text:
    The People of the State of Illinois for use of James Mitchell Hoyt and Emma Patten Hoyt, Appellants, v. Richard J. McGrath and Chicago Bonding & Surety Company, Appellees.
    Gen. No. 22,619.
    1. Clerks of courts, § 25

      —when recovery may be had on bond. When money is paid into court by order of the court the clerk is the proper custodian and receives it by virtue of his office, and upon his failure to account therefor a recovery may be had on his official bond.
    2. Clerks of courts, § 11*—capacity in which money of litigants is received. Money of litigants received by clerks of courts is received by them in their official and not in their private capacity.
    3. Clerks of courts, § 25*—when bond should be construed as undertaking to pay over money paid into court. The bond of a clerk of court, conditioned upon the faithful performance of the duties of his office, should be construed as an undertaking to pay over to parties entitled thereto all moneys coming into his hands as an officer of court.
    4. Officers, § 52*—when liable for loss of public funds. A public officer holding public funds is responsible. for a degree of care more than that of an ordinary bailee, and is not excused for the loss of such funds unless it is due to the act of God or to the public enemy.
    5. Officers, § 52*—what is nature of obligation of public officer receiving money belonging to others. Upon principle and considerations of public policy, the obligation of a public official receiving money belonging to others is the same with respect to private as to public funds.
    Dever, J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed February 19, 1917.
    Frank D. Fulton and Eugene L. Garey, for appellants ; Earl James Garey, of counsel.

      Harry de J. Harman and Sabath, Stafford & Sabath, for appellees; Charles B. Stafford, of counsel.
    Alfred S. Austrian, amicus curies.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiffs are seeking, by an action on his bond, to recover $577.50 paid to the defendant Richard J. McGrath, clerk of the Superior Court of Cook county, in a proceeding in court. The defense was that the money was lost by the clerk without his fault. We are informed by counsel that other sums totaling about $22,000 have been deposited with the clerk, Mr. Mc-Grath, under similar circumstances and lost.

The declaration alleges that in an action pending in the Superior Court, James Mitchell Hoyt and Emma Patten Hoyt paid into court $577.50 under the following order:

“that the clerk of this court accept the sum of five hundred seventy-seven dollars and fifty cents ($577.50), tendered herein by the defendants, and to hold the same until the further order of this court.” It is alleged that Bichard J. McGrath accepted this sum and receipted therefor as clerk of the Superior Court, and that thereafter, on November 4, 1914, it was ordered in said cause
“that the clerk of this court pay to defendants’ counsel, E. L. Garey, the sum of $577.50, said sum being the amount heretofore paid into court by said defendants, and deposited with the clerk of this court, subject to further order of this court.”

This order it is averred the defendant McGrath refused to comply with, wherefore the plaintiffs bring suit on his bond, which is conditioned that he shall “faithfully perform all the duties required of him by law,” against him and the defendant Surety Company,

By appropriate pleas the defense was set up that the money was lost without the fault of Richard J. McGrath, by reason of the failure' of' the La Salle Street Trust & Savings Bank, in which he had deposited it after making inquiries which led him to believe that this was a safe banking institution. Plaintiffs moved to strike said pleas for insufficiency, but the court, being of the opinion that the pleas set forth a good defense, denied the motion, and plaintiffs elected to stand thereby.

The question, therefore, presented for our determination is whether the clerk of the court and his surety are liable in an action on his bond for the loss of money paid into court and deposited with him by order of court, when the loss is due to the failure of a bank in which he, in the exercise of ordinary care, has deposited it. The statutory obligations on the clerk material to this question are, that “the said clerks shall attend the sessions of their respective courts, preserve all the files and papers thereof, make, keep and preserve complete records of all the proceedings and determinations thereof, except in cases otherwise provided by law, and do and perform all other duties pertaining to their said offices, as may be required by law or the rules and orders of their courts respectively.” Hurd’s Ill. St. 1916, ch. 25, sec. 13 (J. & A. ¶ 2138). And in the same chapter, section 4 (J. & A. ¶ 2129), it is provided that the bond of the clerk of the court shall be conditioned “for the faithful performance of the duties of his office, and to pay over all moneys that may come to his hands by virtue of his office, to the parties entitled thereto, and to deliver up all moneys, papers, books, records, and other things appertaining to his office, whole, safe and undefaced, when lawfully required so to do.”

We are in accord with the proposition that “when money is paid into court by order of the court, the clerk is its proper custodian and receives it by virtue of Ms office, and upon Ms failure to account therefor a recovery may be had on Ms official bond.” 6 Amer. & Eng. Encyc. of Law (2nd Ed.) 142. A large number of sound decisions support this rule; among those, perhaps as convincing as any, is Howard v. United States, 184 U. S. 676, where Mr. Justice Harlan in the opinion of the court said:

“But it is suggested that, in the absence of a statute distinctly so providing, the clerk was not entitled to receive the money deposited in payment and satisfaction of Stewart’s claim. It is true that no statute declares in words that a clerk may receive money brought into court for the purposes of a pending suit. But it is clear that Henry county was entitled to bring, into court and tender to its adversary the amount it was willing to pay in satisfaction of his claim. It cannot be that it was the duty of the judge of the court himself to have received the money and personally deposited it as required by law. No one has ever supposed that a judge was under obligation to perform such services. Who, then, was to receive the money? Plainly it was the duty of the clerk, who was the arm of the court, kept its records showing money paid in by suitors or officers, and was under bond conditioned that he would faithfully perform all the duties of his office. He was allowed by statute a commission ‘for receiving, keeping and paying out money in pursuance of any statute or order of court.’ Rev. Stat. sec. 828. It was well said by Judge Caldwell, delivering the unanimous judgment of the Circuit Court of Appeals, that ‘for more than a century the clerks of the Circuit Courts of the United States have been receiving and paying out the moneys of suitors in those courts in the usual and customary manner, and during that time neither the clerks nor the suitors nor the court ever dreamed that they were performing this service as private individuals, and were not officially responsible for the moneys they were receiving as such clerks.’ ”

Among many other cases in other jurisdictions so holding are: In re Finks, 41 Fed. 383; Coleman v. Ormond, 60 Ala. 328; Walters-Cates v. Wilkinson, 92 Iowa 129; Bantley v. Baker, 61 Neb. 92. This rule has also been stated in decisions in our own State, in Hammer v. Kaufman, 39 Ill. 87; Doyle v. Teas, 5 Ill. 202; DeWolf v. Long, 7 Ill. 679, and especially in the more recent case of Baltimore & O. R. Co. v. Gaulter, 165 Ill. 233. In this latter case, although the order for the payment of money did not designate the clerk as a depositary nor order him to receive the money, yet the court held that it was paid under a decree, was received by the clerk as a fund of the court, and became such a fund under the control of the court; and the opinion seems to recognize the rule to be that if the fund was received by the clerk by virtue of his office he was a guarantor of its safety.

It has long been the recognized practice in the courts of this State for the clerks to receive and pay out money of litigants. It cannot be seriously contended in the face of the overwhelming weight of authority that the clerks in so acting are acting merely in a private capacity. We are of the opinion that it is established beyond any controversy that clerks in receiving such funds receive and hold them in their official capacity.

We think it follows, as a corollary to the above rule, that a bond conditioned upon the faithful performance of the duties of the office should be construed as an undertaking to pay over to parties entitled thereto all moneys coming into the hands of the clerk as an officer of the court.

In 5 Cyc. 754, it is said: “If a bond is given under authority of a law, that which is not expressed but should have been incorporated is included in the bond, while that which is not required by law is excluded.” This rule has been followed by our Supreme Court in Ramsay’s Estate v. People, 197 Ill. 572. In this' case it was contended that the condition of the bond was simply the faithful performance of the warden’s duties, and not to account for funds coming into his hands, but the bond was construed to include the obligation to account for funds, the court saying: “In other words, a public officer, when he executes a bond binding himself to perform the duties of his office, becomes insurer of the public funds coming into his hands, by virtue of the bond and the law which becomes a part of the bond.” To the same effect is Purcell v. Town of Bear Creek, 138 Ill. 524. Citations might be made of decisions in other States, but our own court has settled the law in Illinois.

It is also settled by the overwhelming weight of authority that a public officer holding public funds is responsible for a degree of care more than that of an ordinary bailee, and is not excused for the loss of such funds unless it is due to the act of God or to the public enemy. The Ramsay case, above cited, is squarely in point, the court saying of the public officer:

“He is not relieved from liability, even though he is so unfortunate as to lose money deposited by him in a bank which he supposes to be solvent, but which turns out to be insolvent. In other words, he is not a mere bailee, and, therefore, cannot call upon the public to bear the loss. (Mechem’s Public Offices and Officers, secs. 297-302, inclusive.)
“A public officer ‘is liable upon his bond for the loss of public funds, deposited by him in a bank and lost through its failure, though the bank was reputed solvent, and such deposit was necessary for the safety of the funds.’ (Mechem’s Public Offices and Officers, sec. 302; State v. Moore, 74 Mo. 413; United States v. Prescott, 3 How. 578.)”

Other decisions in this state are Thompson v. Board of Trustees, 30 Ill. 99; Oeltjen v. People, 160 Ill. 409; Swift v. Trustees of Schools, 189 Ill. 584; Ramsay’s Estate v. People, 197 Ill. 594; Trustees of Schools v. Cowden, 240 Ill. 39; Town of Cicero v. Hall, 240 Ill. 160; Town of Cicero v. Grisko, 240 Ill. 220. See also, County of Lake v. Westerfield, 273 Ill. 124. Quotations from the opinions in these cases, and from a very large number which might be added, would only repeat the established rule which makes an officer receiving public funds a guarantor of their safety.

The foregoing principles have "been supported and stated in so many cases as to make their determination virtually free from difficulty. The authorities are almost wholly in harmony thus far.

We now come to a suggestion upon which there is a sharp conflict in the decisions of the courts of other States. This suggestion is that there is an exception to the general rule of the liability of an officer, where the funds in his possession are private funds as distinguished from public funds. It is contended by counsel for the defendants, and was apparently the opinion of the trial court, that where pursuant to an order of court litigants pay money to the clerk, in the event of loss the clerk is not absolutely liable for such moneys, and can only be liable in the event that such loss is occasioned through his fault or negligence. People ex rel. Nash v. Faulkner, 107 N. Y. 477, is a decision supporting this view. It would seem from reading the opinion in this case that the court was inclined to the view that officials are not absolutely liable even for public moneys coming into their hands; however, the court was of the opinion that as the law did not provide the officer with a safe or other place of deposit for the private fund, it was left to his own good sense and judgment to determine how he should keep it, and that he should be responsible only for good faith and reasonable diligence in the care of the money. Other cases so holding are Wilson v. People, 19 Colo. 199; Fairchild v. Hedges, 14 Wash. 117,

Directly opposed to these cases we have the decisions in Morgan v. Long, 29 Iowa 434; Wright & Co. v. Harris, 31 Iowa 272; Havens v. Lathene, 75 N. C. 505; State v. Gatzweiler, 49 Mo. 17.

Northern Pac. Ry. Co. v. Owens, 86 Minn. 188, is a well-reasoned opinion, holding that there is no distinction between public and private funds in the hands of a public officer as to his liability therefor. In accord with this is United States v. Griswold, 9 Ariz. 304, 80 Pac. Rep. 317; also State v. Powell, 67 Mo. 395; Lanham v. Dies (Tex. Civ. App.), 98 S. W. Rep. 897, and Phillips v. Lamar, 27 Ga. 228. In the larger number of decisions the distinction between public and private funds is held to have no sound basis.

Upon principle we are unable to discern any reason for making any distinction between public and private funds. No reason lies in the source of the moneys, for, whether paid to public officers as taxes or as a deposit in a litigated case, the money comes from citizens under legal mandates; the citizen has no more choice as to the personnel of the officer in the one case than in the other; he pays involuntarily to an officer not of his selecting. Neither is there any difference inherent in the money itself; whether a public or private fund, the necessity for its safe-keeping is equally imperative. If we could imagine any different degree of necessity for safety, it would lie in the direction of greater care for private funds, on the ground that the individual would probably be less able than the public to incur loss. Neither should there be any difference in the degree of duty with reference to safety between one officer charged by law as to the custody and disposition of funds coming to him by virtue of his office, and any other officer under similar duties and obligations.

We hold that considerations of public policy lead to the conclusion that the obligation with respect to private funds is the same .as it is with respect to public funds; the character of the fund makes no difference. The strict measure of accountability must apply just as forcibly to private funds officials receive as to public funds. In the eye of the law, public and private property are equally sacred and entitled to the fullest obligation of official protection. Litigants in our courts are just as much entitled to the security flowing from the strictest responsibility of court officers as are individuals contributing to a public fund.

It might be added that private funds coming into the hands of a public official by virtue of his office, strictly speaking, cease to have the character of private funds, and are on a parity with any funds in the custody of the public, through its official representative.

From the above considerations it follows that the judgment of the Circuit Court should be reversed, and, as it appears that upon the facts admitted by the defendants in their affidavits of merits there is no defense in law to plaintiffs’ claim, judgment for the amount due, that is, $577.50, is entered against the defendants in this court.

Reversed and judgment here for $577.50.

Mr. Justice Dever dissents.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    Nathan Wolf and Morris Choynski, Appellees, v. Selig Polyscope Company et al., Appellants.
    Gen. No. 22,644.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 1

      —when evidence insufficient to show contract. Evidence held to show that no contracts of sale were entered into between the plaintiffs and the defendants respectively which defendants conspired to break, in an action to recover damages, charging that the defendants had so conspired.

      Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of facts.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Action by Nathan Wolf and Morris Choynski, plaintiffs, against the Selig Polyscope Company, a corporation, George Kleine and Essanay Film Manufacturing Company, a corporation, defendants, charging conspiracy to injure plaintiffs’ business. Prom' a judgment for plaintiffs for $2,000, defendants appeal.
    The plaintiffs were engaged in the exhibition business and the business of buying and selling motion picture posters. The defendants were motion picture film manufacturers or producers, and in connection with such business printed and distributed posters which they sold to theater proprietors for advertising purposes at" their theaters.
    William A. Jennings, Richard J. Cooney and John A. Verhoeven, for appellants.
    Sonnenschein," Berkson & Fishell, for appellees.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Saxes, § 16 —what are requisites of contract as to definiteness. A contract of sale, to be enforceable, must be definite as to amount, the price, terms of payment, and time of delivery.


text:
    Ellen Barrett, Administratrix, Plaintiff in Error, v. Annie Marschak, Administratrix, Defendant in Error.
    Gen. No. 22,657.
    (Not to be reported in full.)
    Error to the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed February 19, 1917.
    Rehearing denied March 5, 1917.
    Statement of the Case.
    Action by Ellen Barrett, administratrix of the estate of Thomas E. Barrett, deceased, plaintiff, against Annie Marschak, administratrix of the estate of Joseph Marschak, deceased, defendant, to recover on a replevin bond. From a judgment for defendant, plaintiff brings error.
    Opinions on phases of the case are found in 154 Ill. App. 637, 171 Ill. App. 601, and 192 Ill. App. 481. Thomas E. Barrett, deceased, was sheriff of Cook county, and was succeeded by Christopher Strassheim. The replevin bond in question was given to Barrett as such sheriff. After the cause was remanded all pleas were withdrawn and an amended fourth plea was filed setting up as a bar a judgment in the Municipal Court adverse to the plaintiff in that case, Strassheim, which was affirmed (171 Ill. App. 601). Replication to the plea set up that Strassheim had no title and no right of action and that plaintiff herein was not a party to that action. Demurrer to replication was filed, which plaintiff moved be carried back to plea, and motion was denied and demurrer sustained. Trial was thereupon had.
    Abstract of the Decision.
    1. Appeal and error, § 1733

      —when prior decision on appeal is binding. The prior decision of the Appellate Court, holding that the right of action upon a certain replevin bond given to a sheriff vested on his death in his administratrix and not in his successor, rendered in an action brought by such successor upon the bond, held binding upon the court in a subsequent action brought thereon by the administratrix, and a plea in such action of res judicata would be demurrable.
    2. Pleading, § 223*—what is effect of abiding by replication on overruling of motion to carry demurrer back to plea. Where a demurrer to a plea is sustained and the pleader does not ask leave to amend his plea, he will be held to abide by or stand by his plea, and may be heard to urge on review that his plea was good in law, and the same effect follows where a motion to carry a demurrer to a replication back to a plea is overruled and the parties proceed to trial.
    Jacob Levy and Josiah Burnham, for plaintiff in error.
    Kerr & Kerr, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Chicago Savings Bank & Trust Company and Lucius Teter, Plaintiffs in Error, v. Mary J. Dunn and William H. Dunn, Defendants in Error.
    Gen. No. 22,665.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Petition by the Chicago Savings Bank & Trust Company and Lucius Teter, petitioners, in a suit for foreclosure brought by said company, for a writ of assistance against William H. Dunn, defendant, and Mary J. Dunn, not a defendant. From an order denying such writ as to Mary J. Dunn, petitioners bring error.
    This suit was to foreclose a purchase money mortgage given by Lyda Champlin to secure $2,500 on the purchase of certain real estate from Lucius Teter for $2,900. Champlin conveyed the premises to William H. Dunn, who occupied the premises thereafter. Champlin and William H. Dunn only were made parties defendant to the suit. Sale of the premises was had therein to Teter, and he received deed on expiration of the period of redemption. After demand for possession made upon William H. Dunn and Mary J. Dunn, his wife, deeds from Champlin to William H. Dunn and from William H. Dunn to Mary J. Dunn, both dated prior to the bringing of the suit, were recorded, and this petition for writ of assistance was thereupon filed. The decree of sale, provided for letting the purchaser into possession and that a writ of assistance should issue.

