author: Mr. Justice Graves

text:
    Burgess Stock Farm, Appellee, v. Percheron Society of America, Appellant.
    1. Cobporations, § 329

      —when may refuse to enter into contract. The registry in the books of a corporation, which is engaged in the private business of keeping records of pedigrees of imported horses and issuing certificates of such pedigrees on request, of a horse, is a matter of contract which the corporation can refuse, in its discretion, to enter into the same as an individual, and it may not be required by mandamus to enter into such a contract.
    2. Corporations, § 170

      —when stockholder may not compel corporation to enter into contract. The fact that a partnership, engaged in the business of dealing in horses and other live stock, owned a share of stock in a corporation engaged in the private business of keeping records of pedigrees of imported horses and issuing certificates of such pedigrees, and, when a corporation was formed by the members of the partnership, they caused the share of stock to be ■ transferred to the latter corporation on the books of the former corporation, did not give such latter corporation any greater right to compel such former corporation by mandamus to enter into a contract with it than it would have had if it had not owned the share of stock.
    Appeal from the Circuit Court of McLean county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed July 15, 1918.
    Rehearing denied October 2, 1918.
    Winston, Payne, Strawn & Shaw and Bracken & Young, for appellant; Silas H. Strawn, John D. Black, William K. Bracken and Charles J. McFadden, of counsel.
    Barnes, Magoon & Black, for appellee; Fred A. Bangs and Sterling & Whitmore, of counsel.

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

   Mr. Justice Graves

delivered the opinion of the court.

The following facts are either admittedly true or are established by a preponderance of competent evidence introduced at the trial of the case: The parties to this suit are both private corporations organized under the laws of the State of Illinois. Appellant’s business was to keep the records of the pedigrees of imported Percheron horses and to issue certificates of such pedigrees on request. From this business it derived a substantial part of its income. The success of its business depended largely on the correctness of these records and certificates. Appellee was in the business of dealing in horses and other live stock. The market value of certain horses handled by it depended in a considerable degree upon the pedigree of such horses. The records kept by appellant were recognized by horsemen as the best, if not the only, source of reliable information in this country as to the pedigrees of Percheron horses. Forty-nine fiftieths of the capital stock of appellee was owned by Robert Burgess and his son Charles Burgess, who prior to the formation of appellee corporation were under the name of Robert Burgess & Son, partners, engaged in the same business appellee is now engaged in. The other one-fiftieth of the capital stock was in the name of one I. F. Douglas, who paid nothing for it. The stock of appellee was paid for chiefly, if not wholly, by turning over to the corporation the property formerly owned and managed by Robert Burgess & Son. That firm while doing business under that name were owners of a small amount of stock in appellant corporation and during that time had sought to procure certain false registrations of pedigrees to be made on the books of appellant, and had sold at least one horse that was bom in this country under a certificate of registration of an imported horse. For such irregularities appellant refused to permit the registration of any of the American bred horses whose registration required the signature of Robert Burgess & Son, or either of them, regardless of who owned the animal. The justice of the decision of appellant in refusing the registration of all American bred animals for Robert Burgess or Robert Burgess & Son was recognized by the firm, and Robert Burgess expressed his satisfaction with it, and told its board of directors at Des Moines that he was satisfied with it, and that the application in question should not have been made. The firm of Burgess & Son never applied for further registration of American bred animals. Later appellee corporation was formed for the purpose, as the witness McCumber testified Robert Burgess told him, of attempting to evade the rule of appellant against registering the pedigrees of horses for Burgess & Son. After the formation of the corporation known as the “Burgess Stock Farm” a resolution was passed by appellant to the effect that the same rule should be applied to that corporation as had been applied to the partnership of Burgess & Son in regard to the registration of stock, namely, that it would register no stock for such corporation that required the signature of either Robert or Charles Burgess, and appellant has consistently refused and still refuses to register such stock. In September, 1913, appellee made application for the registration in the books of appellant of an American bred colt called “Narcissa,” which appellant refused to do, and gave as a reason for such refusal that its pedigree committee had made an order that all applications of this character made by appellee should be rejected, and that the directors of appellant had taken the position that the rules theretofore applied to Burgess & Son should be applied to the “Burgess Stock Farm.” Appellee then filed its petition for a writ of mandamus to conrpel appellant to register the colt “Narcissa” in its books. A trial was had before a jury and at the conclusion of all the evidence the court-struck much of the evidence from the record and some of the pleadings from.the files, and directed a verdict for the petitioner, and the writ of mandamus was .ordered, commanding appellant and all its officers to register the pedigree of the colt in question.

Appellant is a corporation organized for pecuniary profit. Its avowed business, from which it derived its profits, was “the preservation, recording and certifying of pedigrees of Perdieron horses imported from France or bred in America. ’ ’ The success of its business depends upon the accuracy of its records. Its business is its own private affair. There is nothing in its charter, rules, by-laws or business to indicate that it partakes in any degree of'a public or quasi public business. It transacted its business through its officers and directors acting as agents of the corporation. The transactions between it and its customers were contractual, and depend upon the voluntary meeting of minds of the contracting parties. If its board of directors did not consider it advantageous to deal with any customer, it had the undoubted right to decline to do so. The registry in its books of the pedigree of an animal was a matter of contract and was not a legal duty. It did not claim to have or keep a complete register of the pedigrees of all the Percheron horses in America, but did claim that such pedigrees as it did have registered were true and correct. The attempts of Burgess & Son, while doing business as a partnership, to procure the registration of incorrect pedigrees by appellant had been so persistent as to warrant appellant in suspecting that the same were not accidental but were intentional and fraudulent. Appellant is in no different situation with regard to its right to choose those with whom it will do business than a private individual would be. The right to "eon-tract or not to contract is, within limitations not affecting this case, a personal one that the individual may exercise his discretion about and that cannot be controlled by mandamus. People v. Holstein-Friesian Ass’n, 41 Hun (N. Y.) 439; Great Atlantic & Pacific Tea Co. v. Cream of Wheat Co., 224 Fed. 566; Standard Oil Co. of New Jersey v. United States, 221 U. S. 1; Greater New York Film Rental Co. v. Biograph Co., 203 Fed. 39; In re Grice, 79 Fed. 627. And Cooley in his work on Torts says (page 278): “It is a part of every man’s civil rights that he be at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice or malice.”

The fact that Burgess & Son owned a share of stock in appellant corporation and when appellee corporation was formed Burgess & Son caused that share of stock to be transferred to it on the books of appellant does not give to appellee any greater right to compel appellant to enter into a contract with it than it would have had if it had not owned the share of stock. People v. Dennett, 276 Ill. 43-46.

In the view we take of this case, it is not necessary to determine whether charges were made against Burgess & Son or Burgess Stock Farm in exact conformity with the rules or by-laws of appellant, or whether the sins of Burgess & Son, the partnership, can be visited upon Burgess Stock Farm, the corporation. What we do hold is that appellant is a private corporation with the same power to transact its business as a private individual, and that it may contract or refuse to contract in regard to any specific matter not ultra vires its corporate powers the same as' an individual, and that it cannot be compelled by mandamus to make any contract or to exercise its discretion in regard to making contracts in any particular way. The record shows, however, not only that the order or rule of appellant’s board of directors, by which it was* determined that it would no longer register the pedigrees of animals for Burgess & Son, was made in substantial compliance with its constitution, rules and by-laws, but that Burgess & Son recognized and admitted the justice and binding force of the order and the truth of the facts upon which it was based, and that they have consistently acquiesced in the order ever since it was promulgated. The record also further conclusively shows that the corporation, Burgess Stock Farm, was in reality Burgess & Son under a different name, and that it was formed by Burgess & Son with the hope of escaping the consequences of the order of appellant by which it refused to register the pedigrees of their horses. The change of the style of the business organization from a partnership to a corporation did not change the characteristics of the individuals who owned and controlled the business. There is no regenerating influence arising from the process of organizing corporations that has so far been recognized as tending to make men reliable who were theretofore not so. The extension of the rule to the corporation was clearly within the rights of appellant.

It follows that appellee has failed to show any right to the writ of mandamus prayed for. The judgment of the Circuit Court is reversed and the cause is remanded to that court with directions to deny the writ.

Reversed cmd remanded with directions.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Board of Education of Township High School, Appellee, v. T. E. McCaskill and Emma McCaskill, Appellants.
    1. Schools and school districts, § 175

      —when residence in township other than that in which high school is situated shown. In an action by a school district to recover high school tuition for two minor children of persons claimed to be residents of another township, evidence held sufficient to sustain a finding that defendants were residents of the township other than that in which the high school was situated and that the children only temporarily stayed with their grandmother during the school year in a house owned by defendants in the town in which the high school was situated.
    2. Schools and school districts, § 48

      —who may discharge duties of directors of schools for school districts. Boards of education of township high schools are empowered to discharge the duties of directors of schools for school districts.
    3. Schools and school districts, § 184

      —when parents liable for tuition of children attending high school in another district. Under section 122 of the School Act (J. & A. ¶ 10143), providing that, where no high school is maintained, graduates of the eighth grade in any school' district shall, upon payment of tuition, be admitted to the high school of any district in the county in which such pupils reside, by and with the consent of the school board where such high school is located, and that “the tuition in case the parent or guardian is unable to pay shall be paid by the school board of the district in which such pupils reside, from the funds of the district,” parents are liable for the tuition of their children where they are able to pay.
    4. Schools and school districts, § 184

      —inapplicability of section 121 of School Act to transfer of pupils from common school to high school in another district. Section 121 of the School Act (J. & A. ¶ 10142), relating to the transfer of pupils from one district to another upon the written consent of a majority of the directors of each district, has reference only to the attendance of children in a common school district in a district other than that of their residence, by and with the consent of the directors of the districts, and provides for payment of tuition out of the funds of the district of their residence, and applies only to common schools and not to high schools.
    Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 15, 1918.

      R. C. Need, for appellants.
    W. B. McBride, for appellee.

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

   Per Curiam.

This is an appeal by T. E. McCaskill and Emma McCaskill from a judgment for $162 rendered against them in favor of the Board of Education of Township High School, Township 13 North, Range 2 West, Christian county, Illinois, known as the Taylorville High School, for tuition for two minor children of appellants for the school year beginning in the fall of 1912 and ending in the spring of 1913, at $4 per month each, and for the year beginning in the fall of 1913 and ending in the spring of 1914 at $5 per month each.

Prior to the fall of 1911, appellants lived on a farm in Locust township in Christian county and sent their children to the Taylorville High School, and paid tuition regularly. In the fall of 1911, appellants bought a house in Taylorville and claim to have lived in that city from the fall of 1912 until the following spring when they moved back to the.farm, without retaining a room in the house in town; they also claim to have lived in town the next winter and moved back to their farm in the spring of 1914. During these 2 school years, two of their minor children attended the high school in Taylorville withqut any tuition being paid, and in the spring of 1914 appellants sold their property in Taylorville. During those 2 years they paid all their personal taxes in Locust township. Appellant T. E. McCaskill testified that he ate his meals and slept in Locust township practically all that time; that he sold his town property in April or May, 1914; that his mother occupied the house the 2 years before he sold it; that she lived there and kept roomers during the time he lived there and he had nothing to do with the house during those 2 years, “except in the payment of taxes and all special assessments and such as that, I didn’t occupy it.” The following questions and answers are quoted from his testimony: Q. “Where did your wife stay from the fall of 1912 on?” A. “She stayed with the family of course.” Q. “And where was that?” A. “In Locust Township.” Q. “And continued to stay there until the spring of 1914?” A. “Yes, sir.” It was a question of fact as to whether appellants were bona fide residents of Taylorville or their residence was on their farm. The evidence of appellants sustains the finding that they, with their children, were residents of Locust township and not of the township in which the Taylorville High School is situated, and- that the children only stayed with their grandmother in Taylorville temporarily during the school year in a house owned by appellants.

The appellants submitted one proposition of law, viz., that parents, whose children attend the high school of a township which maintains a high school, in the absence of proof of an express contract, cannot, be held liable for the tuition of their children, which the court refused. This proposition has no reference to the residence or domicile of appellants or their children, which is the only issue in the case.

Boards of education of township high schools are empowered to discharge the duties of directors of schools for school districts (People v. Cowen, 283 Ill. 308), and section 122 of the School Act (J. & A. ¶ 10143) provides that,- where no high school is maintained, graduates of the eighth grade in any school district shall, upon payment of tuition, be admitted to the high school of any district in the county in which such pupils reside, by and with the consent of the school board where such high school-is located, and that “the tuition in case the parent or guardian is unable to pay shall be paid by the school board of the district in which such pupils reside, from the funds of the district.” The residence of the parents is the residence of their minor children unless it has in some way been changed. There is no rule requiring that there shall be proof of an express contract to hold parents liable for the tuition of their minor children, where the parents are able to pay the tuition in a high school, and the inference from the language of section 122 of the School Act (J. & A. ¶ 10143) is that parents are liable for the tuition of their children where they are able to pay.

Section 121 of the School Act (J. & A. ¶ 10142) has reference only to the attendance of children in a common school district in a .district other than that of their residence, by and with the consent of the directors of the districts, and provides for the payment of the tuition out of the funds of the district of their residence. It does not apply to the case at bar but only to common schools.

There was nó proof that appellants were unable to pay the high school tuition of the children they sent to the Taylorville High School, and under section 122 the appellants are liable for such tuition. The case of Ashey v. Board of Education, 275 Ill. 274, cited by counsel for appellants, is a case wherein the rights of children to attend a common school in the district of their residence were involved and has no bearing on the questions involved in this case. The judgment is affirmed.

Affirmed.


text:
    Rudolph Lederer, Appellant, v. Ora B. Blair, Appellee.
    Husband and wife, § 164

      —what is not family expense for which wife is liable. Under section 15, ch. 68 of Hurd’s Rev. St. (J. & A. ¶ 6152), providing that the expenses of the family shall he chargeable on the property of both husband and wife, and either of them may be sued therefor, either jointly or severally, the wife is not liable for rent due under a lease signed only 1 by the husband for the remainder of the term following an abandonment of the premises, since rent of unoccupied premises is not a family expense.
    Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 15, 1918.

      D. C. Corley and Winston & Lowy, for appellant.
    Henson & Gilbert and J. H. Helmick, for appellee.

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

   Per Curiam.

This is an appeal from an order sustaining a demurrer to a declaration consisting of two counts in assumpsit. Plaintiff abiding by the demurrer, judgment was rendered against the plaintiff, who prosecutes this appeal.

The first count avers that defendant, together with her husband, James Blair, entered into possession and occupation of a certain flat in Chicago, on November 1, 1916, under a lease dated November 1, 1916, expiring" September 30, 1917, at a monthly rental of $110 per month, payable monthly in advance; that said rent due to plaintiff by virtue of said lease and occupation of said premises became a family expense of the defendant, for the payment of which defendant became liable, and that defendant failed to pay rent for'the months of May to September, 1917, amounting to $550, for which this suit is brought.

The second count avers that James Blair, husband of defendant, on November 1,1916, entered into a written lease for the premises described in the first count for eleven months at a rental of $110 per month, payable monthly in advance; that the lessee and defendant were husband and wife and entered into possession of the said premises and occupied the same until April 1st, when they abandoned the same with the request that plaintiff obtain a new tenant; that plaintiff was unable to obtain another tenant; that the rent for the months of May to September has not been paid and that defendant is indebted to plaintiff in the sum of $550.

The first count, although it avers that defendant and her husband entered into possession of the premises November 1, 1916, and that defendant has failed to pay the rent for May and subsequent months, yet, it does not aver that defendant or her husband occupied the premises during any part of the time for which plaintiff seeks to recover rent. The second count avers the lease was made by the husband and that the lessee and his wife, the defendant, occupied the flat until April 30th, when they abandoned it, having, paid the rent to that time.

