text:
    Emma L. Hartzell, Plaintiff in Error, v. Maryland Casualty Company, Defendant in Error.
    Gen. No. 4,883.
    1. Judgment—form of, upon sustaining plea to jurisdiction. Upon sustaining a plea to the jurisdiction, the judgment should be that the plaintiff take nothing by his suