,000 (166)], where a town has adopted the system of one highway commissioner, a petition for a special election for a return to the old system of three highway commissioners may be made at any time, and it is not necessary that the period of three years referred to in the prior section expire, as such limitation refers only to a new election of a single highway commissioner.
    Appeal from the Circuit Court of Jefferson county; the Hon. Charles H. Milleb, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Gr. L. Orb and Conrad Schul, for appellant; William H. Green, of counsel.
    Joel F. Watson, for appellees; G. Gale Gilbert and Egbert M. Farthing, of counsel.

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

   Mr. Justice McBride

delivered the opinion of the court.

It appears from the record in this case that the county of Jefferson is under township organization, and that on March 3, 1914, the Town of Mt. Vernon in said county held an election and adopted the single highway commissioner system, as provided in article 9 of an Act entitled: “An Act to revise the law in relation to Eoads and Bridges,” approved June 27, 1913 [Cal. Ill. St. Supp. 1916, [¶] 10,000 (158) et seq.]; that at the annual town election held in said town in April, 1914, the voters thereof elected one highway commissioner, as provided by said article. It further appears that thereafter and on about November 18, 1914, a petition addressed to Martin Henn, town clerk of the Town of Mt. Vernon, signed by more than two hundred persons alleging that they were legal voters of said town, requested said Henn to call a special election for the purpose of submitting to the electors of said town the proposition for withdrawing from the single highway commissioner system heretofore adopted, and returning to the general provisions of said act. This petition together with two others, containing one hundred persons alleging that they were legal voters, were filed with said town clerk on November 20, 1914, requesting such election to be called.

The said town clerk refused to call such election as petitioned for, and thereupon Joel F. Watson, State’s Attorney of Jefferson county, and Elijah Marteeny, C. F. Burke and others, filed a petition to the April term, 1915, of the Circuit Court of Jefferson county, setting forth the foregoing facts, and asked that a mandamus issue directed to the said Martin Henn as town clerk, commanding him forthwith to call a special election and post notices thereof as required by statute, for the purpose of submitting to the voters of the said town said proposition. The defendant, Martin Henn, town clerk as aforesaid, filed a demurrer to the said petition, which demurrer was overruled by the Circuit Court, and judgment rendered thereon in favor of petitioners, and ordered the writ of mandamus to issue, to which order of the court the defendant excepted, and appeals to this court to reverse such judgment.

It is contended by counsel for appellant that inasmuch as the question of the adoption of the provisions of article 9 [Cal. Ill. St. Supp. 1916, ¶ 10,000 (158) et seq.] was submitted to the legal voters of the Town of Mt. Vernon on March 3,1914, and that the voters at such election adopted the single highway commissioner system and elected a single highway commissioner at the annual town meeting, that the question of returning to the system of electing three highway commissioners could not be again submitted to the legal voters of the town within three years from the adoption of such system. The determination of this question depends upon a construction of the several sections of article 9 of “An Act to Revise the Law in Relation to Roads and Bridges,” approved June 27, 1913. [Cal. Ill. St. Supp. 1916, ¶ 10,000 (158) et seq.] Section 158 of said Act [Cal. Ill. St. Supp. 1916, ¶ 10,000 (158)] is as follows: “The provisions of this article shall become effective in any township or road district in this State upon the adoption of the same by the legal voters of such township or road district as hereinafter provided, and not otherwise.” Section 159 [Cal. Ill. St. Supp. 1916, ¶ 10,000 (159)] provides: “At any time following the passage and approval of this Act upon petition of not less than twenty-five of the legal voters of any township or road district, the town or district clerk thereof shall, within thirty days thereafter, call a special election at which there shall be submitted to the voters of such town or road district the question of having a single highway commissioner in such township or road district: Provided, however, that no such election shall be held within a period of thirty days next preceding any annual town or road district election, and the elections for the purposes specified in this section shall not be held oftener than once in three years.” Sections 160 and 161 [Cal. Ill. St. Supp. 1916, ¶¶ 10,000 (160), 10,000 (161)] provide for the giving of notice and the ballots, and section 162 [Cal. Ill. St. Supp. 1916, ¶ 10,000 (162)] provides: “If a majority of the legal voters voting at said special election shall vote in favor of the proposition, 1 For Single Highway Commissioner System, ’ then and thereafter, and until said vote shall be reversed in the manner hereinafter provided, the provisions of this article shall be effective in such township or road district, and in said township or road district there shall be but one highway commissioner to be elected as hereinafter provided.” Section 166 [Cal. Ill. St. Supp. 1916, ¶ 10,000 (166)] provides the manner in which such town may withdraw from the provisions of this article and is as follows: “Any town or road district having adopted the provisions of this article may withdraw from the provisions thereof and elect to come under the general provisions of this Act whereby three highway commissioners are provided for in each town or road district. Such withdrawal from the provisions of this article shall by the vote of the legal voters, of such town or district, and provisions therefor may be inaugurated by petition to the town or district clerk, in the manner provided in section 161 of this Act. Upon the filing of such petition a special election therefor shall be called and conducted, and the result thereof declared as provided in sections 161, 162 and 164 of this Act: Provided, that no such special election shall be held within a period of thirty days preceding the second Tuesday in April in any year. At said special election the proposition petitioned for and submitted to the voters shall be as follows: ‘For continuing the single Highway Commissioner System/ and ‘Against continuing the single Highway Commissioner System.’ A majority of all the voters voting at such election shall be required to withdraw such town or road district from the provisions of this article, and after any town or district has voted to withdraw from the provisions of this article, no special election shall be called to return to the provisions of this said article for a period of at least three years. ’ ’

It will be observed that an election held under section 159 is for the purpose of adopting the provisions of article 9 with reference to the single highway commissionership, and that no other election is referred to in this section, and the section contains this limitation: “And elections for purposes specified in this section shall not he held oftener than once in three years.” This limitation, in our judgment, could not be held to apply to any election, except the one specified in this particular section as it contains specific language limiting it to such elections as are held under this section. Section 166 is upon an entirely different proposition, towit, that of withdrawing from the provisions of this article, and provides that: “Any town or road district having adopted the provisions of this article may withdraw from the provisions thereof and elect to come under the general provisions of this act whereby three commissioners of highways provided for in each town or road district.” It then at the conclusion of the section provides for a limitation upon returning to the provisions of this article and is in words as follows: “A majority of all the voters voting at such election shall be required to withdraw such town or road district from the provisions of this artide, and after any town or district has voted to withdraw from the provisions of this article, no special election shall be called to return to the provisions of this said article for a period of at least three years. ’ ’

It appears to us that the Legislature in adopting this statute had in mind that all the towns within the State were under the former Eoad and Bridge Act, and all had adopted and were acting under the system of having three highway commissioners, and that it intended by this article 9, above referred to, to give such towns an opportunity to try this single highway commissioner system and if they were not satisfied with it to return to the old system of three highway commissioners at any time that the voters saw fit so to do, and for that reason section 166 provided that a petition might be submitted for such an election at any time. It seems to us that the Circuit Court was clearly right in overruling the defendant’s demurrer and in ordering the writ of mandamus, and the judgment of the lower court is affirmed.

Affirmed.


text:
    Mary E. Moats, Appellant, v. William E. Moore, Conservator, Appellee.
    1. Courts, § 95

      —when County Court presumed to have jurisdiction. A County Court is a court of general jurisdiction and as liberal intendment must be made in favor of its jurisdiction as of the Circuit Court.
    2. Courts, 95*—when County Court presumed to have jurisdiction of insanity proceedings. It will be presumed that a County Court had jurisdiction both of the person and of the subject-matter in insanity proceedings.
    3. Insane persons, § 10*—when notice to alleged insane person unnecessary in insanity proceedings. No notice to an alleged insane person is necessary in proceedings to determine sanity where the person is brought before the court.
    4. Insane persons, § 83*—when judgment of County Court in insanity proceedings may not he impeached.' A judgment of a County Court in insanity proceedings imports verity, and it may not be impeached by parol testimony of the clerk of the court showing that no notice was issued to the alleged insane person.
    5. Insane persons, § 73 *—when question of jurisdiction of person in insanity proceedings waived. The question of the jurisdiction of the person of an alleged insane person by a County Court in insanity proceedings is waived where such person since the adjudication of insanity presents a petition to the County Court of another county, her petition averring the existence of an order of the County Court in the insanity proceedings declaring her insane, the order of the County Court appointing a certain person as conservator and asking that the court take jurisdiction of the subject-matter and compel such conservator to render an account and that he be discharged as such conservator.
    6. Insane persons—when County Court has power to call jury to determine fitness of sane person to care for property in proceedings to remove conservator. A County Court after a formerly insane person has been declared sane in habeas corpus proceedings, and proceedings are taken to remove a conservator, has the power to summon a jury to determine whether or not the applicant is á fit person to have the care of her property.
    7. Insane persons—when instruction in proceedings to remove conservator not misleading. In an action by a formerly insane person who had been declared sane in habeas corpus proceedings to remove the conservator of her estate, an instruction setting forth the habeas corpus proceedings, the finding of the plaintiff to be sane, the rescission of the judgment of insanity, and further stating that in contemplation of law she was sane and was immediately entitled to all her rights and privileges that she had been entitled to before the adjudication of insanity, which was modified by the addition of the clause “unless other statutory causes are presented and proven by the evidence showing that the conservator appointed by petitioner ought not to be removed,” held not misleading because not stating what the statutory causes referred to were, especially where the court stated in other instructions that if plaintiff was a spendthrift and liable to waste her property then the conservator should not be discharged.
    8. Insane persons—when County Court has jurisdiction of subject-matter of proceedings to remove conservator. Where a resident of another county files her petition in the court of the county which appointed a conservator for her estate while she was insane, to remove such conservator the County Court of the latter county acquires jurisdiction of the subject-matter.
    9. Appeal and error, § 1408

      —when verdict not set aside as unsupported by evidence. A verdict will not he set aside on appeal as unsupported by the evidence where there is some evidence to support it.
    Appeal from the Circuit Court of Wayne county; the Hon. Julius C. Kern, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    J. B. Harris and W. T. Bonham, for appellant.
    Creighton & Thomas, for appellee.

      See Illinois Notes Digest, 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. Justice McBride

delivered the opinion of the court.

This was a proceeding instituted by the appellant in the County Court of Wayne county to require a settlement of the accounts of appellee as conservator, and to order that he be discharged as such. Judgment was rendered against appellant in the County Court and she prosecuted an appeal to the Circuit Court of said county, where a trial was had that resulted in a judgment against appellant, to reverse which she prosecutes this appeal.

It appears from the record in this case that appellant was a resident of Wayne county, Illinois, and that early in the year of 1913 she became sick and sorely afflicted and was taken to the Egyptian Hospital at Mt. Vernon, Illinois, about February 7th for treatment, and while undergoing treatment her physical and mental condition was such that she became deranged, and on the 17th of February, 1913, a statement of lunacy was filed in the County Court of Jefferson county, a medical commission was appointed as provided by statute and an examination made by such commission and a certificate filed that she was of unsound mind and recommended that she be committed to the Anna State Hospital. Thereupon the County Court of Jefferson county found her to be insane and ordered that she be committed to the Anna State Hospital for the insane. The appellant was at that time the owner of property •estimated at over $6,000, and the appellee filed a petition in the County Court of Wayne county, together with a transcript of the order of court finding the appellant insane, and asked the County Court of Wayne county to appoint a conservator to take charge of appellant’s property, and on March 11, 1913, it was ordered and adjudged by said court that the appellee be appointed conservator for appellant, and he was required to give bond in the amount of $6,000, which was given and approved by the court and letters of conservatorship issued, and appellee has from that time forward acted as the conservator of appellant.

It further appears from the record that the appellant remained in said insane hospital until the 11th day of September, 1914, at which date one J. B. Harris, attorney for appellant, directed to William 1ST. Butler, judge of the Circuit Court of the First Circuit, a petition for a writ of habeas corpus. The petition was granted and made returnable on September 12th, at which time appellant was taken before Judge Butler and upon a hearing then had she was adjudged sane and an order entered to that effect. Whereupon appellant presented a copy of said judgment of the Circuit Judge to the County Court of Jefferson county, where the inquest was had, and procured the said judgment of insanity to be rescinded and set aside. On the 19th day of September, 1914, the appellant filed her petition in the County Court of Wayne county, accompanied by a certified copy of the order of court of Jefferson county, rescinding the judgment of insanity entered in the County Court of Jefferson county. Said petition also alleged that the appellant had been declared insane by the County Court of Jefferson county, that the County Court of Wayne county had appointed appellee conservator; that Judge Butler had adjudged appellant to be sane; that the County Court of Jefferson county had set aside the order heretofore entered declaring her insane, and copies of such judgments and proceedings were made Exhibits and attached to the said petition. Said petition asked that an order might be entered herein directing, “Her conservator William E. Moore, commanding the said William E. Moore that the file in this honorable court within ten days from this date a full, complete, and verified report of his acts and doings as conservator of your petitioner, from the time of Ms appointment to the filing of said report; that upon the approval of said report by tMs honorable court, an order be entered of record herein discharging the said William E. Moore as such conservator, and restoring your petitioner to her rights as a citizen, and directing that the said William E. Moore immediately deliver to your petitioner, or to some one thereafter authorized by her, all the property of your petitioner in Ms possession, custody or control.”

To this petition the appellee filed an answer averring that the said Mary E. Moats was not a fit person to have the care, custody and control of her property, for the reason that she is a person who spends and wastes her estate, and is a spendthrift, and that if such property were turned over to her she would waste the same and expose herself to want and suffering. Also averring that J. B. Harris, attorney for petitioner, had obtained a judgment note from appellant for $1,000, and that the said J. B. Harris had since that time obtained a judgment upon said note against her for $1,100, including an attorney’s fee of $100. And also avers- that the appellant was not a bona fide resident of Madison county but that she was a resident of Wayne county, and that she had relatives and property in Wayne county, and asks that he be retained as her conservator or that some other suitable person be appointed by the court as her conservator.

The cause was tried by a jury upon the petition and answer as above set forth, and the jury returned a verdict for the appellee and against the appellant, upon which judgment was rendered by the Circuit Court of Wayne county.

Appellant seeks to reverse this order of court: First, because the appellant was never legally declared insane and that no basis ever existed for the appointment of a conservator.

It is claimed by counsel for appellant that at the time she was adjudged insane that no notice was served upon her and that she was not present at the time of the adjudication. While the County Court of Jefferson county was a court of limited jurisdiction, it was not a court of inferior jurisdiction, and was invested by the Legislature with jurisdiction in this class of cases, and as liberal intendments will be made in favor of its jurisdiction in this class of cases as will be extended to proceedings in the Circuit Court. Fecht v. Freeman, 251 Ill. 84.

With reference to proceedings in the Circuit Court, our Supreme Court- has said: ‘ ‘ The decree contains no recital of .notice to the defendants, either by service of process or otherwise; but the City Court of East St. Louis is a court of general jurisdiction, and from the fact that it rendered the decree the presumption arises that it had jurisdiction both as to the subject-matter and the parties to do so. It is a rule of uniform application in relation to superior courts or courts of general jurisdiction, that nothing is to be presumed to be out of their jurisdiction but that which specially appears to be so. Where the record of a judgment or decree is relied on in a collateral proceeding, jurisdiction must be presumed in favor of a court of general jurisdiction, although it is not alleged and does not appear in the record.” Horn v. Metzger, 234 Ill. 240. We are of the opinion that it must be conclusively presumed that the County Court being one of general jurisdiction in this class of cases must be presumed to have had jurisdiction both of the person and the subject-matter.

Counsel for appellant introduced the clerk of the County Court of Jefferson county who testified that he did not issue any notice and did not know of any notices having been served. The notice provided for by statute is not required if the person alleged to be insane shall be brought before the court, and the notice to be given is such “As the court shall direct.” The testimony of a witness cannot, in our judgment, be received to contradict a record, and especially so in this class of cases, as the appellant may have been brought before the court, and certainly was before the court and commission when she was examined. It would be unsafe to allow proceedings of this character to be set aside upon the bare recollections of a witness, and more especially so when the witness could not be in a position to know all that transpired. A record of this character imports verity and cannot be impeached by parol testimony. Bishop v. Welch, 149 Ill. App. 491.

It further appears from this record that since the appellant has been adjudged to be sane she has presented to the County Court of Wayne county her petition averring the existence of the order of the court declaring her insane, the order of the court appointing appellee as conservator, and asking the court to take jurisdiction of the subject-matter and compel such conservator to render an account, and asks that he be discharged as such conservator. We believe that after she has represented that such judgment existed and asked this court to take jurisdiction of the subject-matter and to further pass upon her rights between her and the appellee, that any question of the jurisdiction of her person in these matters is waived. Bishop v. Welch, supra; Quartier v. Dowiat, 219 Ill. 326. We are of the opinion that the court had jurisdiction of the person and subject-matter and the judgments and orders entered by it in declaring appellant insane and appointing the conservator, and that the point is not well taken.

The second point urged for reversal is that the County Court of Wayne county had no power after the hearing upon the habeas corpus proceeding, except to require a final report from the conservator and to remove him. By section 25, eh. 85 of Hurd’s Revised Statutes (J. & A. jf 7270), it is provided that when a patient “Has been discharged cured, upon receipt of such notice signed by the superintendent, the judge shall enter an order restoring the patient in question to all his rights as a citizen, and, if a conservator of his estate shall have been appointed, the said conservator shall be removed. ’ ’ But the provision of the statute with reference to the discharging of an insane person by a writ of habeas corpus is not so broad. Section 24 (J. & A. ft 7269), with reference to hearings on habeas corpus, says: “If .said person shall be adjudged sane, on presentation of a certified copy of said judgment to the County Court where the inquest was had, such court shall rescind and set aside the judgment of insanity.” It makes no provision with reference to the conservator, as the former section does; so that nothing can be done under that section of the statute with reference to the conservator when discharged by the court on a writ of habeas corpus, but by section 12 of said chapter (J. & A. ft 7257) it is said: “And if such alleged lunatic shall be adjudged insane, or if it shall appear to the court that any person has been adjudged insane by the court without application for a conservator having been made, and that such lunatic is possessed of any estate, real, personal or mixed, and is still insane, in either case it shall be lawful for the court, upon petition filed for that purpose, to make an appointment of a conservator, upon the same judgment, without further proceedings, and exercise in respect thereto all the power contained in an act entitled, ‘An Act to revise the law in relation to lunatics, idiots, drunkards and spendthrifts,’ approved March 26, 1874, in force July 1, 1874, and all amendments thereto. And such conservator shall perform the duties and incur the liability imposed upon such act, upon conservators appointed thereunder.” It will be remembered that under the proceedings in this case that the conservator was not appointed at the time the appellant was adjudged to be insane but afterwards and upon that finding. We are of the opinion that under section 37 of chapter 86 (J. & A. U 7321), which provides that where a conservator has been appointed thereunder, “Such person may apply to the County Court of the county in which such conservator was appointed, to have such conservator removed, and the care and control of his property, or so much thereof as shall remain, restored to him.” Section 39 (J. & A. jf 7323) provides: “It shall be the duty of the court to which any such application as provided in the foregoing section is made, on proof that such conservator has been duly notified of such application, to cause a jury to be summoned to try the question whether such applicant is a fit person to have the care, custody and control of his or her property, and if such jury return in their verdict that such person is a fit person to have the control of such property as aforesaid, then the court shall enter an order fully restoring such person to all rights and privileges enjoyed before such conservator was appointed.” So that it seems to us that when the question was presented by the petition of appellant asking that the conservator be removed, that the court had the power and it was its duty to summon a jury to determine whether or not she was a fit person to have the care of her property. And this is what the court did. We are not able to say that the court committed any error in so doing. Under the same objection counsel for appellant have criticised the modification of appellant’s instruction No. 2. The instruction, after setting forth the proceedings of habeas corpus and the finding of the plaintiff to be sane, and that the judgment of insanity was rescinded, then proceeds to instruct the jury that in contemplation of law she was sane and was immediately entitled to all her rights and privileges that she had been entitled to before such adjudication of insanity. The court modified this instruction by saying: “Unless other statutory causes are presented and proven by the evidence, showing that the conservator appointed by petitioner ought not to be removed.” The criticism upon this modification is that the court failed to state what the statutory causes were that were referred to. It is true that the court did not in terms state the statutory causes but it did in other instructions, in substance, say that if the appellant was a spendthrift and liable to waste, etc., that then the conservator could not be discharged. We think the jury were not 'misled as to what causes were referred to; besides the instruction as presented was not good as it informed the jury that she was entitled to all her rights and privileges upon the adjudication made by the County Court of Jefferson county setting aside its former adjudication, and we have above seen this is not all that was required to be done.