The only question presented for review is whether a wife is liable for the rent of premises leased by her husband after they vacated and did not actually occupy them. It is clear that the defendant is not liable on the lease because she did not execute it; if she is liable it is only by operation of law. Section 15 of chapter 68 of the Statutes (J. & A. ¶ 6152), provides that the expenses of the family shall be chargeable on the property of both husband and wife, and either of them may be sued therefor, either jointly or severally. The liability of the wife “created by the statute arises for the expenses of the family, for debts contracted for the property for the family living; or, if for rent, for the home occupied by the family. Her liability is for family expenses, not on obligations incurred upon executory contracts for future expenses.” The Hlinois statute was copied from the Iowa statute, and in Schurz v. McMenamy, 82 Iowa 432, and Straight v. McKay, 15 Colo. App. 60, the cases involving the identical question Here presented, it was held that the wife was not liable for the rent of premises rented by the husband when they were not occupied by the family. The statute places no liability on the wife for breach of the husband’s contract for family expenses, and the wife is not liable for rent after the family had vacated the premises^ because rent of unoccupied premises is not a family expense. There was no error in sustaining the demurrer and the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Boggs

text:
    The People of the State of Illinois, Defendant in Error, v. Tom Bell, Plaintiff in Error.
    1. Indictment and information, § 59

      —when motion to quash information is good. A motion to quash, an information or in arrest of judgment in a criminal case, on the ground that the information on which the judgment is based was not supported by affidavit, is good.
    2. Criminal law, § 413

      —when question of defect in information must he raised. In cases of misdemeanors, where fines only are imposed, the question of defect in the information because of lack of an affidavit must be raised in the trial court, and cannot be raised for the first time on appeal. ,
    3. Criminal law, § 577

      —when constitutional question waived. A party seeking to reverse a judgment in a criminal case, where only a misdemeanor is involved, waives any constitutional question, where he prosecutes a writ of error to the Appellate Court. ■
    4. Gaming, § 76

      —when conviction for keeping common gaming house sustained hy evidence. Uncontradicted evidence of witnesses on behalf of the People, in a prosecution for gambling, that back of A certain saloon was a building or room about which plaintiff was frequently seen; that persons were seen going to and from the building and congregating in and about the same, and the further uncontradicted evidence of a witness that there were tables and chairs In the room and that one time he saw accused and others shooting craps there and that accused was banking” the game, was sufficient to warrant a conviction for keeping a common gaming house.
    5. Gaming, § 77

      —when instruction in criminal prosecution for is erroneous as invading province of jury. In a criminal prosecution for keeping a common gaming house, in violation of section 127 of the Criminal Code (J. & A. ¶ 3730), an instruction informing the jury that if a witness testified that he believed the defendant to be the person he saw gambling, that would not be a sufficient identification, was erroneous because invading the province of the jury.
    6. Criminal law, § 240

      —what is improper statement of prosecuting attorney. It is not proper for the State’s Attorney, in a criminal case, to either directly or indirectly call the attention of the jury to the fact that the defendant has not testified.
    7. Criminal law, § 450

      —how improper remarks of State’s Attorney must he preserved in hill of exceptions. In order to preserve exceptions to improper remarks of the State’s Attorney in his argument in a criminal case, the bill of exceptions must set forth the remarks excepted to and the ruling of the court thereon, and the lack of this evidence cannot be supplied by affidavits, even though they may appear in the bill of exceptions.
    8. Criminal law, § 240

      —what is not improper argument of State’s Attorney. It is proper for the State’s Attorney, in a criminal case, to simply state in his argument that certain evidence in the record has not been denied.
    Error to the County Court of Franklin county; the Hon. Nealy I. Glenn, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed November 1, 1918.
    B. E. Smith, for plaintiff in error.
    Boy C. Martin, for defendant 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 number.

   Mr. Presiding Justice Boggs

delivered the opinion of .the court.

Tom Bell, plaintiff in error, hereafter called plaintiff, was tried and convicted in the County Court of Franklin county on an information consisting of two counts, charging him with keeping a common gaming house, in violation of section 127 of the Criminal Code (J. & A. ¶ 3730), and was fined $100 and costs. To reverse said judgment plaintiff prosecutes this writ of error.

It is first contended by plaintiff in his brief and argument that the court erred in rendering judgment in said cause for the reason that the information on which said judgment was based was not supported by affidavit. This question was not raised in the court below by motion to quash or in arrest of judgment, or as a ground for a new trial. Neither is it assigned as error on the record in this case. ' Plaintiff’s counsel cite the case of People v. Clark, reported in 280 Ill. 160, in support of his contention. The Supreme Court in that case in discussing the question of whether in-formations must be sworn to, after citing certain cases from this and other States, at page 165 says: “To comply with section 6 of the bill of rights, and the laws of this State as construed and announced in the foregoing decisions, either the information itself must be sworn to or there must be a sworn complaint or affidavit charging a violation of the law before a warrant can issue.”

Beyond question, if the objection to the information that is now being urged by plaintiff had been urged in the court below by motion to quash the information or by motion in arrest of judgment, it would have been good. However, we are of the opinion that in cases of misdemeanors where fines only are to be imposed, questions of this character must be raised in the trial court and cannot be raised here for the first time. It has also been held by our Supreme Court that where a party seeking to reverse a judgment in a criminal case, where a misdemeanor only is involved, prosecutes his writ of error to the Appellate Court, he thereby waives any constitutional questions.

In the case of People v. Viskniskki, 255 Ill. 384, the Supreme Court at page 389 says: “Plaintiff in error contends that the court erred in refusing to quash the information. The objection made is that the affidavit attached to the information is insufficient. To this contention two satisfactory answers may be made. First, the information is filed by the State’s Attorney in his official capacity, and no affidavit in such case is required. Paragraph 207 of chapter 37 of Hurd’s Statutes of 1909 [J. & A. ¶ 3243] provides: ‘All offenses cognizable in county courts shall be prosecuted by information of the State’s Attorney, Attorney General, or some other person, and when an information is presented by any person other than the State’s Attorney or Attorney General, it shall be verified by affidavit of such person.’ Plaintiff in error concedes that the statute above quoted authorizes the presentation of an information by the State’s Attorney without any affidavit, but he urges that this statute is unconstitutional, as being in violation of section 6 of the bill of rights. The constitutional question suggested was waived by the plaintiff in error by removing his case to the Appellate Court, and he cannot now be heard in this court upon that question. (Poe v. Ulrey, 233 Ill. 56; Town of Scott v. Artman, 237 Ill. 394.) ” And in the case of People v. Powers, 283 Ill. 438, the court at page 440 says: “It cannot be denied that the prosecution of the plaintiff in error under the information, which was not verified, was a violation of his constitutional right (People v. Clark, 280 Ill. 160; People v. Honaker, 281 Ill. 295); and the constitutional question could be raised by motion in arrest of judgment and on error from this court to the trial court. Section 117 of the County Court Act (J. & A. ¶ 3243) permits a prosecution upon information of a State’s Attorney not verified by affidavit, but the question whether that statute violates section 6 of the bill of rights is one within the exclusive jurisdiction of this court, which cannot review a decision of the Appellate Court except upon error of which that court had jurisdiction, and by his action the plaintiff in error elected to, and did, waive the question of the validity of the statute. Town of Scott v. Artman, 237 Ill. 394; Vermilion Spec. Drain. Dist. Com’rs v. Shockey, 238 Ill. 237; Pittsburg, C., C. & St. Louis Ry. Co. v. City of Chicago, 242 Ill. 178; Luken v. Lake Shore & M. S. Ry. Co., 248 Ill. 377; People v. Viskniskki, 255 Ill. 384.

“The Appellate Court is equally bound with every other court to observe and regard constitutional rights of a litigant, and a writ of error from this court to the Appellate Court will lie on the ground that it has disregarded or violated constitutional rights. (Sixby v. Chicago City Ry. Co., 260 Ill. 478.) The question of the validity of the statute in this case did not arise in the Appellate Court. It is not claimed that in the proceeding in the Appellate Court there was any violation of a constitutional right or that the court did not consider and decide every error assigned of which' it had jurisdiction. The question of the validity of the statute was involved only in the trial court and cannot be considered here on the ground that it arose in the Appellate Court. * * * There was no defect in the information, which charged the offense for which the plaintiff in. error was convicted, the only objection being that it was not verified, and that objection being waived, it was legally sufficient to sustain the judgment.”

We therefore hold, in view of the language of the Supreme Court in the cases just quoted from, that the fact that the information was not sworn to or was not supported by affidavit cannot be raised in this court.

It is next insisted by plaintiff that the evidence does not support' the verdict and the judgment rendered thereon. Several witnesses testified on the part of the People to the effect that back of a saloon known as Smith’s saloon, in Zeigler, Illinois, in said county, there was a building or room in and about which plaintiff was frequently seen; that persons were observed going to and from this building and congregating in and about the same. Walter Dial, a farmer residing in that community, testified on behalf of the People that he had seen plaintiff in and about the Smith saloon and in and about the building or room back of the same»; that there were chairs in the room and two round looking tables; that he saw the plaintiff in said room paying out and taking in money; that they were running a crap game; that there were several persons in the room at the time; that it was “what would be called gambling”; that he saw ‘‘ them shooting craps ’ ’; that “when the dice rolled on the table the defendant, Tom Bell, would either pay out money or take it in; that was in the spring of 1917.” This witness identified plaintiff in error as the man he saw banking a crap game. Plaintiff in error did not take the stand and there was no testimony offered by him to contradict the testimony of the witness, Dial, to the effect that gambling was going on at this place and that he was there banking the game. We are therefore of the opinion that the jury were fully warranted in finding plaintiff guilty of keeping a common gaming house.

It is next insisted by plaintiff that the court erred in giving the third instruction given on .behalf of the People. We have examined this instruction and are unable to see how the giving of this instruction could have prejudiced the rights of plaintiff, and we therefore hold that the giving of this instruction was not error.

It is next contended by plaintiff that the court erred in refusing to give plaintiff’s refused instruction No. 1. This instruction undertakes to inform the jury that if a witness testified that he believed the plaintiff to be the person that he saw gambling, that that would not be a sufficient identification of the plaintiff. We think the court correctly refused to give this instruetion, as it was for the jury to state from all the evidenee in the case and all the testimony given hy the various witnesses whether or not plaintiff was the person, if any one, conducting the gambling house in question.

Lastly, it is insisted by plaintiff for a reversal of the judgment in said cause that the trial court erred in not giving a new. trial to plaintiff for the alleged reason that the Assistant State’s Attorney commented on /the fact that plaintiff did not testify. It is a well-recognized principle of law that neither directly nor indirectly is it proper for the State’s Attorney to call the attention of the jury to the fact that a defendant has not testified, and to do so has frequently been held to be reversible error. Plaintiff, however, is not in a position to urge this assignment of error for the reason that the bill of exceptions does not contain the language used by the Assistant State’s Attorney in his argument to the jury, nor the exceptions, if exceptions were taken, and the ruling of the court thereon. An attempt has been made by plaintiff to incorporate into the record the alleged statements of the Assistant State’s Attorney by affidavits. This is not sufficient. In order to preserve exceptions to the remarks of counsel in the argument to the jury, the bill of exceptions must set' forth remarks, excepted to, and the ruling of the court thereon. If counsel fail to have such remarks and the ruling of the court thereon preserved, he cannot supply the lack of this evidence by affidavits, even though the affidavits may appear in the bill of exceptions. Mayes v. People, 106 Ill. 306; City of Salem v. Webster, 192 Ill. 369; Peterson v. Pusey, 237 Ill. 210; Hale v. Hale, 169 Ill. App. 272.

In Mayes v. People, supra, the court at page 314 says: “The last objection to be noticed is, that the State’s Attorney, in his closing argument to the jury, made certain unwarranted statements of fact. This is not shown by proper recital in the bill of exceptions, as it should be if it is to be considered by us, but appears only in an ex parte affidavit of the prisoner, made and presented in support of the motion for a new trial. If the fact occurred, it is to be presumed the judge knew it, and there was no need of an affidavit to bring it to his attention. It is not even shown by the bill of exceptions that the attention of the judge was called to the subject upon the trial, or that the judge had forgotten or did not know what then occurred upon the trial. The ex parte affidavit of a defendant cannot thus be made to override the recitals of the bill of exceptions as to what occurred upon the trial of a criminal cause.”

Notwithstanding the record does not properly set forth the statement complained of, we have nevertheless examined the purported statement as set forth in the affidavit and we are of the opinion that it did not violate said rule for the reason that no reference is made to the fact that the defendant did not testify, but simply stated that certain evidence in the record had not been denied. This has been held to be permissible by our Supreme Court. Bradshaw v. People, 153 Ill. 156.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Affirmed.


text:
    Marguerite Eichhorn, Appellee, v. St. Louis & O’Fallon Coal Company, Appellant.
    1. Mines and minerals, § 153

      —when evidence tending to show dangerous condition of roof of mine prior to injury to miner is admissible. In an action to recover for the death of a miner, due to the fall of slate from the roof of a room in a mine, in which it was charged that there was an unsafe condition in the roof of the room where deceased was injured and that there was a wilful failure to mark the same by the mine examiner, evidence tending to show the dangerous condition of the roof of the room some days prior to the day of the injury was admissible.
    2. Mines and minerals, § 181

      —when question whether failure of mine examiner to mark dangerous place in mine is proximate cause of injury to miner is for court. It was a question for the court as to whether the failure of the mine examiner to mark a place in the roof of the mine as dangerous was the proximate cause of the death of a miner, due to slate falling from the roof, where the case was tried before the court without a jury and the evidence tended to show that the slate in the roof over the coal was more or less brittle and that the only safe way of protecting that kind of a roof is by.propping or taking down the slate, and that there is no way to determine when such slate will fall, even though it appears to be solid when inspected.
    3. Death, § 67

      —when verdict for death of coal miner not excessive. A verdict for $6,000 for the death of a coal miner was not excessive, where deceased was 29 years of age at the time of his death, had been earning $5 per day 4 days in the week, was an able-bodied man and lived with and supported his family.
    4. Workmen’s Compensation Act, § 2

      —when due posting by employer of election not to be bound by is shown. Evidence held sufficient to show that notice that the employer had elected not to be bound by the Workmen’s Compensation' Act had been duly posted, as required by law.
    Appeal from the Circuit Court of St. Clair county; the Hon. • George A. Crow, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed November 1, 1918.
    Barthel, Farmer & Klingel, for appellant.

      Webb & Zerweck and T. M. Webb, for appellee.

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

On and prior to July 19, 1916, appellant operated a coal miné in St. Clair county, Illinois, and among various other working places in said mine was room 4 off a certain stub entry. This room was about 250 feet in depth from north to south, and about 37 feet in width; it was west from and"next to room 3. In the east rib of room 4, at a place starting at the southeast comer and extending northward about 21. feet, it was intended to drive a crosscut from room 4 into room 3. The vein of coal was about 6% feet thick, and on the top thereof was a layer of slate from about 20 inches to 2 feet in thickness, a part of which would come down with the coal when shots were fired, leaving a solid limestone rock top where the slate had fallen.

Some days prior to the accident in question, machine men had gone into room 4 and made the first undercutting to a depth of about 6 feet in the east rib of the room mnning from the southeast comer of the room northward about 21 feet, where the crosscut was to be turned off. Thereafter shots were so placed as to blast out the center of the face of the crosscut leaving it a “V” shape. The coal was then cleaned up and removed. A day or two prior to the accident shots were placed in the right and left face of the crosscut for the purpose of blasting out the remaining portions which had been undercut at the face of the crosscut. These shots were fired the day before the accident. The coal that had been shot down was piled up in the face of the crosscut to within about 2 feet of the slate.

At about 3 o’clock on the morning of July 19th, the date of the accident, the mine examiner inspected this room, leaving his visitation mark, “7/19 ”. He examined the slate in the roof with his sounding rod, and found conditions safe according to his testimony, and so reported tbe same and made a record thereof in the mine booh kept for that purpose.

Appellee’s intestate, and buddy, went to work in this room at about 8 o ’clock of said day. On entering the room, they observed some loose slate in the roof and along the face and east rib of the room, and undertook to, and did, pull a quantity of the slate down. They also sounded the roof with their picks, according to the testimony of the buddie of appellee’s intestate, and believed the remaining slate was solid and safe. Appellee’s intestate was an experienced miner and his buddie had had about 2 years’ mining experience. They proceeded to load the coal and from time to time sounded the roof and were of the opinion that the slate hanging therefrom was solid. While loading the fifth car, at about 11 o’clock a. m., a piece of slate of triangular shape about 7 or -8 feet in length and about 20 inches to 2 feet in thickness fell upon appellee’s intestate, catching his leg under the fall and injuring him, from which injury he thereafter died.

The amended declaration consists of two counts. The first count charges a dangerous condition in the working place of appellee’s intestate, a wilful failure on the part of appellant to enter the working place of appellee’s intestate and inspect the same and to place a conspicuous mark thereat as notice to all men to keep out, and to make a record thereof in a book kept for that purpose; the second count charges a wilful failure to observe the unsafe and dangerous roof and place a conspicuous mark thereat, etc., each count further alleging the rejection of the Workmen’s Compensation Act by appellant. To this declaration appellant filed a plea of the general issue. The case was tried by the court without a jury, a finding was had for appellee and judgment rendered thereon against appellant for the sum of $6,000. To reverse said judgment this appeal is taken.

It is first contended by appellant that the court erred in its rulings on the evidence, the contention of appellant being that certain testimony offered by appellee and heard by the court tending to show the condition of the roof of the room in which appellee’s intestate received his injury, some days prior to the day of the injury, was erroneous.

The principal question to be determined in this case was whether or not there was an unsafe condition in the roof of room 4 where appellee’s intestate received his injury, and whether there was a wilful failure to mark the same by the mine manager of appellant. The evidence in question, we think, was proper, as it tended to show that the slate in the roof was observable for some days prior to the day of the injury, and that miners of experience were able to tell that this slate overhanging the roof in said room was dangerous and was liable to fall without previous warning. Several witnesses of experience in mining testified that this slate was of a character that was more or less brittle and was liable to fall, and that the only proper way to handle a condition of this kind .was either to take the slate down or to prop it. If the testimony of these witnesses is true, it tended to show knowledge, or that there should have been knowledge on the part of appellant and its mine manager with reference to said condition, and tended to show that this slate should have been marked with a conspicuous mark, as being dangerous. The court did not err in receiving this testimony.