      Abstract of the Decision.
    1. Mortgages, § 450

      —when wife of owner of redemption is not necessary party to foreclosure suit. The wife of the owner of the equity of redemption is not a necessary or a proper party to proceedings to foreclose a purchase money mortgage.
    2. Homestead, § 43*—when cannot be asserted. A homestead cannot be asserted against a purchase money mortgage.
    3. Homestead, § 65*—when conveyance by husband to wife of incumbered homestead is void. A conveyance by a husband to his wife of their homestead valued as an equity at $400 is void under the Statute of Frauds and passes no title. '
    4. Dower, § 36*—when cannot be asserted. Dower cannot be asserted against a purchase money mortgage.
    5. Assistance, writ of, § 4*—when purchaser at foreclosure sale entitled to. In a suit to foreclose a purchase money mortgage, where sale was had and deed given to the purchaser, held that the purchaser would be entitled to a writ of assistance for possession of the lands against both a defendant in such suit and against his wife residing with him on the lands, notwithstanding she was not a party to the suit and notwithstanding a deed of said lands by him to her of record.
    Roy C. Merrick, for plaintiffs in error.
    Louis W. McIntyre, for defendant in error Mary J. Dunn.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Filomena Drtina and Rosie Drtina, by Filomena Drtina, Appellees, v. Charles Tea Company, Appellant.
    Gen. No. 22,675.
    1. Judgment, § 669

      —when evidence sufficient to show jurisdiction of foreign court. In an action upon a judgment of the State of Indiana on an award of the Indiana Industrial Board under the Workmen’s Compensation Law of that State, jurisdiction of the court rendering such judgment over the defendant held shown by sufficient service of process upon defendant’s agent, by appearance of defendant’s attorney and participation in the trial, by decision of the board, by notice to the defendant of intention to apply to the Superior Court of that State for a judgment on the award.
    2. Appeal and error, § 35*—when constitutionality of foreign statute will be presumed. The Appellate Court will assume the constitutionality of a foreign statute.
    3. Workmen's Compensation Act, § 1*—how foreign statute construed. Where a foreign Workmen’s Compensation Act provided that it should not apply to employees engaged in interstate or foreign commerce or their employers in case the laws of the United States provide for compensation or for liability for injury or death by accident of such employees, held that such act would exclude only-those who should be provided for by federal statute, and would not exclude those who should not be so provided for, notwithstanding they were engaged in interstate commerce.
    4. Judgment, § 668*—when evidence sufficient to establish foreign judgment. In an action upon a foreign judgment based upon an award under the Workmen’s Compensation Act of the foreign State, a transcript of such judgment, duly authenticated, the act, and the procedure in the case from which the judgment resulted, held sufficient to establish such judgment in such action, notwithstanding there was not a full and complete transcript of such judgment.
    5. Judgment, § 668*—what constitutes prima facie proof of giving of notice of entry of foreign judgment. In an action on a foreign judgment based upon an award under the Workmen’s Compensation Act of the foreign State, notice to the defendant of entry of such judgment held shown prima facie by the judgment order so reciting.

      6. Judgment, § 658

      —when failure to give notice of entry of foreign judgment does not invalidate it. In an action on a foreign judgment based upon an award under the Workmen’s Compensation Act, held that the failure to give notice of entry of judgment did not, under the laws of such State, invalidate such judgment, where such laws did not require it as a condition precedent to the entry of a judgment.
    7. Judgment, § 673*—when judgment in action on foreign judgment is in proper form. Judgment for a certain sum per week for a certain number of weeks in an action on a foreign judgment based upon an award under the Workmen’s Compensation Act of the foreign State, in accordance with" such foreign judgment, held in the usual and proper form, notwithstanding it was for money not yet accrued.
    8. Workmen's Compensation Act, § 13*—what questions will he reviewed. It is not within the province of the courts to pass upon the weight of sufficiency of the evidence upon which an award under the Workmen’s Compensation Act is based, but only upon questions of law presented.
    9. Judgment, § 576*—what faith and credit should he given foreign judgment. based on award under ’Workmen’s Compensation Act. A foreign judgment based upon an award under the Workmen’s Compensation Act of the foreign State is entitled to the same faith and credit as if it were a judgment in the ordinary common-law action, and should not be reversed because of the unusualness of the proceeding.
    Appeal from the Circuit Court of Cook county; the.Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Alden, Latham & Young, for appellant; T. A. Sheehan, of counsel.
    Bowe & Bowe, for appellees.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this appeal defendant challenges the validity of a judgment against it, rendered in the Circuit Court of this county in a suit brought upon a judgment rendered in the Superior Court of Lake county, Indiana, upon an award in a statutory action under the “Workmen’s Compensation Act of Indiana.” The judgment, both in our Circuit Court and in the Indiana court, was for the sum of $9.07 a week for a period of three hundred weeks beginning with September 10, 1915.

The facts of the accident which gave rise to the proceeding are not material to our consideration. Briefly stated, Albert Drtina, husband of plaintiff Filomena Drtina, and father of Rosie, on September 10, 1915, was killed in Indiana by a train while he was engaged in the business of selling and delivering goods for his employer, the defendant.

Did the Indiana court have jurisdiction of the defendant? Defendant has a store in Chicago, but sells goods in Indiana through its agent living in that State. After the death of Drtina his widow and child filed their petition, pursuant to the Indiana statute, with the Indiana Industrial Board, setting forth the nature of their claim. The agent of the defendant residing at Hammond, Indiana, was served with a copy of the petition and a notice of the arbitration hearing. The cause was called for hearing at the set time, at which plaintiffs were present represented by counsel. A special appearance was entered by defendant for the purpose of objecting to the jurisdiction of the board, upon the ground, as stated, of defective service, in that the agent of the defendant who had been served with the summons was not at the time of the service of such process in the employ of the defendant. No proof to sustain this objection was offered, and it was overruled. Thereupon the cause proceeded to hearing, which was participated in by the attorney for the defendant by his examining witnesses, objecting to testimony, etc. At the close of plaintiffs’ case defendant’s attorney asked for a continuance for the purpose of introducing testimony “upon the merits of the case.” A continuance was allowed, but defendant offered nothing in defense. Thereupon, on January 18, 1916, the board made an award for the plaintiffs and against the defendant.

Subsequently, on January 25, 1916, pursuant to the Indiana statute, defendant filed its application for a review of the award, setting forth among other things as grounds for review the alleged defective service of summons. After consideration of the points presented, an opinion was filed by the board in which these points were discussed and determined. The point of no jurisdiction was discussed and decided adversely to the claim of the defendant.

By section 61 of the Indiana Act provision is made for an appeal to the Appellate Court by either party to the dispute within thirty days from the date of the award, and that if such appeal is not taken the award upon the review is conclusive and binding as to all questions of fact. No appeal was taken. Subsequently the plaintiffs, proceeding under section 62 of the Act, filed a certified copy of the award of the board in the Superior Court of Lake county, Indiana, and judgment was rendered in accordance therewith. Said section does not provide for any service of summons prior to the rendition of the judgment, but contemplates that after judgment is entered the parties shall be notified. The section further provides that “such judgment shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though said judgment had been rendered in a suit duly heard and determined by said court.”

With this record before us, we hold that it appears that the defendant was within the jurisdiction of the court, for the following reasons: (1) The service of process in the first instance upon the agent of defendant was sufficient; (2) the defendant by its attorney appeared and took part in the trial; (3) the question of jurisdiction was raised and determined by the board on review; it is therefore res judicata (Chicago Title & Trust Co. v. National Storage Co., 260 Ill. 485); (4) the record shows as a fact notice to the defendant of the intention to apply to the Superior Court for a judgment upon the award; and (5) it is not required by the Indiana statute to give previous notice by summons or otherwise of application to the Circuit or Superior Court for judgment upon an award.

It is urged that we should declare section 62 of the Indiana statute unconstitutional. We must decline to do so. We would not be permitted under such circumstances to pass upon the constitutionality of one of the statutes of this State; it would follow by analogy that we are not permitted to pass upon the constitutionality of a statute of a sister State. No authority is pointed out to us so to do, and we shall assume the constitutionality of the act. In this connection it might be said that following the reasoning of our own Supreme Court in declaring our Workmen’s Compensation Act constitutional, we should hold the Indiana statute constitutional. Deibeikis v. Link Belt Co., 261 Ill. 454; Victor Chemical Works v. Industrial Board of Illinois, 274 Ill. 11.