. The third objection is that appellant was a resident of Madison county at the time of this hearing and that the County Court of Wayne county never acquired jurisdiction of the subject-matter because of her residence in Madison county. There was a sharp conflict in the evidence as to whether or not appellant was a bona fide resident of Madison county, but the conservator was appointed in Wayne county, and the statute under which appellant files his petition provides that when a person for whom a conservator has been appointed has been restored and shall desire the care and management of their estate, “Such person may apply to the County Court of the county in which such conservator was appointed to have such conservator removed.” This is section 37, ch. 86; and section 39 then makes it the duty of the court to impanel a jury to try the question as to whether or not such applicant is a fit person to have the care and custody. We are of the opinion that when the petition was filed by appellant in the County Court of Wayne county' that such court then had jurisdiction and power to determine whether or not she was a fit person to manage her estate.

It is next objected that the court erred in the admissibility of testimony and that the testimony as to her ability to care for and manage her estate was not sufficient to warrant a verdict. There were a gre'at many witnesses testified as to the ability and want of ability .of' the appellant to manage and care for her estate, but this was purely a question of fact to be determined by the jury; and as there was evidence offered by appellant which tended to show her inability to care for and manage her estate, we do not feel willing to disturb the yerdiet upon that account. It has been said by our Supreme Court: “As there is some evidence in this record which fairly tends to support appellee’s contention, this court cannot disturb that finding.” Supreme Lodge Order of Mutual Protection v. Meister, 204 Ill. 527.

It may be true that the ruling of the court on the questions of evidence presented to it upon the trial may not have been accurate in every respect, but we have not seen nor has our attention been called to any reversible error that was committed by the court in the admissibility of evidence. “While it may be true that the ruling of the court on questions of evidence may not have been technically accurate in every instance, yet we find no such departure from the established rules of evidence as would authorize a reversal of the judgment.” Snyder v. Snyder, 142 Ill. 60.

We cannot say that the verdict of the jury in this case was manifestly against the weight of the evidence, and unless we can so say we have no right under repeated rulings of this and the Supreme Court to disturb the finding of the jury, and we- are not disposed to disturb its finding in this case.

We are of the opinion that no reversible error was committed by the court in the proceedings herein and the judgment of the lower court is affirmed.

Affirmed.


author: Mr. Justice Boggs

text:
    Robert L. Thomas and Lease Ruddick, Appellants, v. Sherman Dodge et al., Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed May 4, 1916.
    Statement of the Case.
    This is an appeal from a decree rendered by the Circuit Court of Marion county, Illinois. The appeal was originally taken to the Supreme Court on the theory that a freehold interest in real estate was involved, but that court at its February term, 1916, held that no freehold was involved and certified the same to this court. Dodge v. Thomas, 272 Ill. 80.
    A decree had been rendered by the Circuit Court of Marion county in the above entitled cause, and said decree was appealed from to the Supreme Court, and on the hearing the decree of the Circuit Court was reversed and remanded with direction to the Circuit Court to dismiss the bill filed in said cause as to the property known as the hotel property for want of equity. Dodge v. Thomas, 266 Ill. 76. "When the cause was reinstated in the Circuit Court the chancellor was of the opinion that inasmuch as the Supreme Court had made no mention of the order dismissing the cross-bill, that all that he had authority to do was to dismiss the original bill as to the property known as the hotel property, and that he had no authority to proceed with said cause under the cross-bill.
    Kagy & Vandervort, for appellants.
    Charles H. Holt, for appellees.

      Abstract of the Decision.
    Judgment, § 439

      —when judgment dismissing bill without reference to cross-bill not res judicata as to rights under cross-bill. Where a decree of a Circuit Court granting relief on a bill to declare .a resulting trust in certain real estate and dismissing for want of equity a cross-bill by claimants of an interest in the property to establish such interest is reversed and remanded by the Supreme Court with directions to dismiss the original bill but no mention is made of the cross-bill, the entire decree of the Circuit Court is reversed by the judgment of the Supreme Court and such decree is not res judicata as to the rights of the cross-complainants.