It is next contended by appellant that on the morning of July 19, 1916, there was nothing to indicate to the mine examiner that a dangerous condition existed in the roof of this room; that the testimony of the mine examiner to the effect that he examined the roof, that he tested it with his rod, sounded the slate, and that he found it solid, together with the testimony of the buddy of appellee’s intestate to the effect that he and appellee’s intestate sounded the roof from time to time while they were loading the cars in question, was proof conclusive that no dangerous condition was indicated at said time, and that the failure of appellant’s mine examiner to mark said place as dangerous was not wilful under the meaning of the statute. Appellant cites in support of his contention the case of Cook v. Big Muddy-Carterville Min. Co., 249 Ill. 41.

While there is some language in the opinion of the court in said case that might be construed to support the theory of the law as contended for by appellant, we think the expression of the Supreme Court in the case of Piazzi v. Kerens-Donnewald Coal Co., 262 Ill. 30, and in Schultz v. Henry Ericsson Co., 264 Ill. 156, clearly establishes the position of the Supreme Court of this State on the construction of said statute to be, that the question as to whether the failure of the mine examiner to mark a place as dangerous was the proximate cause of the injury is a question of fact for the jury.

In Schultz v. Henry Ericsson Co., supra, the court at page 165 says: 1 ‘ The provisions of the statute we are considering are in the same language as section 33 of the Mining Act, in force at the time this statute was passed. In the recent case of Piazzi v. Kerens-Donnewald Coal Co., supra, this court held that the mine owner or operator is liable for a wilful violation of the mining statute even though he had the place examined by a mine examiner, who in good faith believed that the place was not dangerous. * * * It was held in Aetitus v. Spring Valley Coal Co., 246 Ill. 32, that if conditions in thq mine are in fact dangerous, the owner or operator cannot excuse himself from liability for a wilful violation of the Mines and Mining Act if he fails to cause the places where the dangerous conditions exist to be marked, even though the mine examiner may have examined those places and in good faith believed that the conditions were not dangerous.” And in Aetitus v. Spring Valley Coal Co., supra, on page 39 it is said: “When the mine owner or operator is advised of the conditions in the mine, he must place in the mine, if it is dangerous, the statutory marks, and if he fails to do so he acts at his peril, and he cannot excuse himself because he or his examiner or manager may think the mine safe. To so hold would be to permit the mine owner or operator, or Ips examiner or manager, to usurp the functions of the court and jury, and to pass upon a question which, in every case like this, is a matter of proof and is to be determined as a fact by the jury. Catlett v. Young, 143 Ill. 74; Odin Coal Co. v. Denman, 185 Ill. 413; Davis v. Illinois Collieries Co., 232 Ill. 284; Eldorado Coal and Coke Co. v. Swan, 227 Ill. 586; Mertens v. Southern Coal and Mining Co., 235 Ill. 540; Olson v. Kelly Coal Co., 236 Ill. 502; McCarthy v. Spring Valley Coal Co., 232 Ill. 473.”

The evidence in the record in this case tends to show that the slate over the coal in this mine was more or less brittle and that the only safe method of protecting that kind of a roof is by propping or taking down the slate, and that there is no way to determine when such slate will fall, even though it appears solid when inspected. We are therefore of the opinion that on the record in this case under the Mining Act, as construed by the Supreme Court in the foregoing cases, it was a question of fact, for the court, as to whether the failure of the mine examiner of appellant to mark the slate in the roof in said room was the proximate cause of the death of appellee’s intestate.

It is next contended by appellant that the dangerous condition in said room 4, if it was a dangerous condition, occurred by virtue of the work being done by appellee and his buddy, and that therefore appellant would not be liable. It is only necessary for us to state that the evidence in the record does not support appellant’s contention, the preponderance of the evidence being to the effect that the condition of the room which resulted in the fall of the coal or slate and death of appellee’s intestate existed prior to and at the time that appellee’s intestate and his buddy began work.

It is next contended by appellant that the finding and judgment in this case is excessive. The record discloses that appellee’s intestate was 29 years of age at the date of his death; that he was earning^ome $5 a day as a miner and" that he was working at the time of his death 4 days a week, and that he was an able-bodied man and that he lived with and supported his family. In view of this evidence we are not able to say that the finding and judgment of the court is so excessive as to require a reversal of the judgment on that account.

Lastly, it is contended by appellant that no proper proof was made of the posting of the notice to the effect that appellant had elected not to be governed by the provisions of the Workmen’s Compensation Act. It is admitted that the notice of such election was filed with the Industrial Board, but it is contended that the proof of the posting of the notice was not sufficient. Several witnesses testified on behalf of appellee to the effect that a notice was posted touching the connection of appellant with the Workmen’s Compensation Act, and several of said witnesses testified to the effect that while they were not able to state the exact language of the notice that was posted, that it was to the effect that appellant would not be bound by the provisions of said act.

While the evidence with reference to the posting of said notice is not of the most satisfactory character, at the same time we are inclined to hold that the evidence was sufficient to warrant the court in finding that notice that appellant had elected not to be governed by the Workmen’s Compensation Act had been posted, as required by law.

Finding no reversible error in the record the judgment of the trial court will be affirmed.

Affirmed.


text:
    Vera Weber for use of Benjamin Murphy, Appellant, v. W. J. Ridgway, Administrator, and Benjamin Murphy, Appellees.
    1. Executors and administrators, § 498

      —when error to enter final judgment against administrator. It is error, in garnishment proceedings, to enter a judgment in the nature of a final judgment against an administrator in favor of the judgment creditor, since final judgment cannot he entered against an administrator until there has been an order of distribution, the only proper judgment being a conditional one.
    2. Garnishment, § 105

      —when judgment is erroneous. A judgment in garnishment proceedings against an administrator is erroneous where it runs directly in favor of the judgment creditor against the administrator, instead of being rendered in favor of the judgment debtor, for the use of the judgment creditor.
    3. Workmen’s Compensation Act—when funds derived from award for death of employee not subject to garnishment in hands of administrator. Under section 21 of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. ¶ 5475(21)], providing that no payment, claim or award under the act shall he assignable or be subject to any lien, attachment -or garnishment, or be held liable in any way for any lien, debt, penalty or damages, funds derived from an award for the death of an employee, which award is made directly to the widow as the only surviving dependent, are not subject to garnishment in the hands of the administrator of the estate of deceased.
    Appeal from the Circuit Court of Crawford county; the Hon. John C. Eagleton, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded.
    Opinion filed November 1, 1918.
    B. O. Sumner, for appellant.

      Bradbury & Bradbury, for appellee's.

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment for $197.85 and costs rendered by the Circuit Court of Crawford county against W. J. Ridgway, administrator of the estate of Jesse Weber, deceased, garnishee, in favor of Benjamin Murphy, said judgment to be paid by said administrator when funds in his hands were by the County Court ordered to be distributed in due course of administration. A jury was waived and said cause was tried on the following stipulation of facts:

“1. That W. J. Ridgway was administrator of estate of Jesse Weber, deceased, and is still acting in said capacity.
“2. That Murphy on July 31st, 1917, recovered a judgment against Ridgway, administrator, in a garnishee proceeding before a justice of the peace on a judgment theretofore procured by Murphy against appellant, Vera Weber, on a promissory note executed by her.
“3. That Vera Weber, widow of Jesse Weber, deceased, executed her said note to Murphy after the death of her husband‘and that execution was issued on said judgment against Vera Weber and returned ‘No property found,’ and that Murphy afterwards filed his affidavit alleging that Ridgway, administrator, had funds in his hands, as such administrator, belonging to Vera Weber, and upon trial Ridgway testified he had more than $263.18 belonging to Vera Weber and justice gave judgment against Ridgway, as such administrator, for $197.85 and costs, and Ridgway appealed to the Circuit Court.
“4. That such administrator, on the trial in Circuit Court, admits he has more than $263.18 belonging to Vera Weber, after allowing for costs and expenses of administration and payment of debts of Jesse Weber estate.
“5. That in July, 1917, Bidgway, as such administrator, received a check from American Glycerin Company, made payable to the administrator and Vera Weber, in the sum of $383.81, and that he held this check when he was served with the garnishee writ.
“6. That Jesse Weber, deceased, was an employee of American Glycerin Company at time of his death, within the Workmen’s Compensation Act of Illinois, and that the Industrial Board made an award to Vera Weber, under said law, to her as the only dependent of Jesse Weber, deceased, and that the money garnisheed was part of the award which had accrued for several months and was due Vera Weber as the surviving widow, and was received by such administrator as a part of the award allowed as compensation, as aforesaid.”