It is urged that the defendant is not subject to the terms and provisions of the Indiana Workmen’s Compensation Act for the reason, as stated, that it is a corporation foreign to the State of Indiana and engaged in interstate commerce. This point was raised upon the review of the award by the Industrial Board of Indiana and, upon the evidence, adjudicated adversely to defendant; but even if it should be conceded that defendant was engaged in interstate commerce it does not follow that it is not subject to the Compensation Act. By section 19 of the Act it is provided that the Act “shall not apply to employees engaged in interstate or foreign commerce, nor to their employers, in case the laws of the United States provide for compensation or for liability for injury or death by accident of such employees.” By excluding employers or employees engaged in interstate commerce who are provided for by federal statute, the act includes those not so provided for. No federal compensation act has been presented to us, and we know of none which would cover the particular kind of employment of the deceased in this case. An act similar to this has been held to apply to those engaged in interstate commerce, the court saying:

“The foregoing shows an intention to legislate for all, including those engaged in interstate commerce, contrary to the contention made. It is further contended that, if the terms of the act include those engaged in interstate commerce, it is an interference with interstate commerce and cannot be enforced. Congress having in no way legislated in the premises * * * the State has the right to enact laws incidentally affecting interstate commerce. This act does no more.” Stoll v. Pacific Coast S. S. Co., 205 Fed. 169, 177.

We are in accord with what is said in this opinion.

It is objected by the defendant that the plaintiffs did not offer or introduce a full and complete transcript of a judgment of a foreign State. There was introduced upon the trial here a transcript of the judgment itself, duly authenticated, the Workmen’s Compensation Law of Indiana, and the procedure in the case of Drtina et al. v. Charles Tea Company, from which the judgment sued on resulted. We think this was sufficient. This was all that was necessary to establish a judgment of a foreign State in a proceeding of this kind. The argument of counsel for defendant as to the absence of any showing of process, pleadings, and the like, is predicated upon the ordinary rule in the ordinary case. Citations of decisions upon points of procedure in cases not brought under so-called workmen’s compensation laws are not in point.

There is no merit in the point that the Superior Court of Lake county did not notify the parties of the entry of judgment, in accordance with section 62. The judgment order itself recites notice issued to the defendant of said judgment, which is prima facie evidence of compliance with the statute. There is other evidence in the record of notice to the defendant. We do not see how the failure to give such notice would invalidate the judgment; it is not a condition precedent to the right of the court to enter the judgment. In any event, no special method is provided for conveying notice to the parties, and any evidence from which it would appear that they had notice of the same would seem to be sufficient.

Neither is there merit in the contention that it was error to enter judgment for money that had not yet accrued. This is the usual form of judgments under acts similar to this, and they have been sustained; we are shown no holding to the contrary.

In Parker-Washington Co. v. Industrial Board of Illinois, 274 Ill. 498, our Supreme Court said:

“The Workmen’s Compensation Act makes the decision of the Industrial Board, if it acts within its powers, in the absence of fraud, conclusive upon the courts. The Circuit Court and the Supreme Court, in reviewing a proceeding of this kind, can only review questions of law. Whether legal evidence is offered to support the decision of the board, where such evidence is properly preserved for review here, is a question of law, but if there is competent or legal evidence to support the decision of the board, it is not within the province of the courts to pass upon its weight or sufficiency.”

Tested by the laws of Indiana the judgment is valid, and there is no good reason for not according it the same faith and credit in Illinois as if it were a judgment in the ordinary common-law action. The judgment should not be reversed because of the unusualness of the proceeding; most everything was new once.

For the reasons above indicated the judgment is affirmed.

Affirmed.


author: Mr. Justice Dever

text:
    E. J. Johnson, Defendant in Error, v. Adolph W. Waldman, Plaintiff in Error.
    Gen. No. 22,499.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Rehearing denied March 5, 1917.
    Statement of the Case.
    Attachment by E. F. Johnson, plaintiff, against ¡Adolph W. Waldman, defendant. From a judgment for plaintiff, defendant brings error.
    William Schwemm and Barnard J. Baumer, for plaintiff in error.
    Charles H. Leech, for defendant in error.

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

   Mr. Justice Dever

delivered the opinion of the court.

Abstract of the Decision.

Appeal and error, § 866 —what does not constitute an abstract. A mere index of the proceedings in the trial court is not such abstract of the record as complies with Rule 18 of the Appellate Court rules, requiring a complete abstract of the record in a cause brought to the Appellate Court.


text:
    Benjamin Moore & Company, Plaintiff in Error, v. John W. Clark, Defendant in Error.
    Gen. No. 22,504.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Action by Benjamin Moore & Company, plaintiff, against John W. Clark, defendant, to recover the amount of an unpaid balance due under an assignment of part of the proceeds of the sale of stock of defendant. From a judgment for defendant, plaintiff brings a writ of error.
    The subject-matter of this action was adjudicated in an attachment suit in which plaintiff intervened, and recovered a judgment.in his favor and accepted the amount thereof.
    Elbert C. Ferguson, for plaintiff in error.
    Rice, Lowes, O’Neil & Richards, for defendant in error.

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

   Mr. Justice Dever

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 527 —when res judicata as to rights of all parties in attachment suit. A judgment in an attachment suit which adjudicates the rights of all parties properly before the court either by intervening petition or by valid service of process is binding upon all such parties and is res judicata of their rights in the subject-matter of the suit.

2. Estoppel, § 16*—when intervener in attachment suit may not claim that judgment was invalid. An intervener in an attachment suit who recovered a judgment therein in his favor and accepted the sum found due cannot claim in another action that such judgment was invalid.

3. Attachment, § 250*—when judgment is not erroneous in form.y Where the entry of a judgment in an attachment suit referring to the adjudication of the issue arising under an intervening petition was abbreviated but in such form that it was not at all difficult to determine its definite meaning, held that it was sufficient.


text:
    A. M. Chesbrough, Defendant in Error, v. Jacob Lanski, Plaintiff in Error.
    Gen. No. 22,509.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Rehearing denied March 5, 1917.
    Statement of the Case.
    Action by A. M. Chesbrough, plaintiff, against Jacob Lanski, defendant, to recover the price of a quantity of scrap iron delivered to the defendant under a contract of purchase. From a judgment for plaintiff for one hundred and ninety dollars, defendant brings error.

      Abstract of the Decision.
    1. Sales, § 138

      —when buyer cannot complain of refusal of seller to make delivery. Where the defendant offered to purchase scrap iron of the plaintiff at a certain price per ton, and to take all the plaintiff had at that price, and plaintiff delivered one carload of the iron but refused to deliver more until that was paid for, which the defendant refused to do unless the plaintiff would deliver all the remainder he had, and complained of the quality of the iron delivered, held, in an action to recover at the agreed price for the iron delivered, that the defendant was not warranted in refusing to pay for same and at the same time requesting further deliveries, or on the ground plaintiff had not delivered the remainder of the iron because the contract did not call for any specific quantity.
    2. Sales, § 324*—when presumed, that payment became due as of date of delivery of material. Where a contract for the purchase and delivery of a quantity of material contains no provision as to the time of payment, it will be presumed, in an action to recover the purchase price, that the payment became due as of the date of the delivery of the material.
    Samuels & Samuels, for plaintiff in error.
    Scott, Bancroft, Martin & Stephens, for defendant in error.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    W. C. Swigart, Appellant, v. Harry J. Stoops et al., Appellees.
    Gen. No. 22,513.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Suit by W. C. Swigart, complainant, against Harry J. Stoops, Frank McKey, trustee in bankruptcy of the estate of Harry J. Stoops, bankrupt, C. C. Mitchell and Bates Machine Company, a corporation, defendants, to foreclose upon two certificates of stock, of the par value of $5,000 each, in the defendant Bates Machine Company, held by the complainant as security for the payment of certain notes given by the bankrupt, to which the defendant C. C. Mitchell filed a cross-bill claiming ownership of the certificates of stock. From a decree in favor of the cross-complainant, complainant appeals.
    These certificates of stock were originally issued to the defendant C. C. Mitchell, who indorsed them in blank and delivered them to the defendant Harry J. Stoops, who gave Mitchell a trust receipt agreeing to return the certificates on or before a certain date. Stoops then delivered the certificates to complainant as collateral security for Stoops’ notes for an amount then due from him to complainant on other notes which were secured by a mortgage on certain lands, which mortgage complainant thereupon released. Stoops was thereafter adjudicated a bankrupt. He permitted a decree pro confesso to be entered against him in this suit.