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

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Illinois Central Railroad Company, Appellant, v. N. S. McDaniel, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Jasper county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed May 25, 1916.
    Statement of the Case.
    Action of forcible entry and detainer by Illinois Central Railroad Company, plaintiff, against N. S. McDaniel, defendant, to recover a plot of ground 16x 24 feet on which a coal shed was located. From judgment for defendant, plaintiff appeals.
    It was contended by plaintiff that its way lands in Rose Hill on the west side of the track, which runs north and south, consisted of a strip of land 90 feet wide and 1,000 feet long, beginning at the northeast corner of the northwest quarter of the southeast quarter of section 30, township 8 north, range 10 east, and extending south. The coal shed in question was 758 5/10 feet south of the north end of said strip of land and 33% feet west of the center of its track.
    The north 758 5/10 feet of said premises claimed by plaintiff as its way lands on the west of said track were located in the Village of Bose Hill. The remainder of said strip lay south of the original Town of Bose Hill. Defendant did not question the claim of plaintiff to that part of said strip that lay in said Village of Bose Hill, but claimed that the way lands of said plaintiff south of said original Town of Bose Hill were only 33% feet in width, and that the coal shed in question was not on the right of way of-plaintiff. That part of the strip claimed by plaintiff as its way land which lay south of Bose Hill was not inclosed by a fence, but plaintiff contended that it, and those through whom it claimed, had been in possession of said premises for more than twenty-five years.
    Sometime prior to the institution of these proceedings, defendant’s coal shed was located somewhat east and north of its present location, and as then located was partly on said strip of 33% feet adjoining the main track of plaintiff’s right of way, and which defendant conceded was a part of plaintiff’s lands.
    Plaintiff insisted on defendant paying rent on said ground, the amount demanded being $10. Defendant testified that he stated to the agent of plaintiff that a part only of said shed was on its right of way, and that he was therefore willing to pay but $5. Plaintiff accepted the $5 in settlement therefor. Thereafter defendant moved his said shed west and south so that no part of it was on said strip of 33% feet immediately adjoining the main track of said railroad on the west and south of said original Town of Bose Hill.
    The evidence on this controverted question as to whether or not plaintiff was in possession of the strip of ground on which defendant removed his shed was sharply conflicting.

      Abstract of the Decision.
    1. Forcible entry and detainer, § 86

      —when evidence sufficient to sustain finding that railroad company not in possession of land. In an action of forcible entry and detainer by a railroad company to recover possession of a plot of land on which a coal shed was located, where the evidence was conflicting, it was held sufficient to sustain a finding that plaintiff was in possession of the strip of land on which the shed was located.
    2. Forcible entry and- detainer, § 77*—when deeds admissible to show that occupant of land did not talce possession without title. In an action of forcible entry and detainer by a railroad company to recover possession of vacant and unoccupied lands, deeds of such land to defendant are admissible to show that defendant had not taken possession without title.
    3. Forcible entry and detainer, § 90*—when instruction properly modified. An instruction in an action of forcible entry and detainer that “if the jury believe from a preponderance of the evidence that the defendant entered wrongfully and without lawful right and then kept the plaintiff from regaining possession, it is sufficient to sustain this action,” held properly modified by adding the words “or title” after the words “lawful right.”
    4. Instructions, § 126*—when abstract instruction properly refused. An instruction that is abstract in form and argumentative is properly refused.
    5. Instructions, § 131*—when requested instruction omitting essential element properly refused. A requested instruction omitting an essential element of the case is properly refused.
    6. Instructions, § 19*—when requested argumentative instruction properly refused. A requested instruction that is argumentative and misleading is properly refused.
    7. Instructions, § 137*—when instruction presenting theory of case proper. A party is entitled to an instruction presenting his theory of the case, if it is supported by evidence.
    George W. Fithian, for appellant; John G. Brennan, of counsel.
    Emery Andrews and Raymond G. Real, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Presiding Justice Gridley

text:
    Arthur S. Merigold, Appellee, v. Twentieth Century Theater & Amusement Company, Appellant.
    Gen. No. 21,290.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.

      Certiorari denied by the Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 28, 1916.
    Rehearing denied May 11, 1916.
    Statement of the Case.
    Action of the first class in the Municipal Court of Chicago by Arthur S. Merigold, plaintiff, against Sol H. Goldberg and the Twentieth Century Theater & Amusement Company, a corporation, defendants, to recover commissions alleged to be due him as a real estate broker for the sale of premises. Plaintiff claimed the sum of $2,125, being two and one-half per cent, of $85,000, the sale price of the premises. The defendants entered a joint appearance, and, by an agent, filed an affidavit of merits in which it was stated, in substance, that neither of them employed plaintiff to sell the premises or agreed to pay him any sum for making such sale; that they were not jointly liable to plaintiff; that plaintiff was not the procuring cause of the sale, in that the premises were sold for the defendant company by a broker named Kipper, to whom it paid an agreed commission for said sale. The cause was tried before the court without a jury. After plaintiff’s evidence in chief had been heard, the cause was dismissed as to the defendant Sol II. Goldberg, but the motion of the defendant company for a finding in its favor was denied. At the conclusion of all the evidence the court found the issues ag’ainst the defendant company and assessed plaintiff’s damages at $2,125, upon which finding judgment for $2,125 against the defendant company was entered. From this judgment defendant company appeals.
    Abstract of the Decision.
    1. Corporations, § 264

      —when evidence sufficient to show power of officers to hind company. In an action against a corporation to recover commissions on the sale of real estate, where the evidence shows that plaintiff acted under an agreement with the president of defendant and its secretary, who with two others constituted the directors and stockholders, and that the other two knew that plaintiff was acting as broker in the matter and made no objection and that the contract of sale was ratified in writing by all of the directors and stockholders, it was held that the officers had authority to bind defendant by employing plaintiff, even though there was no resolution of the board of directors authorizing the officers to do so.
    2. Brokers, § 8*—when evidence sufficient to show employment of hrolcer and agreement for commissions. In an action by a broker to recover commissions, evidence examined and held to show that plaintiff was employed by defendant to act as broker on its behalf to bring about a sale of the premises at a specified price, and that he was to receive the customary commission for his services.

      Blum & Blum, for appellant.
    John H. Coulter and Edgar L'. Masters, 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.

