text:
    Belle Rowden et al., Appellees, v. Travelers Protective Association of America, Appellant.
    1. Evidence, § 410

      —when opinion evidence of physicians admissible. In an action upon an accident insurance policy, held that surgeons who had operated on the deceased were properly allowed to give their opinion concerning the age of a hernia from which the deceased suffered, after detailing facts disclosed by the operation.
    2. Evidence, § 423*—when attending physicians may testify as to cause of death of patient. In an action on an insurance policy, held that physicians who had attended the deceased were, after they had detailed the facts and changes in his appearance just prior to his death, properly allowed to testify concerning the cause of his death.
    3. Appeal and error, § 1498*—when exclusion of evidence harmless error. Where a certain question was asked and answered, the sustaining of an objection to substantially the same question at another time, held not prejudicial error.

      4. Insurance, § 408

      —what constitutes an accident within policy. Where the insured in an action on an insurance policy was pulling on a limb of a tree which broke and threw him to the ground, causing hernia from which he died, held that the fall was an accident within the meaning of the policy.
    5. Insurance, § 408*—when insurer liable on accident policy for death resulting from hernia. An accident policy insuring against death from bodily injuries resulting from external violent and accidental means, but excepting death from hernia, does not relieve the insured from liability where death results from hernia caused by external violent and accidental means.
    6. Insurance, § 704*—when instruction not prejudicially erroneous. In an action on an accident insurance policy insuring against external and violent accidental means, an instruction defining “accidental means,” held not prejudicial to the defendant.
    7. Instructions, § 159*—construction as a series. An instruction in an action on an accident insurance policy, following closely the language of the defendant’s constitution and by-laws and not directing a verdict, held not erroneous or misleading in view of other instructions, among which was one that told the jury that all instructions were to be considered as a series.
    8. Instructions, § 96*—when instruction on credibility of witness not erroneous. An instruction telling the jury that they were not bound to take the testimony of any witness as absolutely true and that they should not do so if they believed from the evidence that such witness was mistaken in the matters testified to by him or her, or for any reason appearing in the evidence, his or her testimony was untrue or unreliable, held not erroneous.
    9. Appeal and error, § 1241*—when party cannot complain of instruction. A party cannot complain of the giving of an instruction similar to one given at his own request.
    10. Insurance, § 667*—when instruction on liability for accidental death erroneous. In an action on an accident- insurance policy for death alleged to have been caused from a fall sustained by the deceased, resulting from the breaking of a limb on which he was pulling, an instruction that if the insured did what he intended to do and nothing was accidental or unexpected to him except the result, a verdict must be for the defendant, held erroneous.
    11. Insurance, § 686*—when accident as proximate cause of death question for jury. In an action on an accident insurance policy where death was due to embolism following an operation for hernia, alleged to have resulted from a fall, the question whether the accident was the proximate cause of the death, hela for the jury.
    Appeal from the Circuit Court of Fulton county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1915. Certiorari denied hy Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    O. J. Boyer and Robert J. Folonie, for appellant.
    Chiperfield & Chiperfield, for appellees.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in assumpsit begun by Belle Row-den and others, the widow and children of James C. Rowden, deceased, against the Travelers Protective Association of. America, to recover the amount of an accident insurance benefit certificate on the life of James C. Rowden, in which the plaintiffs are named as beneficiaries. The plaintiffs recovered a verdict and judgment for $5,000. The defendant appeals.

The declaration avers that appellant, an insurance corporation, in 1906, issued to James C. Rowden a certificate of membership and insurance, a copy of which is set forth, in haec verba; that the insured at the time of his death was in good standing; that on June 30, 1914, the insured in the prosecution of his work, while endeavoring to pull down a limb of a tree, by said limb suddenly breaking and throwing him violently to the ground, received a certain accidental injury which caused a separation of the tissues of the abdomen and into the opening thereby caused, the omentum was thrust and held, producing a condition that on July 24, 191.4, required an operation to correct the conditions produced by the accidental injury, and as a result of the physical conditions caused by the accident and following said operation, said insured died July 30, 1914, whereby $5,000 became payable under said policy as a death benefit to appellees.

Appellant filed ten pleas, on nine of which issues were joined. The second avers that the injury was not received through external, violent and accidental means. The third and fourth aver, in substance, that the injury and death were caused wholly or in part by bodily infirmity and disease. The fifth avers that the death of the insured resulted from surgical treatment and not from violent or accidental means independently of all other causes. The eighth plea, as amended, avers that in the contract sued upon, it is provided that defendant should not be liable for death caused wholly or -in part by any bodily or mental infirmity or injury caused by hernia, and that the death of the insured was caused wholly or in part by the preexisting disease of hernia. The tenth avers that the contract provides that there shall not be any liability for injuries caused by unnecessary lifting, or voluntary over exertion, and that the injury to Bowden was caused by voluntary overexertion.

The insured was a man over six feet tall, weighing about 240 pounds, who lived in Canton. He was active, strong, robust and in good health prior and up to the time of the accident. His occupation was that of a contractor, and he owned a farm abotit three miles from Cuba, in Pulton county. He was injured about 10:30 in the forenoon while superintending and assisting two men in building a fence on his farm. A limb of a tree interfered with the line of vision in setting the posts. Bowden and one of the men were pulling on the limb to get it out of the line, when it broke and the insured fell backwards, striking with his back and shoulders, a stump or root that projected out of the ground. The fall was severe, knocking the breath out of him and injuring him so that he had to have assistance to get up and to walk to his buggy, Which was a few rods from the place of the accident. He walked to the buggy with his right arm- over the shoulders of one of the men who assisted him and held his left hand over the inguinal region on the left side and suffered great pain while being driven to a farmhouse near by and then to Cuba. At Cuba, Dr. Bay was called to examine him and found his back very badly bruised and some ribs broken: That evening he went home by train and on arriving at his home Dr. Bogers was called to attend him. About the 9th of July, Dr. Standard, a surgeon, was called to examine him. He found a large inguinal hernia on the left side that was irreducible. The evidence of Dr. Bogers, a witness called by appellant, shows that the deceased had had a small nonprogressive hernia, about the size of a small hickory nut, for many years. William C. Bowden, a son of deceased, testified it was the size of a large hazel nut two months before the accident and that the day after the accident it was the size “of a hen’s egg, as large as my four fingers.” Dr. Standard advised an operation. The insured was- taken to a hospital and operated on for the hernia on July 23rd. He appeared to be recovering rapidly until July 30th, when he suddenly died, by reason, as the evidence tends to show, of a pulmonary embolism resulting from the operation.

The surgeon who operated on the deceased testified that there was a large hernia on the left side which could not be replaced in the abdomen; that on opening up the hernia it was found to be an inguinal hernia, containing two sacs of peritoneum protruding through the left inguinal ring, which was enlarged in diameter an inch; that one of the sacs was an old one because it contained a large number of adhesions, the other sac contained a mass of omentum and fat and was of recent origin and had existed probably a month or two, the witness stated he could not state positively how long it had existed but there were no adhesions and it was of quite recent origin; the two sacs were in no way connected except that they both connected with the peritoneal cavity; that the omentum has a vascular circulation, and the shutting off of the circulation in the omentum in the sac would ultimately cause septic peritonitis and death, and that an operation was the only way there was any hope of saving the patient’s life.

Appellant contends that the court erred in overruling objections to the testimony of Dr. Standard and in refusing to exclude his evidence concerning how long the sac described as the new one had been formed, on the ground that it was a question of fact and not a matter for expert testimony.

There is no objection to the- form of the question, the sole objection is that it is not a subject for expert proof. The rule is, that it is proper to permit proof of the nature and extent of a personal injury, its probable duration and the like by the testimony of the attending physician. City of Chicago v. Didier, 227 Ill. 571; Fuhry v. Chicago City Ry. Co., 239 Ill. 548; Village of Chatsworth v. Rowe, 166 Ill. 114.

The operating surgeons were properly permitted to give their opinions concerning the age of the hernia, after having detailed the facts disclosed by the operation for the reason such matters are not within the knowledge of ordinary men.

It is also contended that it was not proper to permit the attending physicians to testify concerning what caused the death of the insured after they had detailed the facts and changes in his appearance just prior thereto: that he died of pulmonary embolism caused by a clot, coming from the site of the operation, getting into the circulation and plugging an artery in the lungs. There was no error in the rulings of the court.