      Abstract of the Decision.
    Corporations, § 152

      —when pledgee may foreclose security as against true owner. Where a party in good faith in the usual course of business for value took certain certificates of stock indorsed in blank as collateral security for certain notes evidencing a debt then due him from the party delivering to him such certificates, held that such party so taking such certificates would be entitled to maintain a bill to foreclose such security as against the true owner of the certificates who had indorsed and delivered them in trust to the party who had so pledged them, notwithstanding the latter’s conduct was grossly fraudulent as to the true owner.
    Harry A. Biossat, for appellant.
    Henry R. Baldwin, for appellees.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Frank Noonan, Plaintiff in Error. City of Chicago, Defendant in Error, v. Charles Delmar, Plaintiff in Error.
    Gen. No. 22,519.
    (Not to be reported in full.)
    Gen. No. 22,520.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Complaints by the City of Chicago, plaintiff, against Frank Noonan, defendant, and by the City of Chicago, plaintiff, against Charles Dehnar, defendant, charging violations of section 2012 of the Municipal Code of Chicago relating to disorderly conduct. From a judgment of conviction and fine of one hundred dollars in each case, defendants severally bring error, and the cases are consolidated.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 29

      —right of Appellate Court to take judicial notice of municipal ordinance. The Appellate Court is not required or authorized to take judicial notice of a municipal ordinance.
    2. Municipal corporations, § 867*—when judgment for violation of municipal ordinance should he affirmed. A judgment for violation of a municipal ordinance should he affirmed where no information as to the provisions of such ordinance is found in the record.
    3. Disorderly conduct, § 1*—when evidence sufficient to sustain conviction. The evidence held sufficient to sustain the findings and judgment of conviction, on a prosecution under section 2012 of the Municipal Code of Chicago, relating to disorderly conduct.
    Mullen & L’Amoreaux, for plaintiff in error.
    Harry B. Miller, for defendant in error.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Dan Baldino, trading as Dan Baldino & Company, Appellee, v. Hyman Kadison, Appellant.
    Gen. No. 22,604.
    (Not to be reported in full.)
    Abstract of the Decision.
    Brokers, § 37

      —when broker is not procuring cause of exchange of property. Where the plaintiff, after submitting to the defendant Bi proposition for trade of defendant’s real estate for certain other . real estate which the defendant rejected and informed the plaintiff he wanted cash for his property, took no further action in the matter and about ten months later a trade of such real estate was effected through another agent, who effected such trade by first procuring a purchaser for the real estate the defendant took in the .trade, held that the plaintiff was not the procuring cause of the trade, notwithstanding he first proposed it.
    Appeal from the Municipal Court of Chicago; the Hon. Chables N. Goodnow, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Action by Hyman Kadison, plaintiff, against Dan Baldino, trading as Dan Baldino & Company, defendant, to recover a commission on an exchange of real estate. From a judgment for plaintiff for $975, defendant appeals.
    Harry C. Kinne and Charles E. Carpenter, for appellant.
    Miles J. Devine and John T. Murray, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    General Fire Extinguisher Company, Appellant, v. William Seymour, Appellee.
    Gen. No. 22,613.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Rehearing denied March 5, 1917.
    Statement of the Case.
    Suit by General Fire Extinguisher Company, complainant, against William Seymour, - defendant, to establish a mechanic’s lien.- From a decree dismissing the bill for want of equity, complainant appeals.
    The following contract was entered into:
    “Chicago, May 16, 1912.
    “Mr. Wm. Seymour,
    5117 Hibbard Ave.,
    Chicago.
    “Dear Sir;
    It is understood and agreed that we are to furnish you with the number of heads required for sprinkler equipment in the building at 1501-11 Johnson street, at our regular price of $1.00 each, less 50% discount, making a net price to you' of 50(5 each; any air valves required at $1.75 each, which includes connections excepting labor for installing same, you to buy any other materials required. Or if we furnish such materials we are to bill same to you at our best mill prices. We will furnish the labor at $1.50 per hour for fitter and helper.
    “If we furnish any materials outside of the air valves and sprinklers you are to pay any freight, hauling or express charges involved in the shipments or hauling of said extra materials.
    “We will start immediately upon arrival of material and will prosecute the work with due diligence until completion.
    Abstract of the Decision.
    1. Contracts, § 377

      —when parol evidence is admissible. Parol testimony is admissible for the purpose of explaining circumstances attending the making of an ambiguous contract and the consideration therefor.
    2. Contracts, § 187*—when construction placed upon contract by parties may be considered in construing it. Where a contract is ambiguous in its language, the construction placed on it by the parties thereto may be looked to by the court in construing it.
    3. Building and construction contracts, § 11*—when contract as to sprinlcler system construed as providing for completed system. A certain contract between the complainant and the defendant as to a certain sprinkler system in defendant’s building, and the circumstances attending its execution and performance, held to show that the parties intended by such contract to complete such system, which was already begun at the time the contract was entered into, rather than the furnishing and installing of particular equipment.
    4. Mechanics’ liens, § 48*—when contractor is not entitled to lien. A contractor who abandons work on a contract for the furnishing and installation of a sprinkler system before it is completed in accordance with the contract is not entitled to a mechanic’s lien for work done and materials furnished.
    Very truly yours,
    General Fire Extinguisher Company,
    By A. J. Neracher, Dept. Agt.
    Accepted :
    William Seymour.”
    Cratty Bros. & Flatau and Charles Hudson, for appellant.
    John T. Richaros, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

5. Witnesses, § 144 —when evidence as to transaction with deceased agent of party to contract is inadmissible. Testimony as to ' a conversation had with a certain person, deceased at the time of trial, who at the time of the making of a certain contract and prior thereto was agent of one of the parties to such contract, held improperly admitted in a suit involving the construction and enforcement of the contract.

6. Appeal and error, § 1489*—when ' erroneous admission of evidence is harmless error. The erroneous admission of testimony as to a conversation with a deceased agent of one of the parties to a building and construction contract, in a suit to establish a mechanic’s lien, is harmless error where the evidence properly admitted is sufficient to sustain the judgment.


text:
    Alma Heizer, Defendant in Error, v. John W. Heizer, Plaintiff in Error.
    Gen. No. 22,620.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Suit by Alma, Heizer, complainant, against John W. Heizer, defendant, for divorce. From a decree fixing at $2,862.07 the amount of alimony due under the original decree granting a divorce and certain alimony, defendant brings error.
    G. A. Buresh, for plaintiff in error; Otto Wadewitz, of counsel.
    Otto Schusterman and F. A. Woodbury, for defendant in error.

      Abstract of the Decision.
    Divorce, § 106

      —when decree for alimony is too indefinite. A decree directing the payment as alimony in a suit for divorce of one-half of the husband’s weekly earnings, after deducting his car fare, labor union dues, life insurance and such other expenses as were necessarily connected with his - employment, held erroneous as being too indefinite and uncertain in amount to he enforceable, and the court had no jurisdiction to enter a subsequent order attempting to enforce it.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. J. E. Kelly, Plaintiff in Error.
    Gen. No. 22,635.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Action by the People of the State of Illinois, plaintiff, against J. E. Kelly, defendant, charging him with a violation of section 10 of the Motor Vehicle Law (J. & A. ¶ 10010). From a judgment of conviction on trial by the court without a jury and fine of five dollars, defendant brings error.
    Frank L. Childs and Beryl Howard Childs, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Alexander E. Arkin, of counsel.

      Abstract of the Decision.
    1. Automobiles and garages, § 1

      —what constitutes prima facie case in prosecution for driving at excessive speed. Where, on a prosecution under section 10 of the Motor Vehicle Law (J. & A. ¶ 10010), the defendant and his witnesses testified he was driving his automobile in a large city at a rate of speed of eighteen to twenty miles an hour, and a police officer testified defendant was driving at the rate of twenty-seven miles an hour, held that, disregarding the police officer’s testimony, a prima facie case for the prosecution was made out under the statute, providing that the speed of an automobile shall not be greater than is reasonable and proper, and that a speed through a residence portion of a city in excess of fifteen miles an hour shall be prima facie evidence that the speed was greater than was reasonable and proper.
    2. Automobiles and garages, § 1*—when evidence sufficient to sustain conviction for driving automobile at excessive speed. On a prosecution against an automobile owner under the Motor Vehicle Law, sec. 10 (J. & A. ¶ 10010), for driving his automobile on the streets of a large city at an unreasonable and improper speed, in which there was evidence that the traffic was crowded, and the testimony was conflicting as to how much the speed of the car exceeded fifteen miles per hour, evidence held sufficient to sustain a conviction.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Fitzpatrick Brothers, Appellant, v. John E. Culhane and M. H. Culhane, trading as Halo Chemical Company, Appellees.
    Gen. No. 22,641.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 19, 1917.
    Rehearing denied March 5, 1917.
    Statement of the Case.
    Suit by Fitzpatrick Brothers, a corporation, complainant, against John E. Culhane and M. II. Culhane, trading as Halo Chemical Company, defendants, for alleged infringement of complainant’s trade-mark rights. From a decree dismissing the bill, complainant appeals.
    Complainant was the manufacturer of a scouring powder designated by it as “Kitchen Klenzer,” which name it registered May 8, 1912, in the State of Hlinois, as a trade name, and also made application for the registration thereof in the United States Patent Office in 1908, and since. The bill charged the fraudulent •infringement of complainant’s rights in the premises by the sale by defendants of an article for like use under a name embodying the words “Kitchen Cleanser,” and that the defendants threatened to continue such practice, to complainant’s damage to the extent of more than $5,000, and prayed for accounting and injunction. Demurrer to the bill was overruled, and the defendant M. H. Culhane answered, denying all knowledge of the matters and things referred' to or any interest or connection with the business carried on by the defendant John E. Culhane, and the latter answered, denying complainant’s exclusive right in the words claimed by it or that complainant had been injured by reason of any act or omission on his part.
    Abstract of the Decision.
    1. Trade-marks and trade names, § 26

      —when suit properly dismissed as'to codefendant. Evidence held to show that one defendant had no connection with or interest in the business owned by his codefendant involved in a suit for infringement of a trade name, so as to authorize dismissal of the suit as to him.
    2. Trade-marks and trade names, § 26*—when evidence is insufficient to show use of particular name or of trade name of another. Evidence held insufficient to show the defendant had used the words “Kitchen Cleanser” as a trade name for the preparation .sold by him or used or copied the advertising matter, trade-mark, or trade name (“Kitchen Klenzer”) of complainant, in a suit for alleged infringement of complainant’s rights in such mark or name.
    3. Trade-marks and trade names, § 24*—what does not constitute infringement of trade name. The use of a trade name embodying the words “Kitchen Cleanser,” held to be no infringement upon the trade name “Kitchen Klenzer.”
    4. Trade-marks and trade names, § 5*—when name is not entitled to protection. The name “Kitchen Cleanser” is descriptive and not such as to exclude others from its use in business.
    Sentz & Jochum, for appellant.
    Hirschl & Hirschl, for appellees.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    James F. Bishop, Administrator, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 22,646.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 97

      —when pedestrian crossing street is guilty of contributory negligence which is proximate cause of his death. In an action to recover damages for death resulting from injuries by being struck by a street car, where it appeared the deceased was thirty-three years old, with good sight and hearing, that his view on the street was unobstructed, and that he attempted to cross the street rapidly midway between two intersecting streets in front of a car which was approaching at a high rate of speed, held that ordinary prudence should have warned the deceased that death or injury was almost certain to result to him under such circumstances, and that he was guilty of negligence which proximately contributed to his death and precluded recovery against the owner of such street car.

      Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Action by James F. Bishop, administrator of the estate of Carl O. Wiberg, deceased, plaintiff, against the Chicago Railways Company, defendant, to recover damages for the death of plaintiff’s intestate from injuries sustained by his being run into by defendant’s street car. From a judgment for defendant, plaintiff brings error.
    Edward F. Dunne, Jr., Daniel L. Madden and Roy C. Merrick, for plaintiff in error.
    P. L. McArdle and Frank L. Kriete, for defendant in error; W. W. Gurley and J. R. Guilliams, of counsel.

      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 Dever

delivered the opinion of the court.

2. Coroners, § 2 —what is power of jury. A coroner’s jury has no power to fix civil liability.

3. Evidence, § 232*—when part of coroner’s verdict is inadmissible. As a coroner’s jury has no power to fix civil liability, that part of a verdict admitted in evidence which stated that they found the accident causing the death of the deceased could have been avoided had the motorman of the car which struck and killed the deceased exercised greater care, held properly excluded, in an action to recover damages for such death.


author: Mr. Justice Holdom

text:
    Arthur Wagner Company, Defendant in Error, v. Gallaher & Speck, Plaintiff in Error.
    Gen. No. 22,587.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Action by Arthur Wagner Company, a corporation, plaintiff, against Gallaher & Speck, a corporation, defendant, to recover for the loss by defendant of a Bullock generator and switchboard for same belonging to the plaintiff and left in storage with the defendant for a stated period at an agreed compensation. From a judgment for plaintiff for six hundred dollars, defendant brings error.

      Abstract of the Decision.
    1. Corporations, § 325

      —when contract is incidental to powers of a corporation. A contract of bailment is incidental to the powers of a corporation bailee.
    2. Corporations, § 475*—when defense of ultra vires acts is not available. The defense of ultra vires acts of a corporation is not available in an action of tort against it.
    3. Municipal Court of Chicago, § 13*—when statement of claim is insufficient. A statement of claim against a bailee for loss of the goods hailed which stated the fair reasonable market value of the goods was not less than a certain amount, held to he a sufficient statement of value to support a pleading if evidence of the value were in the record, but insufficient in the absence of evidence.
    4. Municipal Court of Chicago, § 13*—what is effect of failure to deny averments of statement of claim. An undenied averment in a statement of claim of the value of property bailed stands as an admitted fact, under Rule 19 of the Municipal Court, in an action to recover from the bailee for the loss of the goods.
    The contract under which the articles were taken by the defendant provided that they were not to be removed without the written permission of the plaintiff. They were removed with the defendant’s consent without a written or verbal permission of the plaintiff, and were lost.
    Kerr & Kerr, for plaintiff in error.
    Pines & Newmann, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Barney Varney, Appellee, v. Ajax Forge Company, Appellant.
    Gen. No. 22,636.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Pleading, § 123

      —what is effect of failure to file replication to good plea. One plea stating a good defense to the whole declaration is, without a replication, tantamount to a confession of the verity of the matters pleaded in defense, entitling the defendant to a judgment on such plea.
    2. Appeal and error, § 420*—when objections to replication are made too late. The objection that a replication filed was not responsive to the plea and joined no issue thereon comes too late when first made on appeal.
    3. Pleading, § 470a*—when error in replication is cured by verdict. Error in a replication in that it is not responsive to the plea and joins no issue thereon is cured by verdict upon going to trial without objection or motion.

      Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Action by Barney Varney, plaintiff, against the Ajax Forge Company, defendant, to recover compensation under the Workmen’s Compensation Act of 1911 for personal injuries sustained by the plaintiff while in the defendant’s employ. From a judgment for plaintiff for $10,000, defendant appeals.
    Bulkley, More & Tallmadge, for appellant.
    Henry R. Rathbone, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

4. Workmen’s Compensation Act, § 6 —what constitutes a dangerous appliance. The fact that a serious injury was inflicted by a mechanical device appurtenant to a planer called a “dog,” and that soon after an accident, upon diligent search and inquiry, an efficient method of protection was discovered and applied, making such planers and dogs harmless, held to stamp such appliance as dangerous under section 3 of the Workmen’s Compensation Act of 1911 (J. & A. If 5451), in an action to recover compensation thereunder.

5. Master and servant, § 158*—what is duty of owner to protect dangerous machinery. Notwithstanding the powers and duties under the Safety Appliance Act of a' factory inspector, there is an absolute duty upon the owner of dangerous machinery to protect it, and his failure to do so would not be excused by the factory inspector’s failure to give notice to the owner.

6. Workmen’s Compensation Act, § 6*—what constitutes intentional omission of duty by employer. Where elective officers of a corporation owning a factory and having knowledge of dangerous machinery in such factory and of their responsibility as to protecting such machinery failed to remedy a dangerous condition existing as to same, held that such omission of duty on their part was intentional within section 3 of the Workmen’s Compensation Act of 1911 (J. & A. ¶ 5451).

7. Instructions, § 38*—when in language of statute not reversibly erroneous. Setting forth in an instruction the language of a statute involved, although discountenanced, held not to be reversible error.

8. Instructions, § 135*—when request for more specific instruction is necessary. Complaint that the term “proximate cause” used in an instruction was not sufficiently definite, held to be without force as an instruction should have been tendered upon such definition by the party complaining.


text:
    Sophia Karcher, Defendant in Error, v. Joseph F. Karcher, Plaintiff in Error.
    Gen. No. 22,643.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Divorce, § 22

      —when court has jurisdiction to adjudicate right of wife to alimony. No jurisdiction to award alimony in a decree for divorce exists on service of summons against the husband by publication, but where the decree for divorce in such suit reserved the question of alimony for the future consideration of the court, and the court thereafter by service of process or entry of appearance secured jurisdiction of the husband in personam, held that the court might proceed to adjudicate the right of the wife to alimony and in the usual way to enforce its payment at a term subsequent to that at which the decree of divorce was entered.
    Error to the Superior Court of Cook county; the Hon. Charles M. Foell and Hon. John M. O’Connor, Judges, presiding. Heard in this court at the October term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Suit by Sophia Karcher, complainant, against Joseph F. Karcher, defendant, for divorce and alimony and solicitor’s fees. From a decree for alimony rendered at a term of the court subsequent to the term at which a decree of divorce was rendered, defendant brings error.
    Bennison F. Bartel, for plaintiff in error.
    William C. Hartray and C. Helmer Johnson, for defendant in error; Arthur H. Chetlain, of counsel.

      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 Holdom

delivered the opinion of the court.

2. Divorce, § 64 —when defendant estopped from questioning jurisdictional validity of alimony decree. Where a defendant in a suit for divorce in which a decree for divorce was entered on service by publication was at a subsequent term served with process, on a petition for alimony, and after a decree awarding alimony entered his appearance and secured a reduction thereof, held that he would be estopped from disputing the jurisdictional validity of such alimony decree.


text:
    Porter, Fishback & Company, Appellee, v. Ralph L. Peck, Appellant.
    Gen. No. 22,655.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Wiluam N. Gemmill, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Rehearing denied March 5, 1917.
    Statement of the Case.
    Action by Porter, Fishback and Company, plaintiff, against Ralph L. Peck, defendant, to recover for rent and other charges due under a written lease. From a judgment for plaintiff for $841.70, defendant appeals.
    Plaintiff’s statement of claim was for $1,044.22 alleged to be due. Defendant claimed in his affidavit of defense procurement of the lease by fraud and false representations and payment of rent claimed as due, and in an amended statement of set-off $757.52 for moneys advanced and $975 for legal services performed for plaintiff.