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

3. Brokers, § 90 —when evidence insufficient to show termination of employment. In an action by a broker for commissions, evidence examined and held to show that plaintiff’s employment was not terminated nor abandoned by him.

4. Brokers, § 27*—when right to commission not affected. In an action by a broker for commissions where the evidence shows that plaintiff first presented to defendant a purchaser who offered and was able to pay the price fixed and who subsequently bought the premises for that sum, his right to his commission is not affected whether the purchaser acted for himself in purchasing or as agent of a company of which he was the president and controlling stockholder.

5. Brokers, § 37*—when evidence sufficient to show procuring cause of sale. In an action by a broker for commissions, evidence examined and held to show that he and not another was the procuring cause of the sale although he was not present at the execution of the contract, and though the amount of the monthly deferred payments was greater than he had offered.

6. Brokers, § 91*—when evidence insufficient to show fraud. In an action by a broker for commissions on the sale of realty, evidence examined as to agreement of plaintiff to divide commissions with one of defendant’s officers and held not to show fraud.


text:
    Hiram D. Wagner et al., Appellants, v. H. H. Evans et al., Appellees.
    Gen. No. 21,311.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G-. Wotdes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 28, 1916.
    Statement of the Case.
    Hiram D. Wagner and seventy-seven other complainants, former bondholders of the Interstate Independent Telephone and Telegraph Company, a New Jersey corporation, filed a bill in the Circuit Court of Cook county against H. H. Evans, B. E. Sunny and the following corporations: Chicago Telephone Company, Central Union Telephone Company, American Telephone and Telegraph Company, and the First Trust and Savings Bank of Chicago, defendants. The bill alleged inter alia that complainants had been the owners of 778 bonds of the Interstate Company of the par value of $778,000, and that they held stock of the Interstate Company of the par value of $778,000, which stock had been given them as purchasers of said bonds “as a bonus”; that prior to the month of June, 1910, the American Telephone and Telegraph Company owned a controlling interest in the capital stock of the Chicago Telephone Company, carrying on a telephone business in Chicago and its suburbs, and of the Central Union Telephone Company, engaged in the telephone business in Illinois outside of Chicago, and that said corporations are known as “Bell” companies; that at and prior to June, 1910, the Interstate Company was doing business in certain named cities in Illinois as a competitor of said Bell companies ; that the defendant H. H. Evans was president and a member of the board of directors of the Interstate Company from its organization until some time in September, 1910, and that the defendant B. E. Sunny was an officer and director in said Bell companies; that prior to June, 1910, the Interstate Company’s business had been steadily increasing and that it had always promptly paid the interest on its bonds and promptly met all of its obligations; that during the months of March, April and May, 1910, said Bell companies, acting through Sunny, and Sunny individually, “entered into a conspiracy” with Evans to remove the Interstate Company as a competitor and rival of said Bell companies, and that Evans, “in violation of his trust and obligations” as an officer and director of the Interstate Company “fradulently and unlawfully” agreed to aid and assist Sunny in securing a controlling interest in the Interstate Company and in “wrecking” its business; that they agreed among themselves to “endeavor to depreciate the market price” of the stock and bonds of the Interstate Company so that the same could be procured at the lowest possible price, that Evans should send out letters and circulars “calculated and adapted to depreciate the market value of said bonds,” that when the value of the bonds had become sufficiently depreciated the Bell companies would purchase a majority of them, with the bonus stock belonging thereto, at sixty-six and two-thirds per cent, of their face value, and that upon the consummation of said purchase the Bell companies would pay Evans the difference between sixty-six and two-thirds per cent, of the par value of said bonds and whatever price was paid to the holders thereof; that in pursuance of the conspiracy Evans caused to be sent out to complainants and other holders of said bonds such letters and circulars, and that as a result “certain” complainants and “certain” other bondholders consulted with Evans, and that he “fraudulently” expressed the opinion “to such of the bondholders as so advised with him” that any holder who could sell his bonds for sixty per cent, of the par value thereof was fortunate, and “falsely and fraudulently represented” that he was willing to sell all such bonds which he held .at said price, and that to “divers” complainants and other bondholders he made “false statements” as to the financial and physical condition of said Interstate Company; that the result of Evans ’ actions was to cause a “loss of confidence” on the part of complainants and other bondholders as to the value of said bonds and as to the financial soundness of the Interstate Company, and to depreciate the market price of said bonds; that complainants (except Bailey and Stromberg), fearing a further depreciation, agreed to sell “and did sell” their bonds (together with the bonus stock received therewith) for sixty per cent, of their par value; that complainant Bailey sold his bonds of the par value of $192,000 for $101,000, and complainant Stromberg sold 56 of his bonds for forty-five per cent, of their par value and 44 of his bonds for forty-four and one-half per cent, of their par value; that in order to secure these prices a “majority of complainants” were obliged to and did deliver with their bonds stock' of the Interstate Company of equal par value, and that complainants delivered said bonds and stock to the defendant First Trust and Savings Bank of Chicago, which had been designated as the place where the same should be deposited, and received payment for the “bonds” at the rates above mentioned; that said bank received the funds to make said payments from said Bell companies or from said Sunny, and said bonds, with the bonus stock attached, were delivered by said bank to said Bell companies or Sunny, acting in their behalf; that said bank should be required to discover the source from which it received said funds, and furnish all the details of