Said stipulation of facts was all the evidence offered or that was heard by the court on the trial of said cause.

Two grounds are urged by appellant for a reversal of this judgment: The first is that the trial court entered a judgment in the nature of a final judgment against said administrator in favor of appellees, when under the statute no final judgment can be entered against an administrator until there has been an order of distribution; that the only judgment that can be entered is a conditional judgment. Appellees concede that this is true and that the judgment entered by the clerk was erroneous, but contend that the error in the entering of the judgment was the error of the clerk and that at the March term, 1918, the trial court, on notice, corrected said judgment and made it conditional in form and made the judgment against the administrator in favor of Vera Weber for the use of Benjamin D. Murphy.

The appeal that was prayed was from the judgment rendered at the December term, 1917, of said Circuit Court. The bill of exceptions and the appeal bond were filed within the time fixed by the court, when said appeal was prayed.

The bill of exceptions does not contain the evidence, if any, which was offered or heard by the Circuit Court at the time of the purported amendment to the judgment in this case. There is therefore nothing in the record that shows any warrant or authority for said purported amendment made at the following March term. As stated above, counsel for appellees concede that the judgment as disclosed by the bill of exceptions and the record is erroneous, but contend that the court had no power to render any other than a conditional judgment and that therefore no appeal can be prayed from said judgment and that the appeal prayed herein by appellant, Vera Weber, should be dismissed. We are of the opinion, however, that inasmuch as the court purported to enter a final judgment in this case that appellant is entitled to have the cause heard, and if the court erroneously entered a final judgment instead of a conditional judgment, to have said cause reversed for said reason.

Said judgment is erroneous for the further reason that it ran directly in favor of Murphy, the judgment creditor, against said administrator, instead of being rendered in favor of Vera Weber, the judgment debtor, for the use of Murphy, the judgment creditor. Kern v. Chicago Co-operative Brewing Ass’n, 40 Ill. App. 356; Kern v. Chicago Co-operative Brewing Ass’n, 140 Ill. 371; Webster v. Steele, 75 Ill. 544; National Bank of America v. Indiana Banking Co., 114 Ill. 483; Siegel Cooper & Co. v. Schueck, 167 Ill. 522.

It is next contended by appellant that under the provisions of section 21 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. ¶ 5475(21)], the funds in question are not subject to garnishment. This act provides among other things: “That no payment. claim or award of a deceased under this act shall be assignable or be subject to any lien, attachment or garnishment, or be held liable in any way for any lien, debt, penalty or damages.”

Under the stipulation in this case the funds sought to be garnisheed were made up of an award made under the Workmen’s Compensation Act to appellant Vera Weber, as the only dependent left surviving by the said Jesse Weber, deceased. We think, under the provisions of said statute, that inasmuch as this award was made directly to Vera Weber and is made up from funds derived from said award, it would not be subject to garnishment.

For the reasons above set forth, this cause will be reversed and remanded.

Reversed and remanded.


text:
    John U. Metzger, v. Charles F. Emmel and Belle F. Emmel, Appellants. Lisetta Springer, Appellee.
    1. Mortgages, § 586

      —when agreement between vendor and purchaser that land retained by vendor be first sold at foreclosure sale shown. Evidence held sufficient to show an agreement between the seller of land and purchasers whereby a tract retained by the seller, which, with the land sold, was covered by the same mortgage, should be first subjected to sale in satisfaction of the mortgage, in the event of foreclosure, before resorting to the land sold.
    2. Evidence, § 333

      —when true consideration for sale of land may be shown. The true consideration for a conveyance of real estate may be shown, even though the oral testimony may show a different consideration from that expressed in the deed.
    3. Mortgages, § 587

      —when doctrine of marshaling of assets should be applied. The doctrine of marshaling of assets should be applied where the first mortgage covers three tracts of realty and the second mortgage covers only two of the tracts, and the holder of the first mortgage should be required to first exhaust the security which he holds that the second mortgagee has no lien upon.
    Appeal from the Circuit Court of Fayette county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed November 1, 1918.
    F. M. Guinn, for appellants.
    John H. Webb, for appellee.

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

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

John U. Metzger filed a bill in chancery to foreclose a mortgage executed by appellants Charles F. Emmel and Belle F. Emmel, his wife, conveying to G. T. Turner three separate pieces of property in Fayette county, Illinois, which for brevity are hereafter referred to as follows: Tract 1, “The Home Place” consisting of two lots in" Vandalia, Illinois, occupied by the Emmels as their home. Tract 2, “The Vera Farm” near Vera, Hlinois, of about 80 acres. Tract 3, “The Camp Farm,” on Hickory creek, of about 80 acres.

This mortgage was given by the Emmels to secure their note payable to Turner for $6,125, with 6 per cent interest. The note was duly assigned to Metzger and matured April 28, 1915.

Appellants Charles F. Emmel and Belle F. Emmel, his wife, in their answer admitted the execution of the note and mortgage and alleged that at the time of the execution of the same, and from thence until the hearing of this cause, they occupied said “Home Place” as their homestead; that on March 14, 1917, they conveyed to appellee, Lisetta Springer, tracts 2 and 3, subject to said mortgage indebtedness, and asked that upon a decree of foreclosure being granted that the lands conveyed by them to appellee be first offered for sale and sold, and that the “Home Place” be not sold, until the proceeds of the sale of the land conveyed to defendant, Lisetta Springer, has been applied on said mortgage indebtedness.

Appellee by her answer admits Metzger’s right to a decree of foreclosure and that she is the owner of tracts 2 and 3, acquired from the Emmels as aforesaid, and alleged that by agreement with Charles F. Emmel, and in equity as between herself and appellants Emmels, tract 1, “The Home Place,” should, in case of foreclosure and sale, be sold first.

Upon a hearing had, the chancellor entered a decree of foreclosure finding the equities as between appellants and appellee to be in favor of appellee, and decreeing that the “Home Place” or “Homestead” of appellants be sold first, from which decree this appeal is taken.

It appears from the evidence that Fred Emmel, father of appellant, Charles F. Emmel, had for a number of years prior to his death acted as an agent for appellee in loaning her money; that Charles F. Emmel, appellant, had aided his father in his loan business and had taken a great many loans in his own name; that said Fred Emmel and appellant, Charles F. Emmel, had on various pretexts obtained the mortgage securities of appellee to the value of about $10,000 and in their place had delivered to her negotiable papers alleged to be forgeries and worthless.

Shortly after the death of the said Fred Emmel, negotiations were entered into whereby appellants Charles F. Emmel with Belle F. Emmel, his wife, deeded to appellee tracts 2 and 3, above described. This deed contained the following clause: ‘‘ The above last three described tracts being subject to $6125 mortgage given to Gr. T. Turner.”

No question was raised as to Metzger’s right to a foreclosure. Appellants contend that by reason of the clause in the deed to Lisetta Springer to the effect that the conveyance to her was subject to said mortgage for $6,125, that therefore the rule in regard to the inverse order of alienation does not apply, and in support thereof cites Monarch Coal & Mining Co. v. Hand, 197 Ill. 288, and Briscoe v. Power, 47 Ill. 447. These cases hold that where a mortgagor makes a conveyance of mortgaged property owned by him to a third person subject to said mortgage indebtedness, that in such case the grantee in the deed has notice of the mortgage indebtedness and takes the property subject thereto, and on a foreclosure of said mortgage the grantee is not entitled to have a decree subjecting lands, covered by said mortgage and not conveyed, sold prior to the sale of the lands conveyed. In this case, however, the evidence tended to prove and the court found, in its decree, that it was the mutual agreement or understanding between appellee, Lisetta Springer, represented by her attorney, and said Charles F. Emmel, that the “Home Place” being retained by Emmel should be subjected to sale in satisfaction of said mortgage in order to protect appellee, Lisetta Springer, in her security, the evidence being to the effect that Matheny, who represented Mrs. Springer, did not want to take said premises subject to a mortgage indebtedness for the reason that it would jeopardize Mrs. Springer’s security, and that Charles F. Emmel stated to him that the “Home Place” and one of the eighties conveyed to Mrs. Springer would satisfy the mortgage indebtedness leaving the other eighty free and clear therefrom.

The record further discloses that some computations were made with reference to the value of the land being conveyed to Mrs. Springer, and that in making these computations the land was figured at its value without reference to the mortgage. In other words, the land free of the mortgage was figured and not the value of the equity subject to the mortgage. We think, therefore, that the evidence in the record was sufficient to warrant the court in finding that it was the mutual agreement and understanding between appellee, Lisetta Springer, represented by her attorney, Mr. Matheny, and Charles F. Emmel, that the “Home Place” retained by Charles F. Emmel should be first made subject to sale in satisfaction of the said mortgage indebtedness. Appellant further contends that to so hold would be in violation of the language used in the deed. In other words, that it would be a varying of the terms of a written instrument by oral testimony. We think, however, that the holding of the trial court would not amount to the varying of the terms of a written instrument. The court heard evidence touching the consideration for which the conveyance was made, and this has always been held to be allowable. The true consideration for the conveyance of real estate may be shown even though the oral testimony may show a different consideration from that expressed in the deed. Union Mut. Life Ins. Co. v. Kirchoff, 133 Ill. 368; Primm v. Legg, 67 Ill. 500; Booth v. Hynes, 54 Ill. 363; Worrell v. Forsyth, 141 Ill. 22.

In Union Mut. Life Ins. Co. v. Kirchoff, supra, at page 379, the court says: “The quitclaim deed from the Kirchoffs to the company, dated September 4,1879, contains the following clause: ‘This conveyance is given and accepted in satisfaction of certain indebtedness of the said Julius Kirchoff and Elizabeth Kirchoff, secured by a trust deed on said premises, given by the said Julius Kirchoff, and Elizabeth Kirchoff, his wife, and Angela Diversey, to Levi D. Boone, trustee, dated the 8th day of May, in the year 1871.’ And it is claimed that complainant is estopped by this clause in the deed from setting up the agreement to redeem. The consideration named in a deed has never been regarded as conclusive on the parties to the instrument. Parol evidence is not admissible to vary or contradict the terms of a deed or other written contract, yet such evidence may be introduced to show the true consideration of a deed, although it may be different from that named in the instrument. (Booth v. Hynes, 54 Ill. 363; Primm v. Legg, 67 Ill. 500.) The clause referred to is a mere recitation that the consideration for the deed was a certain thing, which could not be conclusive, and if not conclusive it could not work an estoppel. * * * The substance of this agreement was, that complainant was to have the two lots in question, notwithstanding her deed of September, 1879, and notwithstanding the decree of foreclosure, and sale thereunder, upon the payment of $1,000, and the execution of her notes, secured by a mortgage on the premises, for the balance.”

The Supreme Court in the foregoing case held that the agreement above set forth might be shown by parol, notwithstanding the deed there under consideration recited that the same was made in consideration of the settlement of certain indebtedness. We hold, therefore, that the court did not err in allowing appellee to show that a part of the consideration for the conveyance to Lisetta Springer in effect was that the “Home Place” retained by Emmel and which was also subject to said mortgage indebtedness should be sold prior to the sale of the real estate conveyed to Mrs. Springer.

It is practically conceded by counsel representing the different parties to this proceeding that the sole object to be obtained in the conveyance to appellee, Lisetta Springer, was to make her secure for the amount owing to her from appellant, Charles F. Emmel, and the estate of his deceased father. The record discloses that it was agreed between Charles F. Emmel and Matheny, representing Mrs. Springer, that appellant Emmel was to have one year in which to sell said premises so conveyed to Mrs. Springer,, and in the event that the premises sold for more than enough to satisfy the amount due Mrs. Springer, appellant Charles F. Emmel was to have the excess. If, therefore, the deed to appellee, Lisetta Springer, was in fact a mortgage, then the doctrine of the marshaling of assets should apply. John IT. Metzger, the holder of the mortgage sought to be foreclosed, has as security for the amount covered by said mortgage not only the premises conveyed to appellee, Lisetta Springer, but also the “Home Place” retained by Charles F. Emmel, whereas Lisetta Springer was limited in her security to the two tracts of land conveyed to her. The court, therefore, would be warranted in requiring Metzger to first exhaust the security which he held and on which Lisetta Springer had no lien. In other words, Lisetta Springer was entitled to a decree requiring the sale of the “Home Place” in satisfaction of said mortgage held by Metzger before the sale of the premises conveyed to her, as security as aforesaid.

Counsel for appellants at the bottom of page 2 of his brief says: “Then negotiations took place between appellee’s attorneys and appellant, who was not then represented by counsel. As a result it was arranged that appellant would convey to appellee certain real estate in satisfaction of said indebtedness, or rather to secure said indebtedness. Appellee’s counsel agreeing that he would give appellants a contract, by which they could dispose of said lands so conveyed at private sale at any time during one year.” On the theory that the deed to appellee, Lisetta Springer, was in the nature of a mortgage, the court was warranted in rendering a decree, subjecting the “Home Place” held by appellant Charles F. Emmel to sale prior to the sale of the premises on which appellee, Lisetta Springer, held the conveyance as aforesaid.

It is also contended by appellants that the court erred in finding that the scrivener who drew the deed from appellants Charles F. Emmel and wife to appellee, Lisetta Springer, by mutual mistake inserted the clause to the effect that said conveyance was made subject to said mortgage indebtedness. Matheny, attorney for appellee, Lisetta Springer, testified that he drew the deed and that he put said clause in said deed for the reason that he knew that said premises were subject to a mortgage, but that so far as he knew he did not put this clause in at any one’s request! Whether or not the evidence is sufficient to substantiate the finding made by the court is immaterial in view of what we have already said. We are satisfied that on this record the decree rendered by the trial court is in keeping with the equities of the case, and does substantial justice between the parties interested.

Finding no reversible error in the record the judgment of the trial court will be affirmed.

Affirmed.


text:
    John A. Ringering, Appellee, v. Wood River Drainage & Levee District of Madison County, Illinois, Appellant.
    1. Drainage, $ 112

      —what damages for overflow of land not contemplated, at time of adoption of drainage plans. Damages for overflow of land' near a river, due to the construction of levees up stream which shut off the natural overflow of flood water in another direction and the failure to complete a direct channel three-quarters of a mile long to the outlet, which would have taken care of the flood water, if completed, were not contemplated at the time the drainage district was organized and the drainage plans were adopted.
    2. Drainage, § 50

      —when commissioners act in ministerial capacity rendering district liable for their acts. Drainage commissioners act in a judicial or quasi judicial character in the adoption of plans and specifications for drainage work, hut when undertaking to put the plans into effect, they are acting in a ministerial capacity, and the drainage district is liable for overflow of land by flood water due to their acts.
    3. Drainage, §112

      —when district estopped to show why outlet not completed. A drainage district is not in position to offer as an excuse as to why an outlet, consisting of a direct channel from a small river to a large river, as a part of a drainage system, was not completed, that it still contemplates the construction of such outlet, where plans and specifications were adopted 3 years after the district was organized and 2 years later an application to the court for an additional assessment to complete the outlet was refused, and the flood, for which damages were sought, did not occur until one year later.
    4. Drainage, § 112

      —when evidence supports verdict for damages for overflow. Evidence held sufficient to support a verdict for $1,665.45 as damages for overflow of land, due to the failure of a drainage district to complete its work of construction of an outlet for flood waters.
    5. Appeal and error, § 812

      —when objections to argument not sufficiently preserved for review. Objections made to remarks of counsel in the argument to the jury are not sufficiently preserved for review where they do not appear in the bill of exceptions, except by affidavit.
    6. Appeal and ebbob, § 1512

      —when remarles by court are harmless error. Remarks made by the court in commenting on the evidence were not reversible error where no harm could have resulted to defendant therefrom, and the court stated to the jury that it was not attempting to influence the jury by anything that had been said.
    7. Municipal cobpobations, § 1236

      —when execution does not lie. The ordering of an execution against a municipal corporation is error.
    Appeal from the Circuit Court of Madison county; the Hon. J. P. Gillham, Judge, presiding. Heard in this court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed November 1, 1918.
    William P. Boynton and Charles H. Burton, for appellant.
    Burroughs & Ryder and J. V. E. Marsh, 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. Presiding Justice Boggs

delivered the opinion of the court.

An action on the case brought in the Madison county Circuit Court by appellee against appellant, Wood River Drainage & Levee District of Madison County, and its commissioners, resulted in a finding of not guilty as to the commissioners and guilty as to appellant, Drainage & Levee District, and assessing damages at $1,565.45. The motion for a new trial was overruled and judgment was rendered on the verdict. To reverse said judgment appellant prosecutes this appeal.

