author: Mr. Presiding Justice Dibell Mr. Justice Morton W. Thompson,

text:
    William R. Ferguson et al., Appellees, v. Trustees of Schools et al., Appellants.
    Gen. No. 5543.
    1. Certiorari — what not subject to review under writ of. In an action to review a proceeding by which territory is detached from one district and attached to another, if jurisdiction existed to take such step whether it was reasonable or desirable or wise, are matters not subject to review.
    2. Certiorari- — what proper upon motion to quash. Upon a motion to quash a writ of certiorari proofs are properly heard to determine whether the Circuit Court should entertain the proceedings, or whether the writ should be barred by laches, or whether the proceedings should be treated as ratified by the silence and acquiescence of the petitioners.
    3. Schools — section 53 of article 3 of Act of 1889 construed. In detaching territory from one school district and attaching it to another the record made need not recite the jurisdictional facts.
    4. Schools' — when laches bars irregularity in detaching territory. A lapse of two years during which time the school taxes have been levied and school debts incurred constitutes such laches as will bar an objection predicated upon the fact that one of the signers of the petition to detach was one of the trustees who voted for the detachment, etc.
    5. Schools — when amendment of records by trustees proper. After certiorari filed and summons served but before answer made, school trustees may properly amend minutes of a meeting challenged by certiorari so as to cause the same to speak the truth.
    6. Presumptions — as to identity of persons. There is no conclusive presumption of law that a signer of a petition and a trustee voting thereon are the same person merely because they bear the same name.
    Thompson, J., dissenting.

      Certiorari. Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed April 25, 1912.
    Howard E. Leach and Charles D. Dibell, for appellant.
    Lester H. Strawn and Charles F. Hanson, for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion, of the court.

William E. Ferguson and others, residents and taxpayers in territory which prior to April 5, 1909, was within school district No. 68, in Grundy county, Illinois, filed a petition in the Circuit Court of Grundy county, on February 18, 1911, for common law writs of cerT tiorari to bring before the court transcripts of all records, papers, documents and files relating to the proceedings whereby certain territory had been detached from said school district 68 and added to school district No. 83 in Kankakee county, adjoining’ said district 68 on the east, in order that the court might inspect said records and proceedings, and, if they were found to be illegal, might order the same set aside. It appears from the records that said districts 68 in Grundy county and 83 in Kankakee county are divided by the county line; that prior to the regular meetings, in April, of the trustees of schools in the town in Grundy county wherein said district No. 68 was, and in the town in Kankakee county wherein said district No. 83 was, petitions had been duly filed with the clerks of the boards of trustees of schools in each of said towns, to detach certain territory from said district 68 in Grundy county and to attach the same to said district 83 in Kankakee county; and that at the regular meetings in April, 1909, action had been taken upon said petitions; and that appeals therefrom in each case had been taken to the superintendent of schools of Kankakee county, and that he had invited the superintendent of schools of Grundy county to meet with him at Kankakee, as the statute provides, and that they did meet and were unable to agree; that the county judge of Kankakee county was then called in, as the statute provides, and these three officers constituted a board of appeal which heard both of said appeals and entered an order dismissing the appeals and confirming the action of the board of trustees of said two towns in transferring said territory, the new district thus formed being afterwards known as Union School District No. 96. This petition in the Circuit Court attacked the validity of these proceedings, and the board of trustees of the town in Grundy county, and the board of trustees of the town in Kankakee county, and the superintendent of schools of Grundy county, and the superintendent of schools of Kankakee county, and the county judge of Kankakee county and the county clerk of each of said counties, were made respondents. The Circuit Court ordered the writs of certiorari to issue and they were issued and served, and the trustees of schools of the town in Kankakee county and the superintendent of schools of Kankakee county and the county judge of Kankakee county and the county clerk of Kankakee county entered their motion to quash the writs of certiorari. This motion was based on the alleged laches of the petitioners, and the acquiescence of the petitioners in the order sought to be reviewed for a long space of time and the levy of taxes for school purposes in said union school district No. 96; and the collection and expenditure of said taxes; the holding of school elections and the election of school officers in said district No. 96; and the incurring of debts therein for school purposes which are still unpaid; and also that all the proceedings before said board of appeals were in Kankakee county, and that they were not subject to review in the Circuit Court of Grundy county; and that the petitioners had a remedy by appeal to the county superintendent which they did not exercise. The motion to quash the writs was heard upon proofs presented and was denied, and the proofs were preserved by a bill of exceptions. Thereafter returns were made to the writ by all the defendants thereto, and upon a hearing the proceedings were quashed, and said territory so attempted to be detached from school district No. 68 was declared not to be a part of school district 83, but to be a part of school district No. 68. This is an appeal by the defendants from said judgment of the Circuit Court.

The petition for a certiorari contained allegations and sought to raise issues which cannot be tried on certiorari. It was charged that the west boundary line of the new district in Grundy county was irregular and unsuitable and that this change of territory was made for the private pecuniary advantage of certain owners of lands, and that it was an attempt to gerrymander the district and that there was a conspiracy in which certain persons took part. The record does not disclose any adequate foundation for these charges. The obvious purpose of the unusual shape was to leave both school houses in district No. 68 so that the residents of No. 68 as changed should not be able to complain that they had been deprived of a school building. The petition to change the boundaries was signed by actual residents and not by non-resident owners. But these charges could not be investigated under a writ of certiorari. If the jurisdiction of the board of trustees of each of said two towns was legally invoked and if they proceeded according to law, their action and whether it was reasonable or desirable or wise were matters not subject to review under a writ of certiorari. Upon the motion to quash the writs of certiorari, proofs were properly heard to determine whether the Circuit Court should entertain the proceedings, or whether the writ should be barred by laches, or whether the proceedings should be treated as ratified by the silence and acquiescence of the petitioners, as in Trustees v. School Directors, 88 Ill. 100, or whether any adequate excuse for delay had been stated in the petition or shown by the proofs, as in Clark v. City of Chicago, 233 Ill. 113, where a delay of eighteen months, not satisfactorily explained was held to justify quashing the writ. City of Chicago v. Condell, 224 Ill. 595. But when that motion had been denied, the case was to be tried solely upon the returns; and if the proceedings were legal and regular and in conformity to the statute then it was not in the power of the court to quash them because of any lack of wisdom in the action taken by the lawful authorities, nor could the motive of any of the parties be inquired into. Scheiwe v. Holz, 168 Ill. 432; Joyce v. City of Chicago, 216 Ill. 466; Deslauries v. Soucie, 122 Ill. App. 81, and 222 Ill. 522.

Passing by the questions raised upon the motion to quash the writs of certiorari, we come to consider the state of the record. The return of the trustees of the town of Grundy county set forth the petition to detach the territory, the notice to the directors of district No. 68 of the pendency of said petition, the affidavit of service of said notice and of a copy of the petition upon the directors, and the minutes of the meeting held at the time appointed by law resulting in the adoption of a motion to grant the prayer of the petition. The minutes of the said school trustees recited that the petition was read by their clerk and the proof of service of the same upon the directors was read, and that these trustees examined said papers and found that in said petition and in the making of such service all the provisions of the law had been complied with. It is contended that this record is defective because the trustees did not recite in their record, or their clerk making that record did not recite, the various facts which constituted a compliance with the law. These proceedings took place while the act of 1889 concerning schools was in force. Section 53 of Article 3 thereof provided: “After the trustees shall consider the petition, no objection shall be thereafter raised to its form, and their action shall be prima facie evidence that all the formal requirements have been complied with.” The same language is used in section 54 of the present school law of 1909, except that the word “formal” is not contained in the present act. In Logue v. Batterton, 247 Ill. 605, it was held under this later section, that while it might he the better practice for boards of trustees to make a record of their jurisdictional findings, still this is not necessary to the validity of their action if they did, in fact, have jurisdiction; and that upon appeal to the county superintendent the decision of the board of trustees that it did or did not have jurisdiction is not conclusive upon the county superintendent; that the question whether the board had jurisdiction depends upon whether the requirements of the statute have, in fact, been complied with and not upon what the board decided upon that question; and that the county superintendent upon appeal had authority to do anything that was necessary to enable' him to determine whether the jurisdictional requirements of the statute had been complied with before presentation of the petition to the trustees, and that his decision is final. Here the papers filed by the board of trustees of the town in Grundy county as a part of their return, in connection with their proceedings, show in fact that they had jurisdiction, and there is nothing in the record to show that they did not have jurisdiction, so that their jurisdiction is supported both by the presumption created by the statute above quoted and also by the papers transmitted as part of their return; and moreover the order of the board of appeal found in detail all the facts which established that the board of trustees of the town in Grundy county did have jurisdiction. One of the signers of the petition addressed to that board bore the same name as one of the trustees of that town, and such trustee voted to grant the prayer of the petition, and without his vote the petition would not have been granted. It is contended by appellees that his vote could not be counted because that would make him decide his own cause, and therefore the petition was not granted by the board of trustees of the town in Grundy county, under the authority of People v. Commissioners of Highways, 240 Ill. 399. In People v. Crowley, 250 Ill. 282, where the proceedings assailed were begun in December, 1904, and resulted in action in January, February and March, 1905, and the attack upon their validity was begun in August, 1905, and where a similar point was raised against the validity of the proceedings, it was held that it was too late to raise it. Here almost two years had passed, school taxes had been levied and school debts had been incurred by the new district, and it would seem that under the doctrine of laches the appellees ought not to be permitted to have that record quashed on that ground now; further, this being a certiorari proceeding is to be tried by the record alone. There is no conclusive presumption of law that the signer and the trustee are the same person, merely because they bear the same name. Instances are not infrequent where father and son, grandfather and grandson, uncle and nephew, bear the same names and live in the same locality. Whether this petitioner and this trustee are the same person or different persons is a question of fact. If this were quo warranto, as in People v. Crowley, supra, or was any other proceeding where issues of fact are formed and tried, the fact that the trustee was or was not the person who signed the petition could be averred and proved, but in certiorari the fact cannot be entered into, and the record ought not be defeated on that ground. It cannot be the law that if the petitioner and' the judge who tries his cause bear the same name the judgment is void on its face unless the record specially recites that they were different persons. But if we are wrong in this view and if the vote of said trustee is rejected, then, as only one competent vote was cast for the petition and one against it, this amounted to a denial of the petition. There was an appeal from the order of said trustees to the county superintendent of Kankakee county taken by Fred E. Crane. It is contended that Crane was not entitled to appeal because the name,- Fred E. Crane, had been signed to the petition for detaching the territory. If the petition was denied, then Crane certainly had a right to appeal. But it was not necessary that there should be an appeal from the order of each board, and there was an appeal from the proceedings of the board of trustees of the town in Kankakee county to which no objection is made, and an appeal from the action of the board of trustees in either town carried the entire record of both towns to the county superintendent of Kankakee county for review. If, therefore, the person who signed the petition and the trustee who voted to grant its prayer in the town in Grundy county were the same person, and if the result was that the prayer of the petition was, in fact, not granted, and if that defect can be considered at this late day, nevertheless, by the appeal the record was carried to the county superintendent of Kankakee county effectively for review; and the board of review in its final order expressly directed “that the said territory, namely” (describing the detached territory in detail) “be and the same hereby is detached from said district No. 68 in Grundy county, Illinois, and added to said district No. 83 in Kankakee county, Illinois, and made a part thereof.” The statute makes this decision final.