It is also insisted that error was committed in sustaining an objection to a hypothetical question put to Dr. Eodgers, an expert witness for appellant, assuming that there was an existing hernia and certain facts the evidence tended to prove, and then inquiring whether the existing hernia in the opinion of the witness would contribute to the formation of a new sac. While an objection was sustained to one question on page 271 of the record, the next question asked and answered was substantially the same, and questions very similar found on pages 261, 2, 3 and 9 of the record were answered by the witness. Since the question was asked and answered both before and after the ruling complained of, there was no prejudicial error in the ruling.

It is argued on behalf of appellant that even if the fall injured the insured and caused the hernia which necessitated the operation, as the result of which he died, that the judgment cannot be sustained. It is said “it is not sufficient that death was an accidental result of the external cause but the cause itself must have been accidental. Bowden did exactly what he intended to do and nothing was accidental except the result. This furnishes no right of recovery.” In 4 Cooley’s Brief on Ins. 3156, it is said: “An effect which does not ordinarily follow and cannot reasonably be anticipated from the use of such means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by accidental means.” Healey v. Mutual Accident Ass’n, 133 Ill. 556; Travelers’ Ins. Co. v. Ayers, 217 Ill. 390; Fidelity & Casualty Co. v. Morrison, 129 Ill. App. 360. This is the rule if the assured is within the terms of the contract, even though he be negligent, if he be not guilty of misconduct or fraud. While the insured desired tb remove the limb of the tree, it is not pretended that there was any intention on his part of falling and injuring himself. The fall and the injury were clearly accidental.

It is also contended that the injury from the fall is not the sole cause of the death of the insured independently of all other causes. The benefit certificate

is subject to the conditions printed thereon and which are made a part of the certificate. One of the rules thereon is that “no liability shall exist in case of injuries, fatal or otherwise * * * or death or disability when caused by the diseases of * * * hernia, * * * or by * * * death * * * resulting from surgical treatment (operation made necessary by the particular injury * * * and occurring within three calendar months from the date of the accident excepted)It was a question of fact whether the original nonprogressive hernia contributed to the injury that caused the death of the insured. If the original hernia was the cause of the operation, which resulted in the death of the insured, then there would not be any liability, but if the hernia which necessitated the operation was the result solely of the fall, then the exception in the rules does not exempt appellant from liability. The rules of appellant except death from surgical operations occurring within three months of the accidental injury from the exemptions from liability. An accident policy insuring against death from bodily injuries resulting from external accidental means but excepting death from hernia does not relieve the insurer from liability where death results from hernia caused by external violent and accidental means. Travelers’ Ins. Co. v. Murray, 16 Colo. 296; Miner v. Travelers’ Ins. Co., 3 Ohio Dec. 289; Atlanta Accident Ass’n v. Alexander, 104 Ga. 709.

It is insisted that the third instruction given at the request of appellees which defines “ ‘accidental means’ as used in these instructions, ” as: “ An event happening by chance; unexpectedly taking place; not according to the usual course of things and when happening through human agency, an event which under the circumstances is unusual and not expected to the person to whom it happens,” gives a definition of “accident” under the guise of defining “accidental means,” and is erroneous. “Accidental means” have been similarly defined in Standard Life & Accident Ins. Co. v. Schmaltz, 66 Ark. 588, 74 Am. St. Rep. 112; Southard v. Railway Passengers’ Assur. Co., 34 . Conn. 574; Young v. Railway Mail Ass’n, 126 Mo. App. 325; and vol. 1, Words and Phrases 62. The phrase was used by both parties in their instructions. While the meaning of the term might be given in different language, depending on the method of expression of the party defining it, the term is an expression in common use. Its definition was unnecessary and as given was not prejudicial to appellant.

The sixth instruction given for appellees is: “The jury are instructed that death resulting from an operation made necessary as the result of a bodily injury received through external, violent and accidental means, occurring within six calendar months from the date of the accident, is not excepted by the terms of the contract existing between the defendant and the insured, James C. Bowden.” Appellant argues that this instruction is erroneous because it omits the element that the bodily injury in question must result “solely and exclusively” through external, violent and accidental means. The second section of article ten of the constitution and by-laws of appellant, which are a part of the policy, provides:

“That this association shall not be liable in case of disease, death or disability resulting from medical or surgical treatment, (operation made necessary by the particular injury for which claim is made and occurring within six months of date of accident, excepted).”

The instruction follows closely the language of the constitution and by-laws of appellant. The seventh instruction given at the request of appellant required appellees to prove that the insured came to his death as the result of external, violent and accidental means independent of all other causes. The first instruction given the jury told it, that the instructions constituted and should be regarded as a connected series. An instniction in the language of the contract and as part of a series is not erroneous or misleading when it does not direct a verdict if certain facts are proven.

It is said the eighth instruction given for appellees “is bad because it directs the jury to reject the testimony of a witness if they believe his evidence is unreliable.” The instruction tells the jury they are not bound to take the testimony of any witness as absolutely true and they should not do so if they believe from the evidence that such witness is mistaken in the matters testified to by him or her, or for any reason appearing in the evidence, his or her testimony is untrue or unreliable. The tenth instruction given at the request of appellant told the jury “they are not bound to believe any thing to be a fact, because a witness has testified it to be so, provided, the jury believe from all the evidence, that such witness is mistaken, or has knowingly testified falsely, as to such supposed fact or facts. ” We see no error in appellees ’ instruction, and appellant may not complain of the giving of an instruction similar to the one given at its request.

Appellant’s refused instructions one and three, in substance, told the jury that if they believe from the evidence that appellees have failed to establish “that the means employed by James G. Bowden in pulling the limb of the tree were different than he anticipated, ’ ’ then plaintiff cannot recover even if an accident resulted. If the insured did what he intended to do and nothing was accidental or unexpected "to him except the result, then the verdict must be for the defendant. There is no meaning in the expression that the means used by the insured in pulling on the limb were different than he anticipated. The instructions were clearly bad and it was not error to refuse them. All the other refused instructions requested by appellant were included in and fully given in appellant’s given instructions, and it was unnecessary to duplicate legal propositions.

It was a question of fact for the jury whether the accident was the proximate cause of the death of the insured in that the surgical operation from which the embolus arose was necessary and was caused by the accidental injury of the insured. On a careful examination of all the evidence, we cannot say that the verdict and judgment are not sustained by the evidence, and finding no errors of law in the case requiring its reversal, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Ira Wells, Appellee, v. Andrew Graham, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. CoiosTirr D. Myebs, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by Ira Wells, plaintiff, against Andrew Graham, defendant, for breach of warranty for a horse sold by the defendant to the plaintiff. From a judgment for plaintiff, defendant appeals.
    Bracken & Young and W. B. Leach, for appellant.
    Light & Light, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Abstract of the Decision.

1. Sales, § 401 —when evidence sufficient to sustain verdict. Evidence in an action for breach of warranty of a horse, held not to justify the reversal of a judgment for the plaintiff.

2. Sales, § 241*—when doctrine of caveat emptor inapplicable. The doctrine of caveat emptor held not to apply where a vendor of a-horse, knowing that it was permanently diseased, warranted it to be sound and explained to the purchaser thereof that its lameness was due to a cause other than that to which it was really due, and such purchaser, without having any other information in regard to the matter, made the purchase on the strength of such representation.

3. Sales, § 402*—when instruction in action for breach of warranty of horse correct. In an action for a breach of warranty of a horse, an instruction that if the jury “believe from a preponderance of evidence that the horse in question was unsound and it was known to the defendant when he sold the horse to the plaintiff and that the defendant told plaintiff that the horse was sound and the plaintiff purchased the horse without knowledge of the unsoundness and relying,” etc., held a sufficient charge that the representation must have been made at 'the time of the sale in order to justify a recovery.