Appellant, drainage district, was organized in the year 1909, and included in its boundaries the lands located along the stream known as “Wood River” which had its outlet in the Mississippi River. Said stream was very tortuous. Its upper portion comprised two branches known, as “east” and “west” forks. These came together at a point in the northerly part of said district and flowed in one channel from thence to the Mississippi River. Said point of junction was north of the Village of East Alton. The declaration consisted of one count and, in substance, alleges that for a great many years prior to the formation of said district, in times of freshets and rainstorms, the flood waters from the “east” fork would overflow the banks as in a state of nature, at points north and east of Alton, and thence through said village and to the south into a body of water known as “Grassy Lake” and thence beyond the district; that appellee was a tenant farmer of certain lands in said district lying southwest of the stream in question, and at or near the mouth thereof, where it enters the Mississippi River; that in a state of nature said lands were not subject to overflow from flood waters of “Wood River.” That by the plans adopted by the court in 1912, as aforesaid, the work in appellant district was divided into “sections,” which comprised, among others, an artificial channel direct to the Mississippi Eiver, and up stream from the month of Wood Eiver, about three-quarters of a mile; this work was known as “Section A.” That certain levees were constructed by the commissioners along the sides of the stream, north of East Alton, and large volumes of flood waters which theretofore flowed towards “Grassy Lake” were diverted from their natural course, and were “kept in the channel of Wood Eiver, and carried down and through the same to the east of and below the said Village of East Alton, to and upon the said lands occupied by the plaintiff,” alleging damages, etc.

A demurrer to the declaration being overruled, a plea of the general issue was filed, a trial was had re-suiting in a verdict and judgment as above set forth. The record discloses that this drainage district was organized in 1909; that the plans for the construction of said district, being the straightening of the watercourse, the building of levees, bridges, etc., were approved by the County Court of said county in 1912 and the work was ordered to be done.

Bids were advertised for, but only one bid was received and that was largely in excess of the estimate and was rejected. Thereupon, the commissioners advertised for bids on the work in separate sections. One bid covering levee work, another channel work, another concrete culverts work, another cutting timber, building bridges, etc. Certain of the bids received were within the estimate and certain of them were above the same. Contracts were let for the greater part of the work of the district, not, however, including the work at the outlet known as “Section A.”

In the course of the constrjiction of the work, all of the funds of the district were expended without any work having been done on “Section A.” An application was made by the commissioners of the district to the County Court for the levy of an additional assessment to construct the work in “Section A,” hut the court refused to grant the same. On the afternoon of August 20, 1915, a very heavy rainfall occurred throughout the district and surrounding country, it being conceded to have been one of the heaviest rains that ever had occurred in that vicinity, and “Wood River” left its banks, washed over the top of the levee, washing out embankments. and other improvements made by said district. At or near the point where it had been planned to cut the new channel in “Section A” the water overflowed the land in this locality, including the lands of appellee, covered the same with the deposits of silt and rubbish, thereby damaging appellee’s crops and otherwise causing the injury complained of.

It is strenuously contended by appellant that inasmuch as the lands in question were included in and made a part of the district, that whatever damages the owner of these lands were entitled to were fixed at the time the lands were included in the district, either in the way of damages or by the cutting down of the assessment on said lands. On the other hand, appellee insists that the damages which he has sustained by reason of the flooding of Ms lands were never contemplated at the time the district was organized and said plans were adopted.

It cannot be successfully contended in this case that the damage to appellee’s lands resulting from the flooding of the same as above stated was ever contemplated at the time of the adoption of the plans and specifications approved by the court in 1912 for the .work of this district. No one would then have seriously considered the damages that would accrue and be suffered by lands situated as appellee’s were by reason of the failure of the commissioners of the drainage district to complete the work of the district in so vital a part as its outlet. The point where the work on the watercourse ended, and the levee ended, to the Mississippi Eiver was only about three-quarters of a mile, whereas, the stream in its original course ran several miles before it emptied into the Mississippi Eiver. The evidence discloses that large quantities of water that in times of excessive rainfall flowed off in another direction were gathered into the drainage district and were held by its levees and carried down the stream to the point where “Section A” begins and were then allowed to flow off through the natural channel. We do not think that appellant drainage district should escape liability for the damage done to appellee’s land where caused by what, in effect, amounted to a change of the plans, by omitting to construct the outlet for the water gathered by the district within its levees and allowing it to overflow appellee’s land.

In Bradbury v. Vandalia Levee & Drainage Dist., 236 Ill. 36, the court at page 46 says: 1 ‘ The ground of distinction between corporations which are liable for the negligent or wrongful act of their agents or servants and those which are not, is that public involuntary quasi corporations are mere political or civil divisions of the State created by general laws to aid in the general administration of the government and are not so liable, while those which are liable have privileges conferred upon them at their request, which are a consideration for the duties imposed upon them. (Kinnare v. City of Chicago, 171 Ill. 332.) Neither the State, nor any part of it, is divided by the legislature into drainage districts, nor do they have public duties thrust upon them without their consent. The organization of a drainage district is for the sole and exclusive benefit of the territory within the district (Commissioners of Union Drainage District v. Highway Com’rs, 220 Ill. 176), and the lands within the district are assessed to pay the whole costs on the theory that they alone are benefited.”

Appellant contends that where the commissioners have discretionary powers and are using those discretionary powers in good faith and are acting, as in this ease, nnder the instruction of competent engineers, that neither the commissioners nor the drainage district is liable for the consequences of their acts. So far as the adoption of the plans and specifications for the work in the district is concerned, the commissioners were acting in a judicial or quasi judicial character, but when they undertook to carry into effect those plans, then they acted in a ministerial capacity and the drainage district is liable for the consequence of their acts. City of Chicago v. Seben, 165 Ill. 371; Johnston v. City of Chicago, 258 Ill. 494.

In Johnston v. City of Chicago, supra, the Supreme Court at page 497 says: “In considering the question of liability the authorities usually hold that it must be considered that a municipality acts in a dual capacity, first, in exercising its governmental functions; and second, as a private corporation, enjoying powers and privileges conferred for its own benefit. When such municipal corporation is acting within its authority, in a ministerial character, in the management of its property, it is liable for the negligent acts of its employees although the work in which they are engaged will inure to the benefit of the municipality. On the other hand, whether the municipality is exercising judicial, discretionary or legislative authority tionferred by its charter, or. is discharging a duty imposed solely for the benefit of the public, "it incurs no liability for the negligence of its officers. (2 Cooley on Torts [3rd Ed.] 1014; City of Chicago v. Seben, 165 Ill. 371; 20 Am. & Eng. Encyc. of Law [2nd Ed.] 1197; Tiedeman on Mun. Corp. secs. 338, 349.) * * * A municipal corporation acts judicially or exercises discretion when it selects and adopts a plan in the making of public improvements, but as soon as it begins to carry out that plan it acts ministerially and is bound to see that the work is done in a reasonably safe and skilful manner. City of Chicago v. Seben, supra; 4 Dillon on Mun. Corp. (5th Ed.), sec. 1741.”

In this case we hold that the commissioners after the adoption of the plans and specifications which were approved by the court in 1912 in carrying out these plans and specifications, so far as the liability of the drainage district was concerned, were acting largely in a ministerial capacity, and the drainage district would be responsible for their acts.

It was contended by appellant that its commissioners were carrying out the work of the district and that ultimately they expected to complete the work in “Section A. ’ ’ This district was organized in 1909 and plans and specifications were adopted in 1912. An additional assessment was applied for in 1914 to complete the work-in “Section A,” but this was refused by the court. The flood did not occur until August 20, 1915. We think, therefore, that appellant is not in a position to offer as an excuse as to why this outlet had not been constructed, that it still contemplates its construction.

It is next contended by appellant that the damages were excessive. This proposition is not followed up in the argument to any extent and it is not pointed out wherein the verdict is excessive. The- evidence appears to support the verdict as to the amount of the damages.

It is contended also that the court erred in its rulings on objections made to remarks of counsel in the argument to the jury. These objections do not appear in the bill of exceptions, except by way of affidavit. This is not sufficient and this manner of presenting this objection does not bring the question before the court. Mayes v. People, 106 Ill. 306; Kemper v. Town of Waverly, 81 Ill. 278; Mayville v. French, 246 Ill. 434.

Objection is also made to the remarks made by the court in commenting upon the evidence. We have examined the statement made by the court in question and are of the opinion that no possible harm could "have resulted to appellant from the remarks complained of, especially in view of the fact that the court stated to the jury that it was not attempting to influence the jury by anything that had been said.

Error is also assigned for the reason that an execution was awarded against appellant on the judgment rendered. Appellee concedes that the ordering of an execution against a municipal corporation is error and consents that this court may amend the judgment in that particular.

Finding no reversible error in the record the judgment of the trial court will be affirmed. The order of the trial court awarding execution against appellant will be set aside and held for naught.

Affirmed.