      Abstract of the Decision.
    1. Landlord and tenant, § 311

      —what is not proper claim, of set-off in action for rent. A claim of set-off for moneys advanced and legal services performed presents no triable issue in an action for rent due under a written lease as a claim arising out of the, contract sued on or as a claim resting in liquidated damages, and should on motion be stricken from the files.
    2. Pleading, § 152*—what need not be included in affidavit of merits. Where a claim of set-off presented no triable issue and might on motion have been stricken from the files, held that the plaintiff would be entitled to contest such set-off on such ground, notwithstanding he had not in his affidavit of merits thereto raised the question.
    Rupert J. Barry, for appellant.
    Iles, O’Connor, Eberhardt & Kesler, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    H. H. Evans et al., Illinois Surety Company and James S. Hopkins, Receiver of Illinois Surety Company, Appellants, v. Rufus M. Potts, Superintendent of Insurance of State of Illinois, Appellee.
    Gen. No. 22,664.
    Appeal and error, § 275*—when interlocutory order is not appeal-able. The right to an appeal is strictly statutory, and an interlocutory order granting the prayer of the State Superintendent of Insurance to intervene in a suit by the stockholders of an insurance company to enjoin the company from further prosecuting its business, the appointment of a receiver, etc., is not appealable, either under section 123, ch. 110, Hurd’s Rev. St. (J. & A. ¶ 8661), relating to appeals from interlocutory orders concerning injunctions and receivers, or any other statute, and an appeal from such order should, on motion, he dismissed.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Appeal dismissed.
    Opinion filed February 19, 1917.
    A. J. Hopkins, Shepard McCormick, Thomason, Kirkland & Patterson and H. C. Davis, for appellants.
    P. J. Lucey and Ryan, Condon & Livingston, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

Complainants filed a bill as stockholders of the Hlinois Surety Company to enjoin it from further prosecuting its business, asking for the appointment of a-receiver, the winding up of its affairs, etc. After certain proceedings had been had and an order entered appointing James S. Hopkins receiver of the Surety Company, Rufus M. Potts, as Superintendent of Insurance of the State of Illinois, filed an intervening petition in which, inter alia, he prayed to be admitted as a party defendant in the cause, setting forth that he is vitally interested in the proceedings and that he ought to be permitted to be a party defendant thereto so as to protect the trust funds held by the Surety Company for the protection of its policy holders, creditors and the public, and charging that the parties to the bill and their counsel had fraudulently entered into prearrangements to have one of their number appointed receiver without giving the insurance superintendent or any other public officer or any creditor notice of the proceedings; that by reason thereof the State, policy holders and creditors have had no opportunity afforded them of protecting themselves, and that as a result their interests have not been protected.

Upon a hearing of this intervening petition the chancellor granted its prayer and permitted Potts, as superintendent of insurance, to file his petition and to become a party defendant, and ruled all the parties to plead, answer or demur to such intervening petition within forty days. From this order complainants prayed, were allowed and have perfected this appeal.

This case was lately before the court on an appeal from an interlocutory order appointing a receiver for the Illinois Surety Company. This appeal was by the Attorney General. The Attorney General had been admitted as a defendant into the case by intervening petition in the same way as was here appellee Potts, superintendent of insurance. While this court reviewed and affirmed the decision of the chancellor in appointing a receiver, we refused to review the order also embraced in the appeal allowing the Attorney General to become a party defendant. This was done upon the theory that the order allowing the Attorney General to become a party defendant was interlocutory and not appealable. Such is the nature of the order now before us allowing the superintendent of insurance to become a party defendant.

There is no provision in our statutes for such an appeal. See the opinion of Mr. Presiding Justice McSurely in the Appeal of the Attorney General case, 201 Ill. App. 578.

The right to an appeal is strictly statutory and the order appealed from being an interlocutory order, however desirable it might be to determine at the threshold of the case the right of the superintendent of insurance to become a party defendant, the statute will not permit the court to review such an interlocutory order.

This order does not come within the statute allowing interlocutory appeals, which is limited to “granting an injunction, or overruling a motion to dissolve the same, or enlarging the scope of an injunction order, or appointing a receiver, or giving other or further powers or property to a receiver already appointed.” Section 123, ch. 110, Hurd’s Rev. St. (J. & A. ¶ 8661).

Appellee filed a motion to dismiss the appeal on the ground that the order appealed from is not final but interlocutory, and therefore not reviewable at this time in this way, which motion was reserved to the hearing of the cause. This motion must be allowed. This is not the time to review the order appealed from. Whenever the cause reaches the stage where a final appealable order is entered, then the right of the court to permit the intervening petitioner to become a party defendant will be open to review as well as all subsequent orders affecting the status of the intervener defendant. It will therefore be the part of wisdom to proceed cautiously in any attempt which may be made to divert the funds or assets of the Surety Company into the hands of the intervener defendant, for should such action of the court be subsequently deemed improvident and without jurisdictional right, the receiver paying and the defendant receiving any such funds or assets may upon review be compelled to restore such diverted funds or assets to the Surety Company.

The motion to dismiss is allowed and the appeal is dismissed.

Appeal dismissed.


text:
    The Midland Press, Appellant, v. F. E. Compton & Company et al., Appellees.
    Gen. No. 22,674.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Statement of the Case.
    Bill for an injunction by the Midland Press, a corporation, complainant, against F. E. Compton & Company, a corporation, Frank E. Compton, E. C. McBride and P. A. Miller, defendants. From a decree dismissing the bill and the amended bill, on demurrer, for want of equity, complainant appeals.
    The original bill based complainant’s right to injunctional relief upon a certain written contract between the complainant and certain codefendants. After general and special demurrers to such bill were sustained, complainant by leave amended the bill, averring the contract between the parties in dispute rested “partly in writing and partly orally.” The contract called for the personal services of the codefendants and expired by afflux of time January 1,1917.
    Alden, Latham & Young, for appellant; T. A. Sheehan, of counsel.
    Gregory & McNab and Wilkerson, Cassels & Potter, for appellees.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1170 —when injunctive relief not granted. Where a contract for personal services expired by afflux of time prior to opinion filed by the Appellate Court on appeal in a suit to enjoin certain defendants from inducing the parties whose services were so contracted for from breaking such contract, held that it would be a work of supererogation for the Appellate Court to grant such injunction.

2. Injunction, § 140*—when injunctive relief will not he granted. A court of equity will not enjoin the publication of either a slander or a libel, nor grant relief by injunctional proceeding for torts committed in the past.

3. Contracts, § 4*—what constitutes an oral contract. A contract partly in writing and partly oral is by legal interpretation an oral contract.

4. Contracts, § 4*—when contract deemed to he in writing. A contract is not in writing unless the parties thereto as well as its terms and provisions can be ascertained from the contract itself.

5. Contracts, § 148*—when contract for services is void as against public policy and in restraint of trade. A contract for the personal services in the sale of certain goods, held defective for want of mutuality of remedy and of obligation, and its restrictive covenant as to territory without limitation void as against public policy and in restraint of trade.


text:
    Mabel Frances Paulin, Appellee, v. American Surety Company of New York, Appellant.
    Gen. No. 22,680.
    1. Appeal and error, § 198

      —what is power of Appellate Court to pass upon constitutional questions. The Appellate Court has no power to pass upon constitutional questions involving the validity of statutes.
    2. Appeal and error, § 1718*—when constitutional questions are waived. Constitutional questions are waived by an appeal to the Appellate Court.
    3. Appeal and error—when surety on stay bond is not entitled to notice of amendment of judgment. Where a judgment upon which a stay bond was issued was, on writ of error, reversed for the reason that the record failed to show the entry of a default, while such judgment recited that it was entered upon a default of the defendant, and subsequently an order of default was entered in the trial court nunc pro tunc based upon the clerk’s minute book showing that such an order had originally been made by the court but not entered by the misprision of the clerk, and thereupon such judgment was affirmed by the Appellate Court, held in an action upon such bond against the surety therein, that such surety was not entitled to notice of such amendment of the judgment, and was bound thereby, and that the judgment recited in the bond was in no way affected by the recording of the order of default which merely corrected the record thereof as of the day when such order was made by the court.
    4. Judgment, § 270*—when omissions may be supplied by nunc pro tunc order. Where a judgment recited it was by default and the record failed to show the entry of any order of default, but the clerk’s minute book showed the court had ordered default to be entered, held that the court had jurisdiction at any time to supply the omission of the clerk by a nunc pro tunc order.
    5. Appeal and error—when liability of surety on stay bond is not affected by nunc pro tunc order. The liability of a surety in a stay bond is not affected by a nunc pro tunc order properly made as to entry of an order of default upon which the judgment in question was entered.
    6. Appeal and error, § 1853*—what is binding effect of stay bond. A stay bond is binding either as a statutory bond or as an obligation by force of the common law.