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


text:
    Gabriel C. Stauffer, Plaintiff in Error, v. State Bank of Mansfield, Defendant in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Piatt county; the Hon. William K. Whiteield, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Motion by Gabriel C. Stauffer, defendant, to set aside a judgment by confession entered against him by the State Bank of Mansfield, plaintiff. To review an order overruling the motion, the defendant prosecutes a writ of error.
    Abstract of the Decision.
    1. Judgment, § 82

      —when motion to set aside judgment by confession properly overruled. Where, in an affidavit filed on a motion to set aside a judgment entered on confession and for leave to plead, no facts were set up showing a defense to the action, held that the motion was properly overruled.
    2. Judgment, § 82*—when affidavit in support of motion to set aside judgment by confession insufficient. Where a judgment had been entered by confession on a promissory note, a motion to set such judgment aside and for leave to plead to the action was held properly overruled, it appearing that the affidavit filed in support of the motion stated merely that a bill in chancery, a copy of which was attached to the affidavit, was filed against the plaintiff and other persons by the defendant, asking for an accounting between them, no mention being made in the bill of the note on which the judgment was entered, nor in the affidavit except that the defendant had not, prior to the filing of the bill, any knowledge that the plaintiff was in possession of such note, since there was no showing that the note was involved in any way in the chancery suit except by inference.
    3. Set-off and becoupment, § 3*—when unnecessary to interpose. There is no statute in this State requiring parties to actions begun in the Circuit Court to plead a set-off or counterclaim, and independent actions may be brought thereon.
    C. C. Le Forges and Elim J. Hawbaker, for plaintiff in error.
    C. H. Firke and Herrick & Herrick, for defendant in error.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    J. B. Kelly, Appellee, v. McCormick-Murray Manufacturing Company, Appellant.
    1. Judgment, § 82

      —when affidavit not in compliance with stipulation for opening of judgment. Where after entry of a judgment by confession it was agreed by stipulation between the parties that the. case should be opened and tried by the court and that the defendant would give the plaintiff notice of all special defenses to be offered, held that an affidavit made before the making of the stipulation was not a compliance therewith.
    2. Corporations, § 175*—when sale of stock to by stockholder deemed to he in good faith. A sale by a stockholder of the stock in a corporation to the corporation, held to have been made in good faith and that the assignee of notes given by the corporation in payment thereof was entitled to recover the face value thereof.
    3. Corporations, § 481*—what is not defense available to in action on note. A corporation cannot, in an action by an assignee of notes given to a stockholder in payment of stock bought by him, defend on the ground that the stockholder fraudulently overvalued property turned into the corporation by him at the time of its organization.
    4. Corporations, § 337*—when have right to buy and sell shares of own stock. A corporation may, if it acts in good faith, buy and sell shares of its own stock.
    5. Appeal and error, § 1035*—when errors not considered on appeal. Errors not assigned or argued will not be considered on appeal.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed April 21, 1916.
    Sterling & Whitmore, for appellant.
    De Mange, Gillespie & De Mange, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

A judgment was on March 13, 1914, entered by confession for $1,037.56 and costs, by J. B. Kelly against the McCormick-Murray Manufacturing Company, a corporation.. The notes were executed by the corporation by W. B. McCormick, its president. One note is for $500 dated December 6, 1912, payable to the order of J. L. Murray & Company; the second is for $100 dated January 5, 1913, payable to J. L. Murray; the third is for $169.37 dated December 13, 1913, payable to the J. L. Murray Company, and the last for $200 dated December 26, 1913, payable to the J. L. Murray Company. All the notes are assigned to the plaintiff. On April 11, 1914, a motion supported by an affidavit made by W. B. McCormick was entered by the defendant to have the judgment opened and for leave to plead. On October 10, 1914, it was stipulated that the motion should be allowed and the case tried by the court without a jury. The stipulation states “that an issue of fact shall be made up without formal pleading * * *; that the defendant will give the plaintiff notice of all special defenses to be relied upon before the trial; * * * and in the event of a final judgment for plaintiff, the present judgment, execution, levy and return shall by mutual consent be amended to conform to the correct amount of indebtedness, * * * and that the present judgment shall stand as security for the final judgment.” An order opening the judgment was made and the case tried at the February term, 1915. Judgment was rendered that the judgment heretofore entered stand in full force and effect as of the date of the rendition of said judgment and that said judgment be closed.

An objection was made to the evidence offered by appellant on the ground that no notice had been given of any special defense, and counsel for appellant insists that the affidavit gave sufficient notice of the defenses relied upon. The affidavit, among other things, states that the affiant executed said notes as president and treasurer of the company and that the company had not authorized him to execute judgment notes, and “that the said corporation received no consideration for said notes.” It then attempts to set np what are claimed to be facts under which the corporation was organized; that J. L. Murray and one Rifenback were the owners of a stock of merchandise, formulas and proprietary rights formerly owned by the Otsego Company, and that they sold the said property to appellant for $19,900 in payment for capital stock of appellant subscribed by them, when the value of the property turned over to the corporation did not exceed $500, and that Murray afterwards turned his stock back to the corporation and received the $500 note sued upon, and other notes which were in part paid by the giving of the other three notes sued upon; that when the property formerly owned by the Otsego Company was turned over to the corporation, Murray was a stockholder and officer of the appellant, and that appellee is a partner of Murray, and had full notice of said transactions and paid no consideration for said notes.

Under the stipulation made October 10, 1914, the appellant agreed to give appellee notice of any special defense. The affidavit made several months before the making of the stipulation is not a performance of the terms of the stipulation regarding notice.

The appellant not having given any notice of any special defense subsequent to the making of the stipulation, all that remained for the court to do was to compute the amount due on the notes to the time of the judgment and enter judgment accordingly.

If it could be held that the affidavit was notice to appellee of any special defenses, the evidence shows that appellant was a corporation organized in the fall of 1911, with 2,500 shares of stock of the par value of $10 each, of which W. B. McCormick subscribed for 870 shares; J. L. Murray, 870; Rifenback, 500; and a few others subscribed for the remainder of the stock in small amounts. The report made to the Secretary of State, sworn to by McCormick and Murray, shows that $5,100 was paid in on the capital stock in cash and $19,900 in property. McCormick, who was the president, treasurer and general manager of the appellant, testified that the property taken in payment of $19,900 of the stock consisted of 275 empty boxes, a typewriter, two or three boxes of soap, a barrel of metal polish, a wooden desk and $125 of Iowa accounts, the entire property being worth not to exceed $375. On June 8, 1913, as president of the corporation, he made a report in writing to B. Gr. Dunn & Company which showed that the corporation had assets amounting to $20,000, which consisted of merchandise $15,000, accounts at “realizable value $5,000” and cash $800, and that its total liabilities were $4,800; this report further stated that appellant carried $7,500 insurance and did an annual business of $40,000. Bernard Smith, a director and the secretary of appellant, testified that in December, 1912, the assets of appellant were between $8,000 and $8,500 and its liabilities $3,800.

The evidence shows that J. L. Murray was a partner • in the firm of J. L. Murray & Company, dealers in automobiles; that J. L. Murray & Company traded a new $1,000 automobile for 200 shares of the stock of appellant; that Bernard Smith had become the owner of 926 shares of the stock of appellant and was a director and the secretary of appellant and assisted McCormick, who was the president and treasurer, in the management of the business; that in December, 1912, McCormick and Smith thought they could buy the capital stock held by J. L. Murray and J. L. Murray & Company, and sell it at a profit, and did buy 400 shares in the name of the corporation and 100 in the name of McCormick. They paid for the stock taken to the corporation by giving two $500 notes and two $400 notes executed by the corporation by McCormick the president. The $500 note sued on is one of the notes made at that time. McCormick paid $400 cash for the Murray stock bought by him. When the notes became due, the $200 note and $167.37 note were given to J. L. Murray & Company for money borrowed by the corporation to pay some of the notes, which had been transferred to other parties. The $100 note was given for money borrowed by appellant from Murray and used in the business after Murray had no interest in the corporation.

McCormick testified that in the fall of 1913, he became the owner of all the outstanding capital stock of the appellant, and apparently held all the stock when some of the notes sued on were made by him as president. In January, 1914, while holding all the outstanding capital stock of the appellant, he sold the entire business of appellant for $4,000 and agreed with the purchaser to pay “all just debts of the company.”

This is a suit at law. nonstockholder or creditor, other than appellee, is a party or has any direct interest in-the case. The corporation and appellee only are interested. The sale of the stock to the corporation appears to have been made in good faith by Murray, and Murray & Company and the corporation, when the corporation from the financial statement made in June thereafter by McCormick, and from the evidence of Smith, appears to have been, solvent., A corporation cannot urge in defense of a suit by a party, who at one time was a stockholder, that the stockholder fraudulently overvalued property turned over to the corporation in payment of a stock subscription; while such fraud would render the transaction voidable as to creditors and other stockholders prejudiced thereby, it is binding upon the corporation and, between the corporation and such stockholder, the stock subscription is fully paid. Parmelee v. Price, 208 Ill. 545; Bouton v. Dement, 123 Ill. 142; Higgins v. Lansingh, 154 Ill. 301; note to 19 L. R. A. (N. S.) 115. A corporation may, if it acts in good faith, buy and sell shares of its own stock. Republic Life Ins. Co. v. Swigert, 135 Ill. 150; First Nat. Bank of Peoria v. Peoria Watch Co., 191 Ill. 128. The officers of appellant thought that they could make some profit for appellant, and the evidence shows that they did sell some of the stock bought from Murray at a profit. We fail to see how appellant can urge in a suit at law the defense of want of consideration or set-off to notes given for the purchase of its own stock, under the circumstances surrounding the giving of the notes as shown in this case.

No assignment of error is made or any argument which questions the amount of the judgment, or the amount of the costs taxed; neither is any argument made concerning any ruling upon propositions of law, hence none of these questions are before us for review. The judgment is affirmed.

Affirmed.


text:
    Peter Armentrout, Appellant, v. Central Trust Company of New York, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Bill for an accounting by Peter Armentrout, complainant, against the Central Trust Company of New York, defendant. From a decree dismissing the bill after a demurrer thereto had been sustained, the complainant appeals.

      Abstract of the Decision.
    1. Account, § 26

      —when hill for accounting insufficient. A demurrer to a bill for an accounting filed by a member of a mutual life insurance association against a trust company, alleging that the defendant received a fund which the plaintiff’s certificate provided should be set aside for the benefit of himself and others similarly situated, and that such association had become bankrupt, and its assets, including the fund in question, by orders of a bankruptcy court had been paid in part settlement of death claims and that no further assets remained, held properly sustained, as was also a demurrer to an amended bill, omitting the allegation as to the bankruptcy, but not alleging that said fund had not been paid over by the defendant to certain other parties in accordance with its agreement with the association, as set forth in the bill, and alleging that certain bonds were not issued to the complainant, as provided by his certificate, since the duty to issue such bonds was that of the association and not of the defendant.
    2. Pleading, § 38*—when inferences not drawn in favor of pleader. Nothing will be inferred in favor of a pleader which has not been alleged in his pleadings.
    William L. Barnum, Jr., and Michael Eckstein, for appellant; George B. Holmes, of counsel.
    W. W. Gurley, George B. Gillespie and Howard M. Carter, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    George Wilson, Defendant in Error, v. R. P. Dennis, Plaintiff in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 1

      —when evidence sufficient to show sale. Evidence in an action in replevin, held to show that the property sought' to be recovered had been sold by the plaintiff to the defendant.
    2. Replevin, § 147*—when instruction on burden of proof erroneous. Where a defendant in an action of replevin averred in his plea that he was the owner of and entitled to the possession of the property sought to be replevied and that the plaintiB was not entitled thereto, held that an instruction that the burden of proof that the defendant was the owner of and entitled to the possession of the property was on him, and unless he proved such fact by a preponderance of the evidence a verdict must be rendered for the plaintiB, was erroneous as the averment as to the ownership in the defendant was mere matter of inducement and the plaintiB was entitled to recover only on the strength of his own title.

      Error to the County Court of Coles county; the Hon. John P. Habbah, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action in replevin by George Wilson, plaintiff, against R. P. Dennis, defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    The defendant claimed that the plaintiff sold a crop of wheat sown by the plaintiff on a farm which he had occupied before the defendant took a lease thereof and moved upon it. Plaintiff claimed that his offer to sell the crop to the defendant had not been accepted by him, and brought an action of replevin to recover it after it had been harvested.
    Charles Wallace and A. C. Anderson, for plaintiff in error.
    T. N. Cofer, for defendant in error.

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

   Mr. Justice Thompson

delivered the opinion of the court.

3. Contracts, § 205*—when question as to what constitutes reasonable time to carry out is for jury. What is a reasonable time to carry out a contract is a question for the jury where the facts are in dispute and no time is fixed, but where there is no dispute over the fact it is a question of law for the court.


text:
    St. Rose of Lima Congregation of Quincy, Illinois, Appellee, v. Estate of Anna E. Hopkins, Deceased. David W. Mumper, Administrator, Appellant.
    Executors and administrators, § 273

      —when Probate Court power to set aside order of allowance of claim after term. Where a claim against an estate was allowed by mistake and in violation of. the terms of a stipulation between the administrator and the claimant, whereby it was agreed that no order should be entered until further hearing, held that the order allowing the claim should have been set aside on the administrator’s petition though filed after the close of the term at which it was made, the administrator not having learned of the entry thereof, prior to that time, since a Probate Court has in such cases powers of a court of equity over its orders.
    Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed April 21, 1916.
    Rehearing denied June 30, 1916.
    Walter H. Bennett, for appellant; Jesse Heylin, of counsel.
    Martindale & Scherer and Hubbard & Groves, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

At the January term of the County Court of Adams county, the St. Rose of Lima Congregation of Quincy, Illinois, presented a claim against the estate of Anna B. Hopkins, deceased, of which David W. Mumper is the administrator with the will annexed. The claim was verified on January 14th, on or after which date it was filed. The claim as presented is:

“Estate of Anna Hopkins, deceased—

To St. Rose of Lima Congregation of Quincy, Ill.

June 14, 1911, To Balance of amount subscribed for-building of St. Rose of Lima Church ............................. $400.00

Nov. 7,1912, To amount of subscription for a marble altar for family of deceased, to be erected in St. Rose of Lima Church,

of Quincy, Ill........................ $2,500.00

Total '..........................$2,900.00”

On April 6, 1914, the County Court made an order allowing the claim in the sum of $2,900; the judgment reciting that the claim had heretofore been set for hearing on April 4th at 4 p. m., and that the claimant and the administrator both appeared in court in person and by their attorney.

On December 22, 1914, David W. Mumper, administrator, etc., Flank Bryson, administrator of the estate of Louise M. Murphy, deceased, of the county of Los Angeles, California, James W. Murphy of Ballybrophy, Ireland, sole heir of Louise M. Murphy, deceased, and John P. Murphy of Los Angeles, assignee and trustee of James W. Murphy, filed in said estate in the County Court, an amended petition verified by the administrator of Anna E. Hopkins, deceased, praying that the judgment of the allowancé of the claim of St. Rose of Lima Congregation for $2,900 be set aside or modified so as to conform to the true finding of the court.

The amended petition sets up that the claim day for said estate was January 5, 1914, and that this claim was not filed until after that date; that on April 3, 1914, the administrator objected to a hearing at that time as he knew nothing about the claim having been filed and had no personal knowledge of the claim and had not had an opportunity to investigate it, but entered into an agreement in the presence of the court that for the convenience of claimant and its witnesses, a partial hearing should be had to determine the amount of the claim but that no order should be entered by the court which should be conclusive of the rights of the estate; that the administrator of the estate relying upon the agreement made at the time of the tentative hearing that the claim should come for final hearing at some future time, took no further steps therein; that neither the administrator nor any person authorized to represent him was present in the County Court either on April 4th or April 6th; that the claim of the St. Eose of Lima Congregation is not a valid claim or a liability against said estate; that the decedent Anna E. Hopkins paid in full and received a receipt in full for her subscription to the building of St. Eose of Lima Church; that the claim for $2,500 is without consideration and was revoked by her death; that the judgment of April 6th was entered without further notice to the estate; and that neither the administrator nor the heirs learned of the entry of the judgment until long after the term had expired. The claimant filed a demurrer to the amended petition assigning special causes.

On March 5, 1915, the County Court sustained the demurrer and dismissed the petition. The estate appealed to the Circuit Court where on a hearing the demurrer was again sustained, and the estate standing by the petition the court rendered judgment that “the appellee go hence without day.” Whereupon the estate prayed and perfected an appeal to this court.

The record in this case is very- imperfect. It does not show when the claim was filed in the County Court. The petition to have the. allowance of the claim set aside and vacated is lacking in many things that should be in it. It does not set up what, if any, interest any of the parties named as petitioners have in the matter or how they are interested in the estate, nor does it state when it came to the knowledge of the administrator that the claim had been allowed, except that it states that it was long after the term of court had closed. The record does not show whether or not the estate was represented by an attorney when the agreement was made on April 3rd, neither does it show when the original petition to have the judgment vacated was filed nor is that petition in the record.

The judgment entered in the Circuit Court is somewhat unusual. The claimant was the appellee in that court where the hearing on the petition to set aside the allowance of the claim was de novo. (Cort v. Massie, 171 Ill. App. 129.) The judgment in the Circuit Court is that “appellee (claimant) go hence without day.” The judgment in the Circuit Court in effect is a judgment refusing to allow the claim against the estate.

While but few facts are set up in the petition, such as are set up must be taken as true. The administrator knew nothing about the claim having been filed and did not know anything about the facts involved, and desired time to investigate the claim. It was agreed that for the convenience of the claimant and its witnesses, its side of the case should be heard and that no order should be entered that should be conclusive on the estate, and that the matter should come on for final hearing at some future time, and that shortly thereafter, in violation of the agreement, judgment was entered Tby “special order” as appears from the indorsement on the claim, and that the estate did not learn of the allowance of the claim until after the term had- closed. The petition sets up that, that part of the claim which is for the balance of Anna E. Hopkins’ subscription to the building of the church was paid in full by Anna E. Hopkins in her lifetime, and that she took and the estate has the receipt from claimant in full.

The main contention of claimant is that the term of the County Court at which the judgment was entered having lapsed, before the motion was made to vacate the judgment, the County Court was powerless to alter or set aside the judgment at a subsequent term; another contention of claimant is that the administrator did not fully understand the effect of the agreement and that no advantage can be taken by him of a mistake of law.

While it is a correct proposition of law as to ordinary judgments of a court of record, that they are conclusive and cannot be vacated after the term has ended, it is not the law with reference to orders and the allowance of claims in the Probate Court in the administration of estates. “A Probate Court acts upon general equitable principles in the settlement of estates, and whenever a court of equity would have jurisdiction on a bill in equity to set aside action taken at a previous term, or in another court, and to disregard the form in which a transaction had been placed, because of fraud or mistake, a Probate Court, on motion at a later term, can set aside its prior proceedings.” Allen v. Hempstead, 154 Ill. App. 91. “The County Court has general and unlimited jurisdiction in matters of administration, exercising such equity powers as are adapted to its organization and mode of proceeding. Such court, in the exercise of its equitable jurisdiction, may, on motion, at a subsequent term, set aside its own order allowing a claim against an estate, if mistake or fraud has intervened.” Schlink v. Maxton, 153 Ill. 447; Sherman v. Whiteside, 190 Ill. 576; Strauss v. Phillips, 189 Ill. 9; Whittemore v. Coleman, 239 Ill. 450.

From the showing in the petition the claim was allowed by the County Court by accident or mistake, or on a misunderstanding of the agreement made by the parties. If the estate has -a receipt in full for the subscription to the building of the church, and the verified petition states that it has, then the presentation and allowance of such claim is a fraud, and its allowance having been obtained through a mistake or by fraud, the allowance should have been set .aside. It is unnecessary to discuss the other contention of claimant. The judgment of the Circuit Court is reversed and the cause remanded with instructions to set aside the allowance of the claim and permit the estate to defend against it.

Reversed and remanded with directions.


text:
    Joseph Cech, Appellee, v. Firemen’s Insurance Company of Newark, New Jersey, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Statement of the Case.
    Action by Joseph Cech, plaintiff, against the Firemen’s Insurance Company of Newark, New Jersey, defendant, for loss of property insured. From a judgment for plaintiff, defendant appeals.

      Abstract of the Decision.
    1. Insurance, § 331

      —when knowledge of agent is knowledge of insurer. Where, in an action on a fire insurance policy on household furniture, the preponderance of the evidence showed that the agent of the insurer knew that the furniture was in a house other than that stated in the policy at the time it was written, and that the insurer, after the loss, sent an adjuster to make out proofs of loss for the insured, held that the knowledge of the agent as to the location of the property was the knowledge of the insurer and that a recovery could be had.
    2. Insurance, § 646*—when evidence admissible to show knowledge of change of location. Where a fire insurance agent was told by the insured that the location of household furniture already insured had been changed to a new location, and at the request of the insured raised the amount of the policy to cover additional furniture purchased by the insured, held that in an action for loss under a renewal policy of insurance in another company, written by the same agent, in which the furniture was described as being in the original location, that evidence of the change made in the old policy was incompetent, though harmless error, but that what was said to the agent as to the location of the furniture when the alteration of the old policy was made was competent on the question of knowledge by the agent as to the change of location.
    Seymour Edgerton and Wilson, Warren & Child for appellant.
    John P. Flood and B. L. Catron, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.


text:
    Sarah C. Wallace, Appellant, v. Samuel L. Wallace, Wilbert O. Nichols, Gertrude E. Nichols, Anna Fling, Arthur Fling and D. C. Smith, Appellees.
    1. Divorce, § 127

      —when Hen of decree for alimony is in personam. Where a decree for alimony does not make it a lien on land which is described in the decree, the lien of the decree is that of a decree in personam and not a decree in rem.

    2. Divorce, § 128*—when decree for payment of alimony does not become Hen on land. An order for temporary alimony and a final decree adjudging and ordering that the defendant pay a certain sum per year as permanent alimony to the complainant, payable in semiannual instalments, does not become a lien on the land then owned by the defendant which automatically remains in force after the expiration of a year from the rendering of a decree, where the decree does not in terms declare the alimony to be a lien on the land.
    3. Divorce, § 127*—when purchaser from defendant in divorce action takes land free from Hen for alimony. A purchaser of land from a defendant in a divorce suit after the expiration of one year from the entering of the decree against the defendant, providing for the payment of alimony in instalments, but not making the alimony a lien on the land, where no execution has been issued on the decree, takes the land free from any lien thereon.
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    E. O. Richardson, W. W. Hartsell, Edward C. Craig and Donald B. Craig, for appellant.
    Chapfee, Chew & Baker and Bryan H. Tivnen, for appellees.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Sarah C. Wallace in October, 1914, filed a bill in equity in the Circuit Court of Shelby county, praying that certain sums due her as temporary and permanent alimony from Samuel L. Wallace be declared a lien upon the land in Shelby county owned by Wallace at the time the order for temporary alimony and the decree for divorce and permanent alimony were entered in the said Circuit Court, in a suit for divorce brought by her against Samuel L. Wallace, which land had been conveyed to Nichols and others after the final decree had been entered in the divorce suit. Nichols and Fling answered the bill setting up that they were bona fide purchasers for value of the said land conveyed by Wallace to Nichols after the order and decree had been entered in the divorce suit, and denying that the decree by any of its terms provided that either the temporary or permanent alimony should be a lien on said land and that the same is or has at any time been a lien on any of said land. Smith also filed an answer setting up that he loaned the money, for which a mortgage was made to him by Wallace on said land, by virtue of an order of the Circuit Court made in the divorce proceeding permitting Wallace to mortgage the real estate therein described to raise money to pay to complainant temporary alimony and expense money and in part for expense money for said Wallace. Issues were joined on the pleadings, and on a trial the bill was dismissed for want of equity. Complainant appeals.

There does not appear to be any dispute over the following facts: Sarah C. Wallace in December, 1910, filed a bill for divorce from her husband, Samuel Wallace, in the Circuit Court of Shelby county. In April, 1910,- an order was made that Wallace pay to appellant $50 per month temporary 'alimony on the first day of each month thereafter and also $600 as expense money, and that an injunction theretofore issued be modified to permit Wallace to mortgage a certain twelve acres of land to raise said expense money, alimony and $400 for his own use. A final decree was entered in the divorce case on February 6, 1912, granting to appellant (1) a divorce and adjudging and decreeing (2) that Samuel L. Wallace deed to appellant a homestead property in Windsor; (3) that appellant is to have the possession and title to certain personal property; (4) that Wallace pay to appellant “as additional alimony the sum of $500 per year, the same to be paid in semi-annual installments of $250, the first payment to be made on the 15th of March, 1912, and the second on the 15th of September, 1912, and subsequent payments to be made at the same time of each year thereafter until the further order of the court; the payments above specified to bear the legal rate of interest from the time the same become due until paid”; and (5) that appellant join with Wallace.in conveying to him any and all real estate which he may now own, except the homestead property to be conveyed to appellant, and on failure of appellant to join in said deed that the master in chancery shall make and deliver said deed to Wallace conveying to him all appellant’s interest in said real estate including the right of homestead and dower.

At the time the final decree was rendered, $300 of the temporary alimony was due and unpaid and has not yet been paid, unless as is contended by appellee the provisions in the final decree are a release of the unpaid instalments of temporary alimony. The instalments of permanent alimony were paid down to, and including the one which became due, September 15, 1913, but nothing has been paid since that time, and there was $500 of permanent alimony due when the bill in this cause was filed.

At the time the final decree in the divorce case was entered, Wallace owned and was in possession of 112 • acres of land in Shelby county, and also the homestead lot in Windsor. On March 6, 1913, Wallace sold and conveyed all said land, except the homestead which had been conveyed to appellant, to Nichols, who had the conveyance recorded and went into possession of the land. No execution was ever issued either on the order for temporary alimony or the decree for permanent alimony. None could have been issued on the final decree for more than a year after it was entered, as the instalments, becoming due for a year and a half after the entering of the decree, appear to have been paid to the clerk of the court for appellant, either on the day or prior to the day the several instalments became due, up to and including the instalment due September 15, 1913.

Appellant, in her bill, alleges that the deed made by Wallace to Nichols was a pretense and that it was made to evade the payment of alimony. Her counsel admitted on the trial that she was unable to produce any evidence of fraud or bad faith on the part of appellees who answered.

The only question presented for review is whether or not the order for temporary alimony and the final decree adjudging and ordering that Samuel Wallace pay $500 per year for permanent alimony to appellant, payable in semiannual instalments, became a lien on the land then owned by him in Shelby county, which would automatically remain in force after the expiration of a year from the rendering of the decree, when the decree itself does not in terms declare the alimony to be a lien on any of such land. This question appears never to have been presented to either the Supreme or Appellate Courts of this State for adjudication, although the question of the effect of a decree granting alimony and specifically declaring it to be a lien on certain lands has been repeatedly reviewed.

It is contended on behalf of appellant that a decree for the payment of alimony semiannually is a lien on the lands of the party against whom it is entered, by virtue of sections 44 and 45 of the Chancery Act (J. & A. ¶¶ 924, 925). Section 44 of the Chancery Act provides: “A decree for money shall he a lien on the lands and tenements of the party against whom it is entered, to the same extent and under the same limitations as a judgment at law.” Section 45 provides: “All decrees given in causes in equity in this state shall be a lien on all real estate respecting which such decrees shall be made; and whenever, by any decree, any party to a suit in equity shall be required to perform any act other than the payment of money, or to refrain from performing any act, the court may, in such decree, order that the same shall be a lien upon the real or personal estate, or both, of such party until such decree shall be fully complied with; and such lien shall have the same force and effect, and be subject to the same limitations and restrictions as judgments at law,”

In construing these sections they must be read in connection with sections 1, 2 and 6 of chapter 77 (J. & A. ¶¶ 6747, 6748, 6752)—the Judgment Act, sections 18 and 20 of chapter 40 (J. & A. ¶¶ 4233, 4235)—the Divorce Act, and with sections 42 and 47 of the Chancery Act (J. & A. ¶¶ 922, 927).

Section 1 of chapter 77 (J. & A. ¶ 6747) provides: “A judgment of a court of record shall be a lien on the'' real estate of the person against whom it is obtained situated within the county for which the court is held, from the time the same is rendered or revived for the period of seven years and no longer * * * . When execution is not issued on a judgment within one year from the time the same becomes a lien, it shall thereafter cease to be a lien, but execution may issue upon such judgment at any time within seven years, and shall become a lien on such real estate from the time it shall be delivered to the sheriff.”

Section 2 of chapter 77 (J. & A. ¶ 6748) provides: “When the party in whose favor a judgment is rendered is restrained by injunction, or by appeal, or by the order of a judge or court, or is delayed, on account of the defendant, either from issuing execution or selling thereon, the time so restrained or delayed shall not be considered as any part of the time mentioned in sections 1 or 6 of this act.”

Section 6 of chapter 77 (J. & A. ¶ 6752) provides: that “real estate levied upon within seven years from the time the judgment-becomes a lien may be sold at any time within one year after the expiration of said seven years.”

Section 18 of chapter 40 (J. & A. ¶ 4233) provides: “When a divorce shall he decreed, the court may make such order touching the alimony * * * as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just; and in case the wife be complainant, to order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court. And the court may, on application, from time to time, make such alterations in the allowance of alimony * * * as shall appear reasonable and proper.”

Section 20 of chapter 40 (J. & A. ¶ 4235) provides: “Whenever in any case of divorce a decree for alimony or maintenance is made a lien on any real estate to secure the payment of any money to become due by installments, and a sale of such real estate shall become necessary to satisfy any of such installments the property shall be sold subject to the lien of the installments not then due unless the court shall direct otherwise, and subsequent sales may, from time to time be made to enforce such lien as the installments may become due, until all installments are paid.”

Section 42 of the Chancery Act (J. & A. ¶ 922) provides : “When any bill is taken for confessed, or upon the hearing the court may make such decree thereon as may be just, and may enforce such decree, either by sequestration of real and personal estate, by attachment, by fine or imprisonment or both, or by causing possession of real and personal estate to be delivered to the party entitled thereto, and by the exercise of such other powers as pertain to courts of chancery and may be necessary for the attainment of justice.”

Section 47 of the Chancery Act (J. & A. ¶ 927) provides : “When there shall be-no direction that a master in chancery or commissioner execute a decree, the same shall be carried into effect by execution or other final process according to the nature of the case directed to the sheriff, or the court may, if necessary, direct an attachment to be issued against the party disobeying such decree and fine or imprison him or both in the discretion of the court and may also direct a sequestration.”

It will not be questioned that a decree ordering the payment of a certain sum semiannually as alimony is a decree for the payment of money. Where a decree for alimony does not make such alimony a lien on land which is described in the decree, the lien of such decree is that of a decree in personam and not a decree in rem. It is, under section 44 of the Chancery Act (J. & A. ¶ 924), a lien on all the real estate of the party decreed to make the payments that are located within the county where the decree is entered. A decree for money which does not specifically make its payment a lien on certain described tracts of land, and which is a lien by virtue of section 44 of the Chancery Act, is a lien to the same extent and under the same limitations as a judgment at law. A judgment at law ceases to be a lien on the real estate of the person against whom it is entered, unless within a year from the time it became a lien an execution is issued on such judgment, and the lien may be revived by issuing an execution and placing it in the hands of the sheriff. A purchaser of real estate from a judgment debtor more than a year after a judgment was rendered, upon which no execution has been issued, takes the land freed from any lien of the judgment. The only exceptions to the rule just stated are those which come within section 2 of the Judgment Act (J. & A. ¶ 6748), to which by judicial construction has been added cases taken to a court of review by a writ of error, wherein a supersedeas has been granted.

Appellant contends that liens, created by chancery decrees on lands, are not destroyed by failure to issue execution thereon within a year; that such liens are not subject to the same limitations and restrictions as judgments at law. That is a correct proposition if the chancery decree comes within the purview of the first clause of section 45 of the Chancery Act (J. & A. 925) and is not solely a money decree, but is a money decree made by the decree a specific lien. Appellant cites Karnes v. Harper, 48 Ill. 527; Kirby v. Runals, 140 Ill. 289; and Wilson v. Ford, 190 Ill. 614, as sustaining her contention. Section 45 of the Chancery Act was not involved or adjudicated upon in the Wilson case, supra.

In 1868, sections 14 and 45 of the Chancery Act were the same as sections 44 and 45 of the present act. (J. & A. ¶¶ 924, 925.) In Karnes v. Harper, decided at that time, it was held that the 14th section declares that a decree for money shall be a lien on the lands of a party against whom it is rendered to the same extent and under the same limitations as a judgment at law. “This section is intended to embrace general decrees for the payment of money, when the proceeding is in personam and not specific and in rem.” A decree in a foreclosure is in the nature of a decree in rem. “The last clause of the 45th section, however, gives the lien to the same extent and subject to the same restrictions as liens created by judgments at law. This section provides for two liens, the first in cases where a decree is in respect to the real estate, to which the decree is pronounced. The second is in cases in which a decree is rendered for the performance of an act other than for the payment of money, and when the court declares the decree to be a lien on real and personal property until the decree shall be complied with by the party. It will be observed that the words ‘such lien’ follow in immediate connection with the language creating the second lien provided for by that section, and it manifestly refers to the latter and not the first.” In the Kirby case, supra, decided in 1892, Mr. Justice Baker rendering the decision reaffirmed the ruling in the Karnes case, supra, and further said that when the Legislature re-enacts a law in the same words, that has been judicially construed, it will be presumed it used such words in the sense that had been placed upon them.

Cases involving the question of the lien of decrees for alimony in other States are so affected by local statutes that they are of little value as precedents, but the general rule held by many States is that a decree for alimony creates no specific lien on the estate of the husband unless so provided by statute, or the decree fastens it upon some particular property. 14 Cyc. 782; 2 Am. & Eng. Encyc. of Law 133; 1 R. C. L. 944. A Kansas case, Scott v. Scott, 80 Kan. 489,103 Pac. 1005, is very similar to the case at bar, wherein it was held, under a statute very similar to the Illinois Statute, that such a decree was not a lien on lands conveyed. While a lien may be enforced in equity, the fact that appellant has not sued out an execution and thereby sought to enforce her alleged lien and now seeks to enforce or create a lien by a bill in equity is an admission that the alimony is not a lien that can be enforced under the original decree.

While it may be contended that no execution could have been issued within a year because there was no default in the payment of permanent alimony within that time, there were ample provisions in the statute whereby, under section 42 of the Chancery Act, it could have been made a lien on specific land and such lien would have continued without the issuance of an execution, or, under section 18 of the Divorce Act, the court could have made Wallace give a mortgag’e on the land or other reasonable security for the payment of the instalments as they became due, and it had the authority to make such order touching the alimony as was reasonable and just and to enforce the payment of such alimony in any manner consistent with the rules and practice of the court. The sections of the Chancery and Divorce Acts are very general and flexible. They permit and authorize courts in such matters to fully protect and secure the payment of alimony if the defendant has any real estate, either by making the payment a specific lien or compelling the defendant to secure payment by giving a bond or mortgage.

We are constrained to hold that that part of the decree in the divorce case, which ordered the payment of a certain sum as alimony semiannually, was a decree in personam against Wallace and as it was not made a lien specifically on any of the land held by him, it was subject to the same limitations as a judgment at law and ceased to be a lien at the end of a year from the date of its rendition, unless an execution shall have been issued thereon within a year, and that Nichols having bought the land more than a year after the rendition of the decree, and before any execution was issued, took it discharged from any lien.

What has been said in reference to the permanent alimony applies also to the temporary alimony. The decree of the Circuit Court is affirmed.

Affirmed.


text:
    Roena Moltman, Appellant, v. Business Zen’s Accident Association of America, Appellee.
    1. Appeal and error, § 1303

      —what presumptions raised where bill of exceptions does not contain all of evidence. Where a hill of exceptions does not state that it contains all the evidence, it may be presumed that there was other evidence offered on which the judgment can he sustained, but it will not be presumed that other evidence was introduced by reason of which the judgment must be reversed.
    2. Appeal and error, § 551*—necessity of exceptions. Where no mention was made in a bill of exceptions of the judgment entered in the trial court and there were no exceptions therein to the judgment there entered or to rulings on propositions of law, held that, nevertheless, such questions would' be considered on appeal under the provisions of the Practice Act, sec. 81 (J. & A. ¶ 8618).

    3. Insurance, § 127*—what laws govern construction of contract. A contract of insurance made within the State with a corporation whose domicile is without the State is to be considered according to the laws of the State where made.
    4. Insurance, § 747*—when beneficiary bound by by-law passed after issuance of certificate. A beneficiary under a certificate of insurance in a mutual assessment accident insurance association, providing that the insured should be bound by by-laws in force at the time of the issuance of the certificate and those thereafter enacted by the association, held bound by a by-law passed by the association after the issuance of a certificate, providing that, in case of death by drowning, the association should be obligated to pay only one-tenth of the amount provided as payable by the certificate unless the claimant should establish the accidental character of the death by the testimony of at least one witness to the accident other than the insured himself.
    5. Insurance, § 711*—inapplicability of provisions of Assessment Insurance Act to foreign corporation doing business by mail. The provision of the Assessment Insurance Act, sec. 15 (J. & A. ¶ 6563), requiring every policy thereafter issued by a corporation doing business under the act and promising payment to be made upon a contingency of death or physical disability shall specify the sum of money which it promises to pay upon such contingency, does not apply to an association incorporated under the laws of a foreign State and not authorized to do business in this State, but which transacts business therein by mail.

      Appeal from the Circuit Court of Cass county; the Hon. Güy R.. Williams, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 21, 1916.
    Charles C. Dutch, for appellant.
    J. J. Neiger and' Gilmore & Brown, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

Boena Mohlman, on January 1, 1915, began a suit in assumpsit in the Circuit Court of Cass county against the Business Men’s Accident Association of America. The declaration consists of one count which avers that the defendant, a corporation, organized under and doing business by virtue of the mutual assessment accident insurance laws of the State of Missouri, on December 6, 1911, issued a certificate of insurance to William G. Mohlman, and in consideration of the application for membership and the further payment of dues and assessments promised that it would pay the plaintiff $5,000 in the event of the accidental death of William G. Mohlman, and that in said certificate are certain provisos, conditions and stipulations, which are shown by' a copy of it attached to the count; that on October 23, 1913, said Mohlman was accidentally drowned in the Illinois River at a point unknown to plaintiff; that the last time he was seen alive was passing up the river at 4:30 p. m. October 23rd, in his motor boat under a certain bridge, and the next morning his body was found at 6:30 a. m. floating in the river; that an inquisition was held over the body of Mohlman and a coroner’s jury returned a verdict that he came to his death by accidental drowning; that due proofs of death by accidental drowning were made and that Mohlman complied with all the conditions of the policy in his lifetime, yet the defendant refuses to pay plaintiff said sum of $5,000. On the day the declaration was filed, the defendant, by its attorneys, filed a written entry of appearance. No pleas were filed. On the hearing it was stipulated that the parties waive the necessity of formal pleadings, and that no advantage shall be taken, either in the trial court or on appeal, because of the failure to file pleas or conform to the rules of procedure, and that all questions of law involved be determined without formal pleading or procedure. The cause was tried by the court on April 12,1915, without a jury, and judgment rendered “for the plaintiff for $500 and against plaintiff for costs as per stipulation.” The plaintiff prosecutes this appeal.

The bill of exceptions contains a stipulation signed by counsel for the parties showing the following facts:

(1) That Mohlman was a resident of Beardstown, Illinois, at the time he made application for membership and insurance in the defendant corporation, and that the application was forwarded by mail to the defendant at Kansas City, Missouri.

(2) That the defendant received the application on December 6, 1911, and forwarded a certificate of insurance, with a copy of its by-laws, which are made a part of the stipulation, from Kansas City to Mohlman at Beardstown, Illinois, with a letter acknowledging receipt and acceptance of the certificate and by-laws, which was to be signed by Mohlman and returned to appellee at Kansas City. The letter is dated at Beardstown, December 7, 1911, was signed by Mohlman and returned by mail to appellee. Section 1 of article 9 of the by-laws provides: These by-laws may be amended at any meeting of the board of directors by a two-thirds vote of the members present, notice having been first given to each member of the board three days prior to the meeting. There is indorsed on the back of the certificate among other things the words: “Important. Remember that the by-laws, and all amendments thereto, are a part of your contract.”

(3) That the defendant is a corporation organized July 1,1909, under the Insurance Laws of Missouri to transact mutual assessment, health and accident insurance, with its home office at Kansas City, Missouri, and it was not authorized to do business in Illinois, but transacted its business by mail.

(4) That section 4 of article 4 of the by-laws at the time of the application for and delivery of the policy provided: “Whenever death occurs as the result of injuries caused by the accidental discharge of firearms where there is no eye-witness to the accident except the member himself; or whenever death occurs as the result of cerebral hemorrhage, cerebral paralysis, apoplexy, or heart failure, caused by accidental injuries, the liability of the Association for payment of benefits shall be limited to one-tenth the amount otherwise payable. ’ ’

That on October 15, 1912, section 4 of article 4 was amended to read as follows: “Whenever any member carrying accident insurance receives bodily injuries, fatal or otherwise, (1) by the discharge of firearms, (2) by drowning, (3) or where the body is not recovered and identified, the claimant shall establish the accidental character of the injury by the testimony of at least one eye-witness to the accident other than the member himself, and in the event of his failure so to do, or whenever death, caused by accidental injuries, occurs as the result of cerebral hemorrhage, cerebral paralysis or apoplexy, without fracture of the skull, or by heart failure caused by accidental injuries, the liability of the Association for payment of benefits shall be limited to one-tenth of the amount otherwise payable.” That said by-laws as amended under date of October 15, 1912, were in force and effect at the time of the death of said Mohlman.

(5) That on October 23, 1913, at 4 p. m., Mohlman left his place of business in Beardstown to go hunting on the Illinois River, alone in his motor boat; that the next morning his dead body, without any marks of violence, was found floating in the river, and a coroner’s jury returned a verdict that he came to his death by accidental drowning; that proper notice and proofs of death were made and that at the time of his death Mohlman was in good standing and had paid all assessments made against him.

(6) That the parties may present for the court’s consideration the statutory laws of any State and the decisions of any court of record of any State bearing upon the issue herein and the same shall be considered by the court as if duly pleaded and proved.

That plaintiff claims $5,000 and ten per cent, damages and $250 reasonable attorney’s fees. The defendant claims that it is only bound to pay plaintiff $500, which it has tendered, and has always been ready to pay, and "if the court shall find that $500 is the sum defendant is liable for, the costs shall be assessed against plaintiff.

The plaintiff presented propositions of law requesting the court to hold: (1) that while the contract was made in Illinois, yet its performance was in the State of Missouri, and it is to be construed by the law of Missouri; (2) that section 6952 of the Revised Statutes of Missouri forms a part of the contract and the sum specified in the contract must be paid; and (3) that the amendment of section 4, art. 4 of the by-laws of defendant, made October 15, 1912, regarding accidental drowning without the presence of an eyewitness, is unreasonable, and the'court refuses to give said by-law as amended retroactive effect. These the court marked refused. The court marked held, propositions presented by the defendant: (1) that the certificate sued on is an Illinois contract and not subject to or affected by the statute of Missouri requiring assessment companies to specify in their policies the exact amount to be paid upon each contingency insured against; (2) that under the terms of the membership certificate issued by defendant, subsequent amendments became a part of such certificate and the amendment of section 4, art. 4, is a part of the contract of insurance sued on by plaintiff; and (3) that the contract sued on is an Illinois contract and to be construed under and in accordance with the law of Illinois.

The bill of exceptions contains only the written stipulation and the stipulation made in open court with the propositions of law presented. It does not state that the facts therein stated were the only facts presented to the trial court for its judgment. It also states that the parties may present for the court’s consideration the statutory law of any State and the decisions of any court of record of any State and the same shall be considered as if duly pleaded and proved. There is no, statement that any statute or decision of a court of record of the State of Missouri was presented and introduced in evidence. It might be inferred from one of plaintiff’s propositions that section 6952 of the Missouri Statutes was brought to the attention of the court. When the bill of exceptions does not state that it contains all the evidence, it may be presumed that there was other evidence offered on which- the judgment can be sustained, but it will not be presumed that other evidence was introduced, by reason of which the judgment must be reversed.

The judgment is not mentioned in the bill of exceptions, neither is there any objection nor exception in the bill of exceptions to the judgment, nor is there any objection or exception to the ruling of the court on propositions of law presented by the respective parties. Appellee insists that because the bill of exceptions does not contain any exception upon any question whatever, that therefore no question has been saved for review. Section 81 of the Practice Act (J. & A. ¶ 8618), as amended, provides that if during any trial in any civil or criminal case either party shall submit to the court any matter for a ruling thereon and the court shall rule adversely to the party submitting the same, such matter shall be deemed a matter for review in any court to which the same cause may be taken on appeal without formal exception thereto. In Miller v. Anderson, 269 Ill. 608, this section of the Practice Act was reviewed, and it was held that the said amendment to the Practice Act was intended to simplify the practice by doing away with the formal exceptions that prior thereto had been held necessary to save questions for review.

The contract sued upon was made in Illinois with a Missouri corporation. Counsel for appellant state that to be the fact in their argument, and in their reply brief say: “There is no dispute in this case as to where the contract was made. Appellant in her brief and argument, p. 25, says, ‘ Since the final act of the consummation of the contract was at Beardstown, in Illinois, * * * the contract was made in Illinois. ’ ’ ’ The situs of the contract being in the State of Illinois, it is to be construed according to the laws of Illinois. Rose v. Mutual Life Ins. Co., 240 Ill. 45, 144 Ill. App. 434; Coverdale v. Royal Arcanum, 193 Ill. 91; Ingersoll v. Mutual Life Ins. Co., 156 Ill. App. 568; Mutual Life Ins. Co. v. Cohen, 179 U. S. 262; Mutual Life Ins. Co. v. Hill, 193 U. S. 551.

In this State the rule is well settled that a certificate of membership in a benefit society, which provides that the member shall be bound by the laws, rules and regulations then in force, or which may thereafter be enacted by the society, sufficiently reserves the right of the society to amend existing by-laws. A member who accepts a contract in which he agrees to be bound by the laws, rules and regulations then in force or which may thereafter be enacted, makes the certificate subject to the reservation to the society of the right to amend or change the by-laws of the society. Fullenwider v. Royal League, 180 Ill. 621; Scow v. Royal League, 223 Ill. 32; Seitzinger v. Modern Woodmen, 204 Ill. 58; Moerschbaecher v. Supreme Council, 188 Ill. 9.

The certificate accepted by Mohlman contains a provision that “by the acceptance of this policy the said member agrees to the several provisions and conditions of the said by-laws as they now exist, and as they may be hereafter, from time to time, amended and changed. ’ ’ Indorsed on the back of the certificate were the words: “Important. Remember that the bylaws, and all amendments thereto, are a part of your contract.” Section 4 of article 4 of the by-laws when the policy was issued to Mohlman limited the benefits to be paid in the event of death under certain contingencies to one-tenth of the amount otherwise payable. Within a year after the issuance of the policy, the defendant amended that section of the by-laws by adding the contingency, that if death should happen by drowning then unless “the claimant shall establish the accidental character of the injury by the testimony of at least one eye-witness to the accident other than the member himself, * * * the benefits to be paid shall be limited to one-tenth of the amount otherwise payable.”

It is contended that under section 244 of chapter 73 of the Statutes of Illinois (Hurd’s Statute 1913, section 15 of the Assessment Insurance Act passed June 22, 1893, J. & A. ¶ 6563), appellant is entitled to recover the full amount of $5,000 because of the accidental death of Mohlman. That provision of the statute provides: “Every policy hereafter issued by any corporation doing business under this act, and promising payment to be made upon a contingency of death or physical disability, shall specify the sum of money which it promises to pay under such contingency.” This section by its terms only applies to “any corporation doing business under this act.” It was held in Crawford v. Northwestern Traveling Men’s Ass’n, 226 Ill. 57, that this act does not apply to companies in existence when this act was passed, unless they reincorporate under section 6 of the Act (J. & A. ¶ 6554). The stipulation shows that the defendant company is incorporated under the laws of Missouri and was not authorized to do business in- Illinois but transacted its business by mail. The defendant was not doing business under the Act of 1893, and is not governed by section 15 of that act.

Section 26 of chapter 32 of the Statute (J. & A. ¶ 2443), provides that foreign corporations doing business in this State shall be subjected to all the liabilities, restrictions and duties that are or may be imposed on corporations organized under the general laws of this State. It was said in North American Ins. Co. v. Yates, 214 Ill. 272: “In applying the statutes governing insurance to foreign corporations we have said: ‘The purpose of our statute is to produce uniformity in the powers, liabilities, duties and restrictions of foreign and domestic corporations of like character, and to bring them all under the influence of the same law.’ ”

By the provisions of the certificate issued to the insured, the contract of insurance consists of the certificate, the application for membership and the by-laws of appellee. The by-laws are a binding part of the contract unless inconsistent with or in conflict with some general law of this State. The policy with the by-laws clearly specifies the .amount payable on the contingency of death from drowning without an eyewitness.

It is also contended that the amendment is unreasonable. A subsequently enacted by-law, forfeiting all claims for the death of a member by suicide or intoxication, was held valid and reasonable. Supreme Lodge v. Kutscher, 179 Ill. 340; Supreme Lodge v. Treble, 179 Ill. 348. In Scow v. Royal League, supra, a by-law enacted reducing the benefit one-half if the member shall die by his own hand, whether sane or insane, was held reasonable and valid. “A party cannot claim the right to have a contract remain unaltered when the contract itself provides that it may be changed.” .Baldwin v. Begley, 185 Ill. 180. If the amendment would be reasonable as an original by-law, at the formation of the corporation in order to avoid such extra hazards as experience shows necessary, it is reasonable as an amendment. The amendment was a reasonable exercise of the power reserved to defendant in its certificate issued to the insured.

We find no error in the ruling of the trial court on the propositions of law and the judgment is affirmed.

Affirmed.