said transactions; that complainants, at the times of said several deliveries of said bonds and stock, did not know and had no means of ascertaining who was the purchaser of the same, but believed that the several prices offered were the prices which said purchaser was paying therefor; that they did not then know of said “conspiracy” or of the “fraudulent and unlawful profit” resulting to said Evans as his “reward” for the carrying out of the said conspiracy; that, after the payment to complainants and 1 ‘ such other bondholders as had deposited their bonds,” there remained in the hands of said bank over $90,000, which had been there deposited by said purchaser and “which fund in equity and good conscience belonged to and was the property of complainants and other of said bondholders”; that said fund was “wrongfully and in fraud of the rights” of complainants paid to Evans or to Sunny as their reward for carrying out said conspiracy; that said bonds with the bonus stock attached, so deposited with .said bank, amounted to a majority of the outstanding bonds and stock of the Interstate Company, and that said bank refused to accept or purchase any more of said bonds with said bonus stock attached; that “all of the above acts” on the part of Evans, Sunny and the Bell companies were done in pursuance of a “false and fraudulent purpose, design and conspiracy” to secure control of the Interstate Company, to wreck and destroy its properties and business, to “cheat and defraud” complainants out of a large part of the real market value of said bonds, towit, the difference between sixty-six and two-thirds per cent, of the par value of same and the amount actually received by complainants therefor, and to forever destroy said Interstate Company as a competitor of said Bell companies; that all of the defendants had notice that Evans, as president and director of the Interstate Company, was a “trustee” of the property and assets of said company for the benefit of the owners of said bonds; that the price paid fÓr said bonds was less than the reasonable market value thereof prior to the time of said several acts done by Evans, that complainants and other .of the holders thereof were “induced” to accept a price below said sixty-six and two-thirds per cent, of the par value thereof solely by reason of the “false and fraudulent acts and representations” of said Evans and that they were “wholly ignorant” of said conspiracy; that “said agreement” made by Evans with Sunny of the Bell companies was in violation of his obligations and duties as an officer and director of the Interstate Company and of the “trust relation” which he bore to complainants as “creditors” of said company, and that said fund of $90,000 ought in equity and good conscience to be decreed “a trust fund” in the hands of Evans, and such other defendants as participated in the distribution thereof, and be held for the benefit of complainants and such other bondholders as may be entitled thereto; that complainants did not know until after said sales of the bonds that said Sunny and the Bell companies were interested in the transactions; and that none of complainants was in any manner a party to said “unlawful conspiracy and combination,” and had no knowledge thereof until after said delivery of said bonds by 'them as aforesaid.
    The bill prayed for a discovery as to the “transactions, contracts and agreements” involved in the purchase of the bonds, what moneys were paid therefor, and by whom and where; asked for the production of all writings, checks and receipts relating thereto; that said bank be required to disclose the source from which it received said fund with which payment for said bonds was made, and to whom was paid the balance of the fund remaining after the payments to complainants and others for said bonds; that Evans and Sunny account for the amount received on account of the purchase price of the bonds from the other defend-ants, and that they, and such other defendants as participated in the fund, be Required to pay to complainants, and such others similarly situated as may join in this bill, the proportionate share due each of said fund, and interest on such shares, and that Evans and Sunny be decreed to have held such sums as trustees for complainants and such others, and be compelled to make distribution, etc.
    Each of the defendants severally filed a general and special demurrer to the bill, and on November 4, 1914, the court entered an order sustaining said demurrers, and each of them, and giving leave to complainants to file an amended bill within ten days. The court held as grounds for sustaining said demurrers: (1) That the allegations of the bill as to a conspiracy between the defendants, or certain of them, are too uncertain, indefinite and insufficient to support any decree; (2) that the allegations of fraud and deceit are too general and too indefinite to constitute a ground for equitable jurisdiction; (3) that the bill is multifarious; (4) that the several complainants, if they have any cause of action at all, have an adequate and appropriate remedy at law; (5) that complainants cannot invoke the aid of a court of equity on the ground of a multiplicity of suits, because it appears from the bill that if complainants have any cause of action each will be afforded an entire adequate remedy by means of a single action at law; and (6) that defendant Evans is not shown by said bill to have sustained such fiduciary relations with the several complainants as authorizes them to maintain a suit in equity on the ground that a trust is involved. On November 17, 1914, the court entered a final order dismissing the bill as to all defendants for want of equity, in which order it is recited that complainants had not filed an amended bill within the time limited and had elected to stand by their original bill. From such final order this appeal is prosecuted.
    Gideon S. Thompson, for appellant?.
    Hopkins & Hopkins, Holt, Cutting & Sidley, David F. Hall, W. B. Mann, E. E. Brown and J. N. Ott, and Tolman, Redpield & Sexton, for appellees.
    Abstract of the Decision.
    1. Equity, § 148

      —when MU properly dismissed. Bill for discovery and accounting held properly dismissed for want of equity and because the allegations of fraud therein were too general, indefinite and insufficient and the existence of any trust relation between complainants and defendant set up in the bill was not sufficiently disclosed therein.
    2. Equity, § 133*—when indefiniteness ground for dismissal of MU. A bill in equity which sets up conspiracy, fraud and deceit will be dismissed where the allegations in regard thereto are general, indefinite and unsufficient to warrant the granting of the relief sought.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.