      7. Appeal and error—what constitutes a delivery of a stay bond to adverse party. The delivery of a stay bond to the clerk of court is a sufficient delivery to the party to the suit wherein such bond was given and in whose favor the judgment therein was rendered.
    8. Appeal and error—what is nature of stay bond. A stay bond is a contract between the parties by which, and all its conditions, they are hound and their rights are determined.
    9. Appeal and error, § 1859

      —when parties are estopped by stay bond from, disputing existence or validity of judgment. A stay bond received in evidence in an action based thereon establishes the existence of the judgment recited in it, and all parties to it are estopped from disputing the existence or validity of such judgment.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed February 19, 1917.
    Rehearing denied March 5, 1917.
    Rosenthal, Kurz & Houlihan and J. L. Moehle, for appellant; Frank Michels and Sidney Levy, of counsel.
    Joshua R. H. Potts, for appellee.

      Sea 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 Holdom

delivered the opinion of the court.

This is an action upon a stay bond in the Municipal Court, in which bond the defendant was surety. The title of the suit in the trial court was the plaintiff here, as plaintiff there, and one William A. Paulin as defendant. The judgment in that suit, as recited in the bond in this suit, is $747 and costs. On review by this court that judgment was affirmed. The judgment before us for review on this appeal is for $867.23.

It is not in dispute that the bond in suit was given or that the judgment which its giving operated to suspend was affirmed by this court. The defenses interposed by defendant were on motion stricken and the judgment appealed from entered as in cases of default.

Defendant urges as a defense the unconstitutionality of section 23 of the Municipal Court Act (J. & A. A ¶ 3335), under which the bond was said to be given. We shall pay no attention to this contention, as this court is not concerned with constitutional questions involving the validity of statutes. The Supreme Court is the tribunal whose jurisdiction permits it to decide such constitutional questions. We have no such power. Furthermore, an appeal to this court has been held to operate as a waiver of constitutional questions argued.

Defendant defends on the theory that the judgment in which the bond in controversy was given was reversed by this court, and that, consequently, the condition of the bond that defendant should prosecute his writ of error with effect was satisfied. The difficulty with such contention lies in the fact that by subsequent proceedings in this court that judgment was abrogated and another and final judgment of affirmance entered in its stead; and further, that the judgment of affirmance remains in full force, undisturbed by appeal, writs of error, or certiorari, and unaffected by any other review process. It is the final and operative judgment of this court. The judgment of reversal subsequently annulled was placed upon the condition of the record as it then existed, which failed to show the entry of any order of default, while the judgment was recited to have been entered upon the default of defendant. It was subsequently made to appear that the failure of the record to show an order of default arose through the misprision of the clerk in failing to spread upon the record of the court the order of default from the minute book. By a proceeding in the trial court 'in due form, an order of default was entered of record wunc pro tunc as of the day the clerk’s minute book showed that the court had ordered the default of the defendant to be entered of record. This was done without notice to the surety company, the defendant in the instant suit, and of this defendant in this suit complains.

It is sufficient answer to this contention to say that defendant was not entitled to any notice of the action of the court in amending its record to conform to the fact, as it was not a party to that cause. Such correction was in the interest of justice, against which no protest of defendant could have been of any avail. Justice is not so easily thwarted in this jurisdiction. It may also be remarked that the recording of the order of default in no way affected the judgment recited in the bond. That judgment remained the same from the beginning, and the entry of the nunc pro tunc order of default when made had the effect in law to correct the record as of the day when the court ordered the default of the defendant to be entered, but which failed of entry through the failure of the clerk to do his duty in this regard. However, defendant urges in argument that it became surety on the condition of the record which disclosed an error in procedure, which, if not corrected, would invalidate the judgment and relieve defendant from liability as surety; that such knowledge was the reason which induced defendant to execute the bond as surety and that but for such defect defendant would not have executed the bond. However, the record as it then appeared bound the parties. Conceding the plausibility of this contention, how does it affect defendant’s liability?

It seems to this court that defendant was bound not by a part of the record but by all of it. The judgment recited that it was by default, and an examination of the minute book kept by the clerk of the court would have disclosed the fact that the court had ordered the defendant’s default to be entered of record, and that notwithstanding the failure of the clerk to transcribe that order of record, the court still had jurisdiction at any time to supply the omission of the clerk by a nunc pro time order, as was eventually done.

There is no merit in the contentions of defendant. The liability is that nominated in the bond, which in no sense, either in law or fact, has been enlarged or changed since it was entered into. As said by this court in the suit in which the bond was given-—Paulin v. Paulin, 195 111. App. 350:

‘ ‘ The nunc pro tunc order in controversy in no manner added anything to the judgment of the court as originally directed, but simply corrected the error of the clerk in not transcribing from the minute book the judgment which the court had, as appears by that minute book, directed to be entered.”

The bond in suit is binding either as a statutory bond or as an obligation by force of the common law. Portis v. Illinois Surety Co., 176 Ill. App. 590. The delivery of the bond to the clerk of the Municipal Court was in law a sufficient delivery to the plaintiff in the action in which it was given. A bond of the nature of the one before us is a contract between the parties, by which and all its conditions the parties are bound and their rights must be determined. Mystic Workers of the World v. United States Fidelity & Guaranty Co., 152 Ill. App. 223.

The bond when received in evidence established the existence of the judgment recited in it, from disputing which all the parties to the bond were estopped. As said in McCarthy v. Alphons Custodis Chimney Const. Co., 219 Ill. 616:

“The obligor and sureties are alike estopped, when sued upon an appeal bond, to set up defenses which contradict the recitals of the bond, and where the bond recites the existence of the judgment the obligor and sureties are estopped to deny the existence of the judgment or that it was valid.” Meserve v. Clark, 115 Ill. 580.

The defenses interposed were unavailing and were properly stricken from the files, and there being no errors in this record which justify a reversal of the judgment of the Municipal Court, it is affirmed.

Affirmed.


author: Mr. Presiding Justice O’Connor

text:
    Anna Hiller, Plaintiff in Error, v. Adolph Holman et al., Defendants in Error.
    Gen. No. 21,761.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Equity, § 498

      —when decree based upon master's report is erroneous. Where a master in chancery to whom a suit was referred by the court to take proofs and report his conclusions upon the law and the facts, reported that a certain trust deed in question was not an equitable lien upon the premises involved and recommended that it be set aside and declared null and void, and his report was approved, held that a decree failing to set aside such deed was erroneous.

      Error to the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed March 8, 1917.
    Rehearing denied March 19, 1917.
    Statement of the Case.
    Suit by Anna Hiller, complainant, against Adolph Holman and others, defendants, for accounting and cancellation of two trust deeds. From a decree approving an account stated by the master and cancel- ' ing one of the deeds, complainant brings error.
    William Schwemm and Austin J. Booney, for plaintiff in error.
    Stedman & Soelke, for defendants in error.

      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 numbers

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

2. Equity, § 427 —when question of correctness of master's report and merits of case may not he considered. Where the master’s report in a suit was approved, on motion of the party excepting thereto, held that the correctness of such report and the merits of the case would not be proper subjects for argument on writ of error for failure of the decree rendered, on such report to conform thereto.


text:
    Daniel A. Levy et al., trading as Levy, Tyrrell & Devenish, Defendants in Error, v. Caroline Payne, Plaintiff in Error.
    Gen. No. 21,788.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus P. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 8, 1917.
    Rehearing denied March 19, 1917.
    Statement of the Case.
    Attachment by Daniel A. Levy, John F. Tyrrell and William H. Devenish, trading as Levy, Tyrrell & Devenish, plaintiffs, against Caroline Payne, defendant, to recover $6,075 for moneys advanced and services rendered as attorneys. From a judgment for plaintiffs for the amount claimed, defendant brings error.
    Thomas E. Swanson, for plaintiff in error.
    Jay Warner, for defendants in error.

      Abstract of the Decision.
    1. Continuance, § 1

      —when motion for improperly denied in attachment suit. Where an affidavit for attachment stated that the action was upon an account stated for moneys due and owing agreed upon a certain date and the defendant in her affidavit of merits denied the claim in toto, and certain answers to interrogatories "propounded by the defendant were, without her fault, misfiled and not found until four or five days before the day set for trial, which was too late to permit the taking of her deposition or that of her counsel in New York City, she being also a resident of that city, held that the affidavit for attachment did not sufficiently inform the defendant as to the nature of plaintiff’s claim, and denial of defendant’s motion for a continuance based upon affidavits showing such facts was an abuse of discretion and continuance should have been granted.
    2. Municipal Court of Chicago, § 13*—what constitutes a statement of claim. An affidavit of attachment stating that plaintiff's-action was based upon an account stated for moneys due and owing agreed upon a certain date, held to be a statement of claim under the Municipal Court Act.
    3. Municipal Court of Chicago, § 4"—when county judge may preside. A county judge is authorized to hold court in the Municipal Court of Chicago and to try a case therein involving, more than $1,000, notwithstanding the jurisdiction of the County Court of which he is judge is limited to that amount.
    4. Appeal and error, § 370*—when contention may not he urged on appeal. The contention that a claim sued on had been assigned prior to suit to another than the plaintiff cannot be urged for the first time on review.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

__