The return of the trustees of the town in Kankakee county shows ■ that in their proceedings as originally written at the regular semi-annual meeting in April, they found the petition signed by the required number of voters and accepted the petition and placed it on file, and that a remonstrance was presented by one Andrew Wilson of District No. 83 which was also accepted and filed; and that an appeal was taken from the decision of the trustees; but the record as originally written did not show what that decision was; and that after the petition for a writ of certiorari in this case was filed, and service was had upon said trustees, and before they had made their return, they held a special meeting at which all the trustees were present, and passed a resolution wherein they recited that at the regular meeting in question they found the various jurisdictional facts and unanimously granted the prayer of the petition; and they directed the clerk to correct and amend and supplement said former record to conform to the facts thereinbefore recited, by reciting certain things, including the granting of the petition and the appeal by Andrew Wilson, which resolu, tion was adopted by a unanimous vote. They also made a part of their return the said minutes of the said meeting of April 1909 as amended, containing all these facts in full. It is contended that they had not power to make this amendment at that time. The same question arose in a certiorari case in Board of Education v. Trustees of Schools, 174 Ill. 510. That was a proceeding to determine the validity of the action of certain trustees of schools in detaching territory from one district and adding it to another, and the record as it existed at the time that the petition for certiorari was filed showed such a petition presented to the board of trustees, and there was a motion that it be granted, but it did not show that that motion had been voted upon or carried j and at a subsequent meeting this defective record had been read and approved. At a later meeting it was voted to amend the record so as to make it show that the motion was put and carried, and this was done; but the record was still defective, and more than a year later and after there had been a change in the personnel of two of the three members of the board of trustees, and after the writ of certiorari had been issued and presumably served, the clerk was ordered to make a further amendment to show jurisdiction and regularity in the granting of the prayer of the petition. The court held that the board of trustees had power to make these amendments. The court said: £<It has not been the rule in this court to exact of public officers of the quasi municipalities the highest degree of accuracy and formality in the discharge of their duties, for the reason that to do so would result in, injury to the public. If it be said that there was an unreasonable lapse of time between the proceedings and the recording thereof, it may also be said that there was unnecessary delay in the attempt on the part of the petitioners to set aside the re-districting.” By examining the opinion in that case in the Appellate Court, in Board of Education v. Trustees of Schools, 74 Ill. App. 401, it will be found that the proceedings assailed were taken on: April 6, 1896; that the petition for certiorari was filed March 24,1897, and that the last amendment was made on April 27, 1897, while the petition for certiorari was pending. This case, therefore, sustains the action of the board of trustees in making this amendment. So far as that case holds the recital of the jurisdictional facts in detail in the record of the board of trustees to be essential, we regard that view as otherwise disposed of by the ease of Logue v. Battelton, supra. Moreover, the board of appeal in the case before us set out in detail the petition addressed to the said trustees of the town of Kankakee county and proof of due service and notice thereof, the protest of Andrew Wilson and the original record and the notice of appeal of Andrew Wilson, all of which had been set up upon the appeal, and these papers show that the said board of trustees had papers and files by which to make the amendment. The original record showed that they made some decision, and the notice of appeal which the board of trustees accepted showed that the decision granted the prayer of the petition to detach the territory. Moreover, said board of appeal found in detail that said board of trustees did grant the petition for this change of territory. We are therefore of opinion that it clearly appears that the trustees of the town in Kankakee county did grant the petition after having acquired jurisdiction so to do, and that an appeal was duly taken to the county superintendent of Kankakee county.

The return of the superintendent of Kankakee county shows further that he and the county superintendent of Grundy county were unable to agree and that they then called in' the county judge of Kankakee county as provided by law, that they consolidated the two appeals and heard them, and declared said territory detached from district No. 68 in Grundy county and added to district No. 83 in Kankakee county, as hereinbefore stated, and that they thereafter transmitted notices to the clerks of each of the two boards of trustees, including their order detaching said premises from the one district and adding it to the other. After this new district had been thus finally formed by the action of the board of appeal, some of the provisions of the statute for the filing of a map by the trustees with the county clerks were not fully complied with. It was held in School Directors v. School Directors, 135 Ill. 161, that failure of township trustees to file with the county clerk a map showing the lands embraced in a new district will not destroy its corporate existence; and this is in harmony with the principle laid down in People v. Niebrugge, 244 Ill. 82.

A careful search of this entire record shows that not only is jurisdiction presumed from the action of the several boards of trustees, but also that a proper and sufficient petition, sufficiently signed, was presented and acted upon by the board of trustees of each town; and that an appeal was taken from the action of each board, one of which appeals is not subject to any criticism; that these appeals went to a board of appeal which was duly constituted pursuant to law; and that the board reviewed the entire subject and ordered the change of territory, which decision the statute makes final. We are of opinion that this action ought not to be set aside under a writ of certiorari because of slight inaccuracies of the officers in making the entries in their records. We think it clear that every requirement of the statute was, in fact, observed.

The judgment is therefore reversed and the cause is remanded, with directions to the court below to quash the writs and dismiss the petition at the costs of the petitioners.

Reversed and remanded.'

Mr. Justice Morton W. Thompson,

dissenting.

School District No. 68 lies in Township 31, Eange 8 in Grundy county, and District No. 83 adjoins it in Township 31, Eange 9 in Kankakee county, Illinois. At the regular April meeting 1909 of the trustees, a petition to detach a part of District 68 and'attach it to District 83, was filed with the trustees of each of - said townships, as required by the Statute, and the prayer of said petitions was granted. An appeal was prayed and granted from the decision of the trustees in each township to the county superintendent of schools who failing to agree, called in the county judge of Kankakee county, and upon the hearing the action of said trustees was confirmed on April 26, 1909, and said District No. 83, with said added territory was designated as District No. 96, February 18, 1911. Appellees filed in the Circuit Court of Grundy county their petition for a writ of certiorari to review said proceedings.

Defendants moved to quash the writ and dismiss the petition. Evidence was heard and said motion was denied, and defendants excepted, and upon being ruled to, made their several returns to said writ. Upon the hearing said proceedings were ordered quashed and held for naught, and defendants excepted and appeal to this court.

The return of the trustees of Township 31, Eange 9, in, Kankakee county, in so far as it concerns the issues in this case, is as follows (being copy of record):

“April 5, 1909, a petition signed by the required number of voters, asking that a certain territory of Grundy county, Illinois, described in petition, be attached to District Number 83, in Township Thirty One Kankakee County, Illinois, was placed on file with the treasurer on March 13th, 1909, for the trustees’ consideration. (Copy on opposite page) A remonstrance was presented by Andrew Wilson of District Number 83 against said petition. Motion moved and seconded that the remonstrance be accepted and placed on file. Carried. Motion moved and seconded that the petition be accepted and placed on file. Carried. An appeal was made against the decision of the trustees on the above petition. Motion moved and seconded that the appeal be accepted and placed on file. Carried.”

This record is signed, “Trustees, A. E. White, Michael Joyce, Frank Meadon.”

The return also shows that at a special meeting held March 9,1911 (after this suit was brought), there were present Michael Joyce, President, A. E. White and S. Gf. McLane, trustees, and that trustee White offered a three page resolution which on his motion seconded by trustee McLane, was adopted directing the clerk “to correct and aménd and supplement said record to conform to the facts hereinbefore recited by inserting in the record of said meeting,” etc., the object of which was to correct the minutes of said regular meeting so as to show all jurisdictional facts, and that the prayer of said petition was granted by a unanimous vote of the trustees, etc. And thereupon the clerk amended said minutes as in and by said resolution he was directed, and said amended minutes set out in said return.

We do not understand that the records can be changed in that way. “The authority of the board to make such an order, if it exists, does not depend upon the personal recollection of the individual members of the board, but upon the knowledge of the clerk, or such files, minutes or memoranda which put him in possession of knowledge of what actually transpired.” Board of Education v. Trustees, 174 Ill. 510.

The return of the trustees of Township 31, Eange 8 in Grundy county in so far as it concerns the issues in this case,, is as follows (being copy of minutes of their April meeting): After reciting that at the conclusion of the regular business there came on for consideration the petition in question, it proceeds:

“And thereupon said petition was read by the clerk together with the proof of service of the same on the directors of said School District Number 68, and examined by the trustees, and it appearing that in said petition and in making proof of service aforesaid all provisions of the law had been complied with, it was moved by trustee W. D. Howland, that said petition be granted and the motion was duly seconded by trustee H. A. Eversole. Thereupon after due consideration, on the order of the president, the roll was called by the clerk on the said motion, the trustees voting as follows: David Abram, No. W.D. Howland, Yes. H. A. Eversole, Yes. Thereupon it was declared by the president that said motion had been carried and that the said petition had been duly granted.”

This record does not attempt to state the facts, but states the conclusion of the trustees, which is not sufficient. Highway Commissioners v. Smith, 217 Ill. 250; Troxell v. Dick, 216 Ill. 98. The office of the common law writ of certiorari is to bring up the record of a proceeding from an inferior to a superior tribunal. “When the return is made, the superior tribunal tries the case upon the record alone, and not upon the allegations contained in the petition for the writ or on facts not contained in the record so returned.” Troxell v. Dick, 216 Ill. 98.

££ * * * it has invariably been decided in certiorari that the record of the trustees must show the various jurisdictional facts * * * ” Southworth v. Board of Education, 238 Ill. 190, 198.

Appellants insist that because of the delay in applying for the certiorari in this case, plaintiffs are barred from the relief sought. The doctrine of laches has been applied in many cases of certiorari, where by reason of lapse of time, acquiescence of the parties complaining, incurring debts, levying taxes, etc., it would have been an abuse of the sound legal discretion of the court and a great public detriment to have quashed the proceedings. “The writ of certiorari is not granted as a writ of right, and may he granted or denied in the discretion of the court, according to the showing made in each particular case.” Deslauries v. Soucie, 222 Ill. 522. “It is true that mere lapse of time, alone, short of the limitation for the prosecution of a writ of error, will not bar the issuing of the common law writ of certiorari; but where a detriment or inconvenience to the public will result, a party is required to act speedily in making his application and any unreasonable delay will warrant the refusal of the writ.” City of Chicago v. Condell, 224 Ill. 595.

The record in this case shows that no debts or obligations of any kind, except those necessary for conducting the schools, have been incurred by said District No. 96. That the taxes have been levied and collected for that purpose alone. That great harm and inconvenience will and has resulted to the portion of District No. 68 remaining after the portion so detached, in that the amount of taxable property therein, at the rate allowed by law to be levied for educational purposes, will produce only about one-half of the funds necessary to conduct the schools therein. Schlosser v. Com. of Highways, 235 Ill. 214, 216.

I do not think the case of Logue v. Batterton, 247 Ill. 605, sustains the construction placed upon it by the majority opinion in this case. The return of the county judge and two superintendents of the order entered by them recites their finding of certain ultimate facts, but the return does not show the finding of any evidentiary facts, from which the trial court could see that said trustees of schools, had in fact jurisdiction to make the orders they did upon said petitions, and as was said in the Logue case above at page 612: “Of course, if the trustees had no jurisdiction to entertain the petition then the county superintendent should have no jurisdiction * * * ”

I think the judgment of the trial court was right and should be affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    Sublette Exchange Bank, Appellee, v. Martin J. Fitzgerald, Appellant, et al.
    Gen. No. 5561.
    1. Appeals and errors — effect of failure to abstract pleadings. If pleadings are not abstracted the Appellate Court will assume that they are sufficient to support the judgment.
    2. Negotiable instruments — rule requiring direct forwarding defined. By requiring that a check be forwarded directly to the bank upon which it is drawn the rule does not mean that the check shall be sent in a direct line as a bird might fly, but by the usual commercial route.
    3. Negotiable instruments- — how proof of demand for payment, etc., made. Demand for payment, refusal, protest and notice of protest may be proved by the certificate of a notary public under his notarial seal.
    4. Negotiable instruments — to what classification check belongs. Held, that the check in question in this case was a foreign bill of exchange.
    5. Negotiable instruments — effect of illegible endorsement. An illegible endorsement excuses notice of protest.
    6. Judicial notice — of what taken. The court will take judicial notice of the geographical features of Illinois and other states and countries so far as the same may be fairly presumed to be within the general knowledge of persons of ordinary intelligence living in Illinois.
    Assumpsit. Appeal from the Circuit Court of Lee county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed April 25, 1912.
    Brooks & Brooks, for appellant.
    Wooster & Edwards, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Martin J. Fitzgerald appeals from a judgment of the Circuit Court of Lee county against himself and Granville Miller as endorsers of a check dated at Plainview, Texas, November 3, 1909, and drawn on the First National Bank of Plainview, Texas, by Harrison Miller, to the order of Granville Miller. The pleadings are not abstracted and we therefore assume that they are sufficient to support the judgment. The record shows that Miller was defaulted and that appellant pleaded non assumpsit and a verified plea denying that he made and delivered the writing declared upon. Appellant testified that he did not endorse the note and was not in the bank when it was endorsed and cashed. There is a clear preponderance of the proof that on November 6, 1909, appellant and Granville Miller came into the Sublette Exchange Bank together; that Miller endorsed the check and presented it to the clerk in charge, who said he did not know him; that Miller said appellant would identify him; that the clerk asked appellant if he would endorse the check; that he said he would and took it and wrote upon the back thereof and handed the check back .to the clerk and the clerk handed to appellant the amount of the check and the parties went away, and, so far as the clerk knew, appellant took the money away with him. On this subject the verdict against appellant was justified by the proof.

It is contended that appellant is released because the check was not forwarded to Plainview, Texas, by the most direct route nor with sufficient promptness. The check was cashed in the afternoon of Saturday, November 6th, at Sublette, in Lee county, nearly due west of Chicago. Appellee sent it to the Corn Exchange Bank of Chicago that afternoon or evening, where it was received on Monday, November 8th, and on the same day it was sent by that bank to the Fort Worth National Bank of Fort Worth, Texas. It was received there on November 10th, and sent to the First-National Bank of Plainview, Texas, where it was protested on November 13.

In Travers v. T. M. Sinclair & Co., 122 Ill. App. 203, we said: “As to what is a reasonable time for presentment of an indorsed check and notice of dishonor in order to hold the endorser, depends to some extent upon circumstances and the conditions existing. If a check is received in the same town as the hank on which it is drawn is located, the law is that it must be presented either on the same day, or not later’ than the next. If the check is received in one place, drawn on a bank at some other place, then it must he forwarded, not later than the day after it is received, for presentment to the bank on which it is drawn, and this appears to mean that it must he forwarded directly. Forwarded by a circuitous route may, as a general rule, he said to constitute negligence.”

We followed this rule in First National Bank of Chadwick v. Mackey, 157 Ill. App. 408. Appellant relies upon these cases. A comparison of the facts there with those in this case will show that they are entirely unlike. By requiring that the check be forwarded directly to the hank upon which it is drawn, the rule above stated does not mean that it should he sent in a direct line as a bird might fly, but by the usual commercial route, and the proof here shows that this was sent by the customary route. We cannot say that it was improper to send it to Chicago. A small hank, as this was, would not be likely to have a correspondent at Fort Worth. No proof need he introduced of any fact of which the court will take judicial notice, and the court will take judicial notice of the geographical, features of this and other states and countries, so far as the same may he fairly presumed to he within the general knowledge of persons of ordinary intelligence living here. Beynolds’ Stephen’s Digest of the Law of Evidence, Arts. 58 and 59. The court therefore takes judicial notice that Plainview is in the Panhandle of Texas, and that Forth Worth is the nearest large city and is on a railroad line having direct connection with Chicago, and that, according to recent maps before the court, there is no railroad connection to Plainview, and that Plainview is a long distance from Port Worth. There certainly was no delay between Sublette and Port Worth, and we are of opinion that there appears to have been no unreasonable delay between Port Worth and Plainview, and that, if the court had given the second instruction which appellant requested and the court refused and the jury had thereunder found for appellant, the verdict could not have been sustained.

The demand for payment, refusal, protest and notice of protest was proved only by the certificate of protest by a notary public of Hale county, Texas, under his notarial seal. It is argued by appellant that that proof was incompetent. Prior to the Negotiable Instruments Law of 1907 there seems to have been a distinction in Illinois between a check and a hill of exchange. The instrument here sued upon is governed by the latter Act. Section 184 thereof, omitting one word, evidently inserted by mistake, is as follows:

“A check is a hill of exchange drawn on a hank payable on demand. Except as herein otherwise provided, the provisions of this act applicable to a bill of exchange payable on demand apply to a check.”

Section 128 of said Act is in part as follows:

“An inland hill of exchange is a hill which is, or on its face purports to he, both drawn and payable within this State. Any other hill is a foreign bill.”

This is in accordance with the Law Merchant. Buckner v. Finley, 2 Pet. 586. Therefore, under the statute now in force and in force when this check was drawn in Texas, payable in Texas and was endorsed in Illinois, this is a foreign hill of exchange. Under section 88 of said Act notice of dishonor must be given to the endorser to charge him: .Under Article IV of said Act a foreign hill of exchange must he protested for non-payment, and the protest must be annexed to the hill or must contain a copy thereof, and must be under the hand and seal of the notary making it and must contain certain facts therein specified. It is the obvious meaning of that Article that the certificate of protest, so required to be annexed to the bill under the hand and seal of the notary making it, is intended to be evidence of the facts therein required to be stated. Our Negotiable Instruments Law is intended as a codification of the Law Merchant. By the Law Merchant the certificate of protest of a foreign bill of exchange was competent evidence, and, in many jurisdictions, if the certificate was in existence and obtainable, it was the only evidence of the dishonor of the bill. Bigelow on Bills, Notes and Cheques, 2nd Ed. 130; Administrator of Townsend v. Lorain Bank, 2 Ohio St. 345; Ocean National Bank v. Williams, 102 Mass. 141. This is the rule in Maine under a statute. Warren v. Warren, 16 Me. 259; Lewiston Falls Bank v. Leonard, 43 Me. 144. Appellant relies upon Vaughan v. Potter, 131 Ill. App. 334. That case was on a promissory note payable in Missouri, and was decided before our Negotiable Instruments Law was enacted. It was there held that promissory notes and inland bills of exchange cannot be protested under the Law Merchant, but the principle governing the case before us is there expressly distinguished in the following language': “A foreign bill of exchange must on dishonor be protested to hold the indorsers, and the states of the American Union are foreign to each other for the purposes of this law. The notarial certificate of protest by a foreign notary is, in the case of such instruments, not only evidence of the presentment, dishonor and notification of indorsers, but frequently the only evidence allowable by the law merchant.”

We are therefore of opinion that protest, nonpayment and notice were properly proved by the notary’s certificate of protest under his hand and official seal,

That which appellant wrote on the hack of this check proved to he illegible. The notary sent a notice to the name by which he interpreted that writing, bnt it was not the name of appellant and did not reach appellant. The marks upon the back of the note made by appellant have been presented to the court by a fac-simile as near as the clerk could make it, and it cannot be read. Appellee, under the proofs, had a right to rely upon it as the signature of appellant but we are of opinion that under section 158 of the statute aforesaid notice to appellant was excused by the fact that his endorsement on the back of the check was illegible.

The judgment is therefore affirmed.

Affirmed.


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    Frances Sehnert, Appellant, v. Schipper & Block, Incorporated, Appellee.
    Gen. No. 5570.
    1. Appeals and errors — when judgment appealed from not deemed to have been entered at the instance of the party appealing. If the court fails to enter a judgment as it was the duty of the court to do, a party directing the court’s attention to such omission in order that an appealable order may he obtained is not deterred from reviewing the judgment entered.
    2. Pleading — how instruments relied upon must be set forth. An instrument relied upon in a common law pleading must he set out therein, either according to its legal effect or in haec verba. Common law pleading cannot he done by exhibits. If, however, an instrument is set forth by way of an exhibit the point should he raised by special demurrer.
    3. Pleading — how question of abandonment of cause of action stated in original declaration determined. The question whether the cause of action stated in one declaration has been abandoned by filing an amended declaration must depend upon a comparison of the amended declaration with the original.

      4. Statute of Limitations — what nomsuit within meaning of section 25. If, when a cause is regularly called upon the docket, and the plaintiff not appearing, the court dismisses his action, an involuntary non-suit, within the meaning of section 25 of the Statute of Limitations, is deemed to have been suffered.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. N. E. Wokthington, Judge, presiding.
    Heard in this court at the October term. 1911.
    Reversed and remanded with directions.
    Opinion filed April 25, 1912.
    Mansfield, Cowan & Boulware, for appellant.
    Stevens, Miller & Elliott, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Each count of every declaration filed by appellant in the matter here involved shows that appellee carried on a department store in a building coming to the line of Adams street in the city of Peoria; that in front of the store and extending between three and four feet into the street was a vestibule or lobby some 20 feet long; that the ingress and egress to and from the store was through two doors, one at each end of said vestibule; that said vestibule doors were of wood and glass and swung each way on hinges; and that, as appellee was coming out of the store and was about to pass out through one of those vestibule doors, it swung against her and knocked her down and seriously injured her. The injury was inflicted on December 31, 1906. She began this suit on April 29, 1910, to recover damages for said injuries, and on said day filed a declaration consisting of seven counts. ■ Appellee demurred thereto and the demurrer was sustained. On May 23, 1910, appellant filed an amended declaration, consisting of seven counts. Appellant filed thereto a general and special demurrer. This demurrer was sustained as to the first, fourth and fifth counts and appellant elected to abide by said counts. The demurrer was overruled as to the second, third, sixth and seventh counts and appellee filed thereto a plea of not guilty and a plea that the causes of action set out in said second, third, sixth and seventh counts did not accrue to the plaintiff within two years before the commencement of the suit. To the latter plea appellant filed an amended replication, hereinafter called the replication, attempting to set up a former suit for the same cause of action and an involuntary non-suit therein and the commencement of this suit within one year thereafter. Appellee filed a general and special demurrer to said replication and said demurrer was sustained and appellant prayed and was granted an appeal therefrom at the March term of court, 1911. Thereafter appellant discovered that no judgment had been entered, and therefore there was nothing from which to appeal (Seghetti v. Berry Coal Co., 164 Ill. App. 488), and at the September term, 1911, she asked the court to render judgment, and the court thereupon rendered judgment on the demurrer in favor of appellee against appellant, and from that judgment this appeal is prosecuted. Appellant contends that the court erred in sustaining the demurrer to the replication and in sustaining the demurrer to the first, fourth and fifth counts of the amended declaration. Appellee contends that appellant procured the judgment in the court below and therefore cannot complain; that the dismissal of the former suit set up in the replication was not an involuntary non-suit and does not avoid the Statute of Limitations; that the causes of action set up in the original declaration, filed in the original suit, were abandoned by filing an amended declaration in said suit after a demurrer to the original declara-' tion had been sustained; and that the causes of action stated in the amended declaration in this suit are new causes, not stated in the amended declaration in the original suit.

When the court sustained the demurrer to the replication and appellant did not desire to amend, it was the duty of the court to enter a judgment, and when, at the next term of court, it was discovered that no judgment had been entered, it was proper for appellant to ask to have a judgment rendered, so that she might appeal. She did not ask that the judgment should be against her, but only that a judgment should be entered. She did not lose her right to appeal therefrom.

The replication shows that the injury was on December 31, 1906; that the original suit, known in this record as No. 881, was begun on August 30, 1907, and on that day a declaration was filed therein, a copy of which declaration was marked “Exhibit A,” and attached to and made a part of the replication; that a demurrer thereto was sustained and leave was given to file an amended declaration; that on May 12, 1908, and within two years after the injury, appellant filed an amended declaration, a copy of which declaration was marked “Exhibit B” and attached to the replication as a part thereof; that, at the March term, 1909, a general order was entered in said court that all cases up to No. 1082 not placed for trial, and issue joined, would be dismissed for want of prosecution at the first call of the May term, 1909; that, on May 13, 1909, an order was entered in various cases, including No. 881, wherein it was found that the cause had been reached on the peremptory call of the docket and no one appearing to prosecute the same, and it was ordered that the same be dismissed for want of prosecution. The replication alleged that thereafter at said term appellant moved to vacate said judgment and said motion was overruled, and that at a later term, it appearing that the clerk in writing up the proceedings, had omitted the word “incorporated” from the name of the defendant in the title of the cause, appellant procured an order for the correction of said records by inserting that word in the title of the case. An instrument relied upon in a common law pleading must be set out therein, either according to its legal effect or in liaec verba. Common law pleading cannot be done by exhibits. Hart v. Tolman, 1 Grilm. 1; Thompson v. Kimball, 55 Ill. App. 249; Chicago Portrait Co. v. Chicago Crayon Co., 118 Ill. App. 98. We are of opinion, however, that this objection must be raised by special demurrer, and this was not one of the grounds specified in the special demurrer to the replication. We refer to this to warn attorneys of the practice, but in the absence of an assignment of this as one of the special causes of demurrer, we shall treat exhibits “A” and “B” as if properly set out in the amended replication.

Paragraph 25 of Chapter 83 of the Eevised Statutes concerning Limitations provides that in any of the actions specified in that Act, if the plaintiff be non-suited, he may commence a new action within one year after such judgment. This means a non-suit as at common law, or an involuntary non-suit. Boyce v. Snow, 187 Ill. 181. In Spring Valley Coal Co. v. Patting, 210 Ill. 342, a second suit for a personal injury, the Statute of Limitations was pleaded and the replication showed a prior suit begun before the Statute had run, and that it was dismissed for want of prosecution, and that the second suit was begun a few days later; and the judgment dismissing the former suit for want of -prosecution was treated as an involuntary non-suit. Boyce v. Snow, supra, is to the same effect, and one of the examples of an involuntary non-suit there given is “when the plaintiff on being called when his case is before the court for trial, neglects to appear.” So, in Delano v. Bennett, 61 Ill. 83, the court said:

“If, when a cause is regularly called upon the docket, the plaintiff do not appear, the court should dismiss the suit for want of prosecution, and render judgment as in case of non-suit.” This therefore was an involuntary non-suit.

Appellee’s counsel contends that when a demurrer has been sustained to a declaration and the plaintiff files an amended declaration, he thereby abandons the cause of action stated in his original declaration and it is out of the case for every purpose, and he cites to support that position, besides many other authorities, George B. Swift & Co. v. Gaylord, 126 Ill. App. 281. This is a misapprehension. We there said that the original declaration “still remained in the record as a test to determine whether future declarations were merely enlarged statements of the same cause of action set forth in the original declaration or were based upon other causes of action, but it was no longer in the case for the purpose of framing or trying issues thereon.” We are of opinion that the other cases relied upon by appellee are consistent with that view. An amended declaration may be or may not be the statement of a new cause of action. In one of the cases cited the original declaration was based upon common law negligence, while the amended declaration was based upon the wilful violation of the Mining Act. Manifestly, that amended declaration abandoned the common law liability. But it often happens that the purpose of the amended declaration is to state more perfectly the cause of action which has been imperfectly stated in the original declaration, but which nevertheless is stated and relied upon, though imperfectly, in such original declaration, or a count of the original declaration may have perfectly stated two causes of action and a demurrer may have been sustained thereto because it was double; and the amended declaration may have been for the purpose of stating each of those causes of action in a separate count, and thereby avoiding the duplicity. The question whether the cause of action stated in one declaration has been abandoned by filing an amended declaration must depend upon a comparison of the amended declaration with the original.

The declarations are very long and the charges of negligence must be stated here briefly. The location of the store and the street and the vestibule and the swinging doors and the manner in which appellant was struck and the nature of her injuries and that she was in the exercise of due care are contained in each count and are not materially variant.. Some counts charged that appellee set the door in motion, and others that appellee set it in motion by a person passing out just ahead of appellant. The first count of the original declaration charged that appellee unlawfully and improperly erected and maintained said lobby on a public highway, and that, in passing out of said lobby, appellant was struck a violent blow by a swinging door, a part of said lobby, then and there violently set in motion. The second count of said original declaration charged that appellee improperly erected and maintained a lobby on said public highway, and that said doors were constructed of heavy oak timber and plate glass and were of great and excessive weight, and that it was the duty of appellee to maintain them with proper safety appliances to make the same reasonably safe for persons passing in and out of said lobby, and that appellee negligently attached to each of said doors a strong and powerful spring, which caused said doors when opened rapidly to swing violently back and forth, and that, as appellant was passing out, one of said doors was violently set in motion and this caused the other door to violently open, and it struck and threw down appellant. The first count of the amended declaration in the original suit charged that appellee unlawfully erected and maintained said lobby oh the public highway, and described said swinging doors and their material and great weight, and the duty of appellee to so construct and maintain them as to make the use of the same reasonably safe for persons passing in andcout, and that appellee negligently attached to each of said doors an unreasonably strong and powerful spring, which caused said doors when open to swing back and forth with unreasonable violence and rapidity; and that appellant was there on the invitation of appellee and was passing out when one of said doors was then and there opened by appellee and violently set in motion by reason of said unreasonably strong spring, so wrongfully and negligently attached thereto, and she was thereby struck and hurt. The second count of the amended declaration in the original suit charged that appellee unlawfully and improperly erected and maintained said lobby on said public highway and it described said swinging doors and their great weight and charged the duty of appellee to so construct and maintain them as to make their use reasonably safe for persons passing in and out of the lobby; but that appellee negligently and wrongfully attached to each of said doors an unreasonably powerful spring, which caused said doors when opened to swing back and forth with unreasonable violence and rapidity; that appellant was there oh the invitation of appellee and as she was passing out one of said doors was opened by appellee through a person who immediately preceded appellant in passing out, and said door so opened and violently set in motion by said unreasonably powerful spring, so unreasonably and negligently attached to said door, caused the other door to negligently and violently open without warning and struck appellant a violent blow. All the foregoing counts were filed less than two years after the injury. Coming now to the present suit, it is sufficient to say of the original declaration therein, and of the counts of the amended declaration therein to which a demurrer was sustained, that they were similar in substance. The second count of the amended declaration in the present case charged that appellee wrongfully and unlawfully placed in Adams street and for an unreasonable time maintained for its own private gain in said street said lobby with heavy doors of glass and wood and with strong-springs, allowing said doors to swing back and forth, and in consequence of said wrongful "and unlawful conduct of appellee, appellant was struck with great force by one of said doors, opened by another person, and was knocked down. The third count thereof charged that appellee unlawfully and improperly erected and maintained said lobby on said public highway, and as appellant was passing out therefrom she was struck by a swinging door, a part of said lobby, so unlawfully erected and maintained upon said public highway. The sixth count thereof charged that appellee negligently erected and maintained for its own private gain on a public highway said lobby and swinging doors at - the ends thereof as a means of ingress and egress for its customers, with doors of timber and glass of great weight, and that it was the duty of appellee to construct and maintain such doors in such a manner as to make the use of the same reasonably safe for persons passing in and out, yet appellee negligently made and hung said doors with unreasonably strong and powerful springs which caused said doors, when opened, to swing back and forth with unreasonable violence and rapidity, and that, in consequence of such negligence, plaintiff was struck by one of said doors when opened and violently set in motion. The seventh count was substantially to the same effect.

It seems to us that this brief statement of the contents of these several declarations is sufficient to show that no new cause of action has been introduced into the case since the original declaration was filed. Some counts describe the store and its location and the width and length of the vestibule and the materials of which it and the doors were made more fully than others, but they describe the same store, the same street, the same vestibule, and the same heavy doors and the same strong springs, and the same swinging of the doors, and the same blow to appellant. In each declaration is a count charging that the vestibule and doors were unlawfully in the street, and a count charging, perhaps imperfectly in some cases, that the weight of the doors and the strength of the springs and the swinging of the doors were dangerous. We are of opinion that the replication was a complete answer to the plea of the Statute of Limations. Upon an examination of the first, fourth and fifth counts of the amended declaration, we see no reason why they also do not state a cause of action, and we are of opinion that the court also erred in sustaining the demurrer to said counts.

The judgment is therefore reversed and the cause is remanded, with directions to the court below to over-, rule the demurrer to the amended replication to the plea of the Statute of Limitations, and also to overrule the demurrer to the first, fourth and fifth counts of the amended declaration.

Reversed and remanded.


text:
    The People of the State of Illinois, Appellee, v. Patrick Venard, Appellant.
    Gen. No. 5587.
    1. Bastabdv — when jurisdictional discrepancy cannot be availed of. By giving a recognizance and going to trial without questioning the jurisdiction of the court, jurisdictional discrepancies are waived.
    2. Evidence — when contents of subpoena cannot be shown. The contents of a subpoena and the date when it was returnable cannot be proved orally when the witness has the subpoena in his possession but does not produce it.
    3. Evidence — when offer of proof insufficient. An objection to an offer of proof is properly sustained if part of such offer is incompetent.

      4. Instructions — when error cannot he complained of. A party cannot complain of an error which he has caused the court to commit.
    Bastardy. Appeal from the County Court of DuPage county; the Hon. Charles D. Clark, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed April 25, 1912.
    Carnahan, Elsdon & Sltjsser, for appellant.
    Charles W. Hadley, for appellee; John W. Leedle, of counsel.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

The County Court of Du Page county adjudged that Patrick Venard is the father of the bastard child of Victoria Bedora. He appeals and contends that because of the absence from the record of a written complaint and of a warrant and return the County Court had no jurisdiction; that the court erred in refusing to admit certain proof offered by appellant; that the evidence of intercourse with Victoria Bedora by other men than appellant within the period when the child could have been conceived is such that appellant cannot be convicted of being the father; and that the verdict is against the clear preponderance of the evidence.

The record filed by appellant shows a transcript of a justice which recites a complaint by the mother of Victoria, a warrant issued for appellant, that he was brought into court thereunder, his release on bond, a continuance by agreement, and a change of venue to another justice. The transcript of the next justice, in stating the prior proceedings before the first justice, recites a complaint by the girl herself at a date which is evidently a mistake and then recites a hearing before such second justice, and an order binding appellant over to the County Court and a recognizance by appellant which recites a charge of bastardy against him by Victoria Bedora and that he was required to give bond for bis appearance before tlie Connty Court to answer the charge. Appellee, by leave of court, has filed an additional record containing the written complaint and the warrant and return and showing* that they were omitted from the original record by mistake. No lack of jurisdiction appears from the entire record. There are discrepancies in dates in the two transcripts from the justices, but appellant gave the recognizance required and went to trial in the Connty Court and did not question the jurisdiction in that court, when those discrepancies might have been explained or corrected. His bare motion in arrest without points in writing, did not suggest to opposite counsel or to the court that an attack was being made upon the jurisdiction of the court because of technical defects. It is too late to question that jurisdiction here on those grounds.

Victoria testified that her last menstruation was during the first days of October, 1909; that she had intercourse with appellant twice some time later in that month; and that the child was born July 20, 1910. The attending physician testified that the child was fully grown and developed and should have been conceived about the middle of October, 1909. Victoria was corroborated as to the opportunity for intercourse between herself and appellant by the testimony of her sister. Appellant testified that he had never had intercourse with Victoria, but he admitted that he had been alone with her during that month on at least two occasions. Walter Koers, a witness for appellant, testified that he had intercourse with Victoria about the first week in October, 1909. On cross-examination he admitted that he testified before the justice that he had intercourse with her, either the last week in September or the first week in October, or the latter part of September or the first part of October. When his entire examination was concluded it amounted to this, that he had intercourse with her once in the first part of September and again either the latter part of September or the first part of October. Victoria denied that she had intercourse with Koers in October. If her intercourse with Koers was all in September and her last menstrual period was in October, it is at least very unlikely that he is the father of this child, especially in view of the testimony of the attending physician above stated. William Hogan, a cousin and employe of appellant, testified that he had intercourse with Victoria in September and about two nights after Halloween in November. This had no special tendency to show that he might be the father. Victoria testified that she had never had intercourse with Hogan. There was a house in the neighborhood where the parties lived, owned by a family in Chicago, which house contained beds, bedding, a stove and cooking utensils, and the family sometimes came out and occupied this house. Appellant introduced evidence tending to show that on a certain night early in October, when that family was occupying the house, Victoria and her sister were there; that the next day the women of the family returned to Chicago and that the next two nights Victoria and her sister staid there with two men of that family, during the month of October, 1909. Victoria and her sister testified that they were not there at all, except one night when the women of the family were present. It is obvious that the state of the evidence on these subjects is such that we cannot say that the jury and the trial judge should have found that Victoria had intercourse with any other man than appellant during the period within which this child was conceived. Victoria was asked who was the father of her child, but an objection by appellant to the question was sustained. It was for the jury to say whether they believed Victoria or appellant on the main question. The opportunity was admitted. Just prior to the first occasion testified to by Victoria, there was much drinking of beer by appellant and his young men associates, and, if appellant and Ms-witnesses are to be believed, tbe standard of morality among these young people is very low. We cannot say that the verdict should have been the other way.

Appellant testified that in February, 1910, Victoria told him that she was in trouble, that she was in the family way and that Joseph Barron was the father of her child. Hawkyard, who had boarded with appellant, testified that he heard Victoria tell appellant that she was in the family way and that the father of the child was “Joe,” but that he did not hear the last name. Victoria testified to several conversations with appellant about her condition, but denied that she named Joseph Barron. Appellant called an officer and sought to show by him service of a subpoena upon Barron to appear as a witness on the first day of the trial. It turned out that the officer had the subpoena at his home, and the court held that the contents of the subpoena and the date when it was returnable could not be proved orally when the witness had the subpoena in his possession. We hold that this ruling was correct. Appellant did not cause the officer to bring the subpoena, nor did he seek to have an attachment against Barron when he failed to appear on the first day of the trial.

There was undisputed proof that in January or the fore part of February, 1910, appellant and Edward Bedora, a brother of Victoria, went to a female nurse living in that neighborhood to see if she would undertake to relieve Victoria of the child, and that, after taking several hours to consider, the nurse told them that it would be murder at that late period and that she would not undertake it. The evidence of Victoria and of Edward was that thereafter appellant proposed that Victoria go to a certain doctor in Rockton, about 15 miles from Rockford, who had relieved women of cMldren under such circumstances; that appellant said he would not go with her because he was a business man and people might talk about it; that he asked Edward to go in his place and the latter refused, but afterwards consented; that appellant paid Victoria $29 in the presence of Edward to meet the expenses of that trip; that Edward and Victoria did go to Bockton and to the vicinity of the doctor’s office; that Edward then told Victoria not to go in, and that it would be a penitentiary offense, and they did not visit the doctor but came home, and appellant told her to keep the money and she did keep it and bought a baby carriage with a part of it after the child was born. On cross-examination of Edward he was asked about a conversation at which his sister was not present but appellant and Bed-dick were present, and was asked if he did not then say to appellant that his sister was in trouble and he wanted to take her to a doctor and wanted to borrow money for that purpose, and if appellant and Beddick did not then talk it over and if Beddick did not then loan him $15 and if appellant did not then loan him $14 for that purpose, and each pay him the money then. He denied such a conversation, but testified that Beddick had at some other time told bim that he furnished $15 of the $29 which appellant paid to Victoria. Appellant testified that he did not pay $29 to Victoria. Appellant sought to testify to this alleged conversation between Edward and appellant and Bed-dick, and, an objection being sustained, made an offer to prove that certain things were then said and done. An objection to the offer was sustained. The same offer and the same ruling were made when Beddick was testifying for appellant. It is contended that this ruling was erroneous. We are of opinion that appellant had a right to prove that instead of his paying Victoria $29 in the presence of her brother he loaned her brother $14 and Beddick loaned him $15 and each paid him the money when Victoria was not present, and that they did this on the. application of Edward. But as to each -witness the offer was a single offer and it included in it an offer to prove the conversation which then took place. We are of opinion that such conversations when Victoria was not present were not admissible in behalf of appellant. A part of the offer as to each witness being incompetent, the court properly sustained the objection to the offer. Cressey v. Kimmel, 78 Ill. App. 27. The rule is thus stated in Jones on Evidence, 2nd Ed. sec. 894: “When the offer of testimony includes that which is admissible with that which is not, and the competent and incompetent are blended together, it is not the duty of the court to separate the legal from the illegal, but the whole may be rejected when objection Is made.” If appellant wished to prove the facts that then occurred without the conversation, he should have made another offer, and we must presione that if he had done so, that evidence would have been admitted.

At the request of appellee the court gave instruction No. 3 as follows:

“Although you may believe from’the evidence that the prosecuting witness had sexual intercourse with another person about or near the time her bastard child might have been begotten, still such fact would not warrant the jury in finding the defendant not guilty, if you believe from a preponderance of all the evidence in the case that the defendant is the father of such bastard child.”

Appellant requested the court to give instruction No. 17, as follows:

“The court instructs the jury that if you find from the evidence that any other man or men then the defendant had sexual intercourse with the complaining witness between September 12, 1909, and November 2, 1909, then you must find the defendant not guilty.”

The court modified said instruction No. 17, and gave it as follows:

“The court instructs the jury that if you find from the evidence that any other man or men than the defendant had sexual intercourse with the complaining witness between September 12, 1909, and November 2, 1909, and yon find from the evidence no other facts or-circumstances to determine in your minds who is the father of the bastard child, then you must find the defendant not guilty.”

Appellant contends that the court erred in giving No. 3 and in refusing’ No. 17 as offered and in giving No. 17 as modified. It is obvious that No. 17 as offered was incorrect. It fixed September 12 and November 2 as the dates within which sexual intercourse by the complaining witness with any other man would require a verdict that defendant was not guilty. The complaining witness testified that her last menstrual period before the birth of this child was early in October. It certainly would have been improper for the court to tell the jury, as a matter of law, that the fact of sexual intercourse by another man besides the defendant with the prosecuting witness nearly a month prior to her last menstrual period made it impossible to know who was the father of her child. That was a question of fact and not of law. Many circumstances could be shown which would tend to fix the paternity of the child, notwithstanding access by several men during the period when the child might have been conceived. This error was carried into the instruction as given, but appellant, having requested that error, cannot complain of it. We are of opinion that the modification of No. 17 and the giving of No. 3 were correct statements of the law and were properly given, unless it can be said that there was no evidence from which the jury could determine who was the father of the child in case they believed that the prosecuting witness had intercourse, not only with appellant, but also with some other man during the time when the child might have been begotten. We are of opinion that the court was not required to decide that there was no evidence of that kind, even though that evidence may have been slight. There was evidence that very soon after the prosecuting witness found herself pregnant she informed appellant and sought his advice and that he gave advice and pecuniary assistance. These and other facts in proof tend to show that they both then believed defendant the father of the unborn child. Instruction No. 3 is approved in Hobson v. People, 72 Ill. App. 436; Altschuler v. Algaza, 16 Neb. 631, 21 N. W. 401, and State v. Pratt, 40 Iowa 631. It is said in Altschuler v. Algaza, supra: “If a doubt is raised as to the paternity of a bastard child by reason of the complainant’s connection with other men at about the time it was begotten, other facts may be shown sufficient to satisfy the jury that the accused is the father. * * * The jury are to determine from all the evidence before them whether or not the accused is the father of the child.” The ruling in People v. Lamberg, 160 Ill. App. 644, relied upon by appellant, was based upon the lack of evidence. We have grave doubts of the truth of the testimony of the witnesses, Koers and Hogan, and are of opinion that the jury might well disbelieve them.

The judgment is therefore affirmed.

Affirmed.


text:
    Mary L. Bartley et al., Appellants, v. Pleasure Driveway and Park District of Peoria, Appellee.
    Gen. No. 5623.

      Chancery — when discretion of officials not interfered with. Equity will not take jurisdiction to direct or control the exercise of discretionary powers to be exercised by municipal authorities.
    Bill in equity. Appeal from tbe Circuit Court of Peoria county; tbe Hon. N. E. Worthington, Judge, presiding.
    Heard in this court at the June term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.

      Chester F. Barnett and Joseph L. Bartley, for appellant.
    "W. T. Whiting, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellants, Mary L. Bartley and Chester F. Barnett, filed a hill in equity against the Pleasure Driveway and Park District of Peoria, a municipal corporation organized under the act of June 19, 1893, entitled “An Act to provide for the creation of Pleasure Driveway and Park-Districts” which corporation is hereinafter called the District. The bill alleg'ed that on February 23, 1895, Lydia Bradley conveyed certain real estate, owned by her, to the District for a free public park, upon condition that the District should keep said park ornamented and that the District should never levy any special assessment on the contiguous property for sustaining or improving said park, and that a breach of any of these conditions should work a forfeiture of said lands; that the District accepted said grant and still continues to maintain said lands as a public park; that, on the same day, Lydia Bradley conveyed to the District a strip of land 100 feet wide for use as a park driveway and entrance to said park, subject to the use thereof by the owners of adjoining land for access to lands fronting on said driveway, with a proviso that the District should improve and use said strip for a park driveway only, and that the District should never levy special assessments upon contiguous property for sustaining or improving said driveway, and that for a breach of any of these conditions the title to said strip should revert to Lydia Bradley; that said last named deed was made at the express request of the District, and the District accepted it and improved said strip and, upon a subsequent platting of adjacent lands, said strip was named “Columbia Terrace”; that Mrs. Bradley conveyed other adjacent lands to the Bradley Polytechnic Institute; that, on November 20, 1902, there was filed a plat of a subdivision of certain lands on each side of Columbia Terrace and including Columbia Terrace therein, made by a survivor and duly certified by the Bradley Polytechnic Institute and by Mrs. Bradley and by another corporation which had acquired some interest in the lands, in which certificate they dedicated the streets and alleys on the annexed plat for public use forever, to which certificate was appended a statement by the District that it thereby dedicated for public use forever all the streets and alleys on the foregoing plat upon any lands owned by it, “excepting and reserving, however, complete ownership and control of Columbia Terrace, as designated thereon,” all of which papers were duly acknowledged and recorded; that each of the two appellants owns a lot in said subdivision facing on Columbia Terrace; that the District improved Columbia Terrace, -built sidewalks and a curb, placed grass plots and trees between the curb line and the sidewalk and grass plots in the center of Columbia Terrace, and planted shrubbery, and placed on Columbia Terrace a monument with a bronze statute of Christopher Columbus, and at the base thereof a place where flowers and plants might be grown, and paved the rest of Columbia Terrace with asphalt, at an expense of $12,000, and kept the grass neatly trimmed and the whole cared for as the park was and excluded traffic wagons therefrom; that, on October' 3, 1906, the District passed the following resolution: “That this board relinquish any claim they may have upon Columbia Terrace and let the same revert back to Mrs. Bradley; ’ ’ that no other action was taken by the District to divest itself of the trust imposed upon it by Lydia Bradley as to said Columbia Terrace but that the District then discontinued all care of Columbia Terrace ; that the grass plots have not been taken care of; the shrubbery and plants have been neglected; the trees have not been trimmed; weeds have been allowed to grow around the base of the statue of Columbus; that traffic wagons have been permitted to use this as a thoroughfare; that the sidewalks and pavements are cracked; that the abutting property owners have had to take care of this property to keep it in presentable condition, resulting in uneven patches of grass; that the trees are growing very tall and breaking and casting leaves on the grass, which accumulate and rot there; and that the abutting owners have been informed by the District that, if they would release their right to be relieved from special assessments for sustaining and improving Columbia Terrace, the District would again assume control thereof. The prayer of the. bill was that the District be decreed to' faithfully execute its duties as trustee, under said deed from Lydia Bradley; that it be decreed to take care of and maintain the grass plots, trees, shrubbery and plants and the monuments and the cement sidewalks and asphalt pavement, “as circumstances may require,” and for other relief. The court below sustained a demurrer to the bill and dismissed it for want of equity, and complainants below appealed to the Supreme Court, and it was there ordered transferred to this court. Bartley v. Peoria Park District, 251 Ill. 373.

Many interesting questions have been argued, such as, whether the condition in the deeds from Mrs. Bradley are void under such cases as City of Chicago v. Baptist Theological Union, 115 Ill. 245; whether if the condition is void, that invalidates the grant; whether the making and recording of the plat, joined in by the District, had the effect to convey Columbia Terrace to the city of Peoria as a public street; whether the passage of the above resolution by the District caused the lands to revert to the grantor or her assigns, or transferred Columbia Terrace to the city of Peoria, or was wholly inoperative. We doubt the propriety of deciding these questions when the city of Peoria and the other adjacent property owners, who will be chiefly affected by tbeir decision, are not parties to the suit. We think it sufficient to say that, regardless of the proper conclusion to be reached upon the foregoing questions, we are of opinion that a court of equity is not authorized to grant the relief here sought. It will be observed that there is no allegation that the District has performed any act which it ought not to have done, except to pass said resolution, nor is it alleged that it has on hand any funds with which it can make said improvement. A court of equity cannot direct the trustees how tall it shall permit its trees or its grass to grow, nor that it shall raise flowers or destroy weeds, nor can the court decide for the District that it ought to mend the cracks in its sidewalks and paved way. Moreover, the condition of improvement that would please the owners of these two lots might not suit the owners of the many other lots abutting on Columbia Terrace. It would be a complete answer to the bill by the District for it to say that the condition of improvement in which Columbia Terrace should be kept is a matter wholly within the discretion of the District, and that its officers are satisfied with the condition in which Columbia Terrace now is. The court could grant no relief under the general prayer that the District “be decreed to faithfully execute its duties as trustee,” because there is no duty concerning which a court of equity can give it direction. We are therefore of opinion that the court properly sustained the demurrer to the bill.

The decree is therefore affirmed.

Affirmed.


author: Mr. Justice Morton W. Thompson

text:
    Anna Doyle Herweg, Plaintiff in Error, v. F. Meyer & Bro. Co. et al. Defendants in Error.
    Gen. No. 5541.
    1. Bills of review — when lie. Bills of review will lie in the same court which pronounced the decree, either for error in law apparent on the face of the decree as applied to the facts found hy the court, and stated in the decree, or for newly discovered evidence.
    2. Bills of review — what considered, where errors of law charged. Upon a hill of review for errors of law, the court will not reconsider the evidence hut will only inquire whether the law was improperly adjudged upon the facts which the record shows were found by the court on the former hearing.
    3. Homestead — who not entitled to. Homestead rights cannot he asserted after the abandonment of the homestead premises.
    Bill in chancery. Error to the Circuit Court of Peoria county; ■ the Hon. L. D. Puterbatjgh, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Sheen & David, for plaintiff in error.
    Covet, Campbell & Covet, for defendant in error, F. Meyer & Bro. Co.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

To the March term, 1908, of the Circuit Court of Peoria county, plaintiff in error filed her bill, alleging among other things, “for the purpose of reviewing and revising a decree of this honorable court heretofore entered in a certain foreclosure suit in this court on the 22nd day of September, 1905, wherein F. Meyer and Brother Company were complainants, and your petitioner and others were defendants, wherein by said decree the homestead of your petitioner was sold and by error of law in said decree, the value, to wit: $1000.00 of the proceeds of the sale of said homestead was decreed to be paid to the said complainant in said canse.”

Complainant further alleges that at the time of filing said bill to foreclose she was in possession of said property, but has since vacated the samé in accordance with said decree; that she is divorced from her husband on account of his fault; “that she is advised that the said decree is erroneous and ought to be reviewed and reversed and set aside so far as it directs the value of her homestead so sold to be paid to the said P. Meyer and Brother Company.”

A demurrer was sustained to said bill, and it was dismissed for want of equity, and complainant brings the cause to this court and assigns errors.

April 26, 1904, George C. Herweg and plaintiff in error, his wife, being indebted to the Home Savings and State Bank executed their note and mortgage upon lot fourteen in La Salle place, Peoria, Illinois, waiving their homestead and dower rights, therein.

Afterwards the said George C. Herweg alone executed a second mortgage on said property to defendant in error P.' Meyer and . Brother Company. Home Savings and State Bank filed its bill to foreclose its mortgage, making plaintiff and defendants in error and other creditors defendants, and obtained a decree. Plaintiff in error did not answer said bill and was defaulted. On May 3, 1906, said lot was sold to said bank for $2,041.27, the amount due it with interest and costs. May 15, 1906, P. Meyer and Brother Company paid the master the amount due said bank and received a certificate of redemption.

’. Afterwards defendant in error, P. Meyer and Brother Company, filed its bill in the Circuit Court of Peoria county to foreclose its mortgage, making George C. Herweg, plaintiff in error, and others defendants to said bill. Plaintiff in error not answering said bill, she was defaulted, and the court referred the cause to the master who took the evidence and reported it with his conclusions of law.

The decree finds that all the material allegations in said bill of complaint are proved; that the equities are with the complainant; and specially all the facts as alleged in said bill.

Plaintiff in error contends that as she did not sign said second mortgage, she is therefore entitled to her homestead rights therein, as to the proceeds of said second sale, over the amount due on the first mortgage.

Bills of review will lie in the same court which pronounced the decree, either for error in law apparent on the face of the decree as applied to the facts found by the court, and stated in the decree, or for newly discovered evidence. It is a general and well settled rule that upon a bill of review for errors of law, the court will not reconsider the evidence, but will only inquire whether the law was improperly adjudged upon the facts which the record shows were found by the court on the former hearing. It is to those facts thus found and established to which the law is to be applied upon a bill of review for errors of law. Upon such a bill, questions of fact are not open to discussion. To adjudicate properly upon facts as found, of course the pleadings are to be considered, but for no other purpose. Garrett v. Moss, 22 Ill. 363.

The bill in this case alleges that plaintiff in error was entitled to homestead in the premises, that she has been divorced from her husband for his fault, etc., but there is no finding of such facts in the decree sought to be reviewed, and no allegations of such facts in the record, from which such facts should have been found- by the decree. Plaintiff in error insists that such findings are in the decree. That when it finds that “George Herweg released all dower and homestead in said premises,” it is inferentially a finding that his wife did not. That when it finds that ‘ ‘ Complainant has become subrogated to all the rights of the Home Savings and State Bank under its mortgage given by the said George C. Herweg and Anna Doyle Herweg, Ms wife,” tMs shows that she was the wife of George C. Herweg. This may be true, but it falls far short of finding the plaintiff in error was entitled to homestead in said premises at the date of the decree sought to be reviewed. She may have abandoned her homestead before that time.

Had the court erred in its findmgs, the remedy of plaintiff in error was by appeal or writ of error to correct the findings of the chancellor. This cannot be done by bill of review, and the action of the trial court M sustaimng the demurrer and dismissing the bill of review was correct.

Judgment affirmed.


text:
    Thomas Betts, Jr., Executor, Appellant, v. Leander E. Ketchum et al., Appellees.
    Gen. No. 5546.
    This case is controlled by the decision in Commercial Nat. Bk. v. Kirkwood, 172 Ill. 563.
    Bill in chancery. Appeal from the Circuit Court of Du Page county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Joseph A. Reuss and John W. Leedle, for appellant.
    Alschulee, Putnam & James and A. H. Switzer, for appellee, Mary Ketchum.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

One branch of this case was before this court and is reported in Ketchum v. Sears, 154 Ill. App. 52, which contains a sufficient statement of the facts.

This is a bill in chancery by complainant, in the nature of a creditor’s bill, to compel defendant Sears to pay the amount of his judgment, $1,905.04, claiming that the defendant Sears is liable therefor, under the agreement made with the Ketchums at the time the farm was sold and Weidert .paid to him the balance of the purchase money.

The trial court found and decreed that Sears pay Mary Ketchum the $900 balance due her under said agreement and that he pay complainant $537.40, the balance in his hands, to apply on complainant’s judgment; and complainant appeals. The day after the deed to said farm was filed for record, Sears paid to Ketchum $2,874.80, the balance of said purchase money except the $900 due Mary and the $537.40 the estimated one-third of the Betts claim, which at that time had been sued upon, but was not in judgment, and which one-third would have been payable to Mary if the Betts claim had been entirely defeated.

Complainant claims that under the agreement between the Ketchums, Sears became a trustee, and is liable to plaintiff for the full amount of his judgment; but we cannot agree with that contention.

Weidert paid the purchase money to Sears with instructions to pay and satisfy all liens against said lands, which was done. The agreement between the Ketchums concerned themselves alone, and while it might have benefited the plaintiff, yet he was in no way a party to it, and until he had signified his acceptance, there was no privity of contract or mutuality between him and Sears; and being so Ketchum had the right to rescind his direction to Sears and to demand any and all of the funds remaining in his hands except the $900 which belonged to Mrs. Ketchum, and should have been paid to her by Sears when she signed the deed.

We think that the case of Commercial National Bank v. Kirkwood, 172 Ill. 563, lays down the principle governing this case.

Finding no error in the record, the decree of the trial conrt is affirmed.

Affirmed.


text:
    Frank Darling, Conservator, Appellant, v. William Wood, Appellee.
    Gen. No. 5554.
    1. Pleading — when proof of cause of action incompetent. A cause of action not counted upon in the declaration cannot be established by evidence.
    2. Mines and minees — what does not bar recovery for wilful violation. ■ A defense which amounts merely to a charge that the plaintiff was guilty of contributory negligence will not bar an action under the mines and miners act charging a wilful violation.
    Action in case for personal injuries. Appeal from the Circuit Court of Grundy county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 13, 1912.
    J. W. Rausch, for appellant.
    J. G. Petteys and McDougall & Chapman, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

Plaintiff was operating a shaft coal mine in Grundy county, at the time of the injury complained of in this suit. The mine was about seventy feet deep, and was operated by means of horse power. The shaft was about four by nine feet, with two cages raised and lowered by a link chain attached to the top of each cage, running over pulleys above, and then out and around a “drum” or windlass so that as one cage was raised the other was lowered.

On November 26, 1906, appellant’s ward and his brother Eoy, who had dug coal in this mine the week before, got into a coal car on one of the cages to be lowered into the mine to go to work. Shortly after they started down, the chain parted and the cage fell to the bottom of the shaft and both were injured. Eoy testified that he had with him a miner’s pick, and. from the conflicting evidence we are satisfied that there were other picks in the car. George was severely injured by some sharp instrument, as Dr. Walsh, his attending physician, testified, penetrating the base of the spine, probably four inches, and slivered the end of the bony spinal column called the “coccyx.” The end of the backbone was split open a couple of inches: He was confined to his bed for some time from the injury.

Before this injury George had been confined in the Insane Hospital, and since has been re-committed and appellant appointed his conservator, and as such brings this suit.

The cages were not furnished with covers of any kind, and were not equipped with safety catches.

The declaration consists of four counts. The first is a common law count for negligence. The second is for a violation of paragraph “e” of section 16 of the Mines and Miners Act; the third for a violation of paragraph “d” of section 2, in not having the cages furnished with suitable boiler iron covers; and the fourth for a violation of said paragraph “d” in not having the cages equipped with safety catches.

The second count alleges that the cages were raised and lowered by means of an endless chain running over pulleys; that it was the duty of defendant to provide reasonably safe machinery, apparatus and appliances for lowering and hoisting said cage, and to use reasonable and ordinary care to keep and maintain the said chain in reasonably good and safe repair and condition for the use of said persons employed in said mine, and that defendant carelessly and negligently suffered and permitted said chain to become and remain in a worn and unsafe condition.

The defendant filed his plea of the general issue and special pleas, alleging that plaintiff’s ward was at the time of the injury descending the shaft in question on the cage which was carrying his tools, in violation of paragraph “c” of section 28 of said Mines and Miners Act; and that plaintiff’s ward was not in the employ of defendant at the time of his injury. No replication seems to have been filed to either of said pleas, and the case was tried; and the jury found defendant not guilty. A motion for a new trial was denied, judgment was rendered on the verdict, and plaintiff appeals.

Appellant assigns error covering all the points raised. It is insisted that the trial court erred in admitting the testimony of defendant.

Plaintiff’s ward was not a witness in this case, but his brother Eoy testified on behalf of plaintiff, to the conversation had with defendant the day before they began work in this mine, about a week before the injury; and defendant was competent under exception “Fourth” of section 2, chapter 51 of the statute to testify to that conversation. Donlevy v. Montgomery et al., 66 Ill. 227. While defendant was asked and answered some questions not strictly proper we think they did appellant no harm.

It is also insisted that defendant’s use of a link chain was a violation of the statute, hut it is sufficient to say that the declaration does not count on that violation of the Act. As to the third and fourth counts the evidence is conclusive and uncontradicted, but defendant attempts to avoid them by proof of his first additional plea.

"We cannot agree with appellee’s contention that the violation of the statute by plaintiff’s ward in getting in an empty car on the cage and taking picks with him should bar a recovery for a wilful violation of the statute by the operator. It would amount only to contributory negligence on his part, which has been held in numerous cases not to be a defense against a charge of wilful violation. Illinois Collieries Company v. Davis, 137 Ill. App. 15.

Had the cage been equipped with safety catches, as required, to prevent its falling in case the machinery or appliances broke or failed to work properly, as happened in this instance, plaintiff’s ward would not have been injured as he was.

As was said in Waschow v. Kelly Coal Company, 245 Ill. 516, 519: “We think it cannot be seriously urged that the mine was not in an unsafe and dangerous condition, substantially as alleged in the declaration. When an injury proceeds from two causes operating together, the party putting in motion one of them is liable the same as though it was the sole cause. The negligent act or omission must be one of the essential causes producing the injury, but need not to be the sole cause nor the last or nearest cause. It is sufficient if it concurs with the other cause acting at the same time, which in combination with it causes the injury.” See authorities cited.

There are other errors urged which may not occur on another trial, and we therefore do not discuss them at this time. For the reasons given, the judgment of the Circuit Court is reversed and the cause is remanded to that court for another trial.

jReversed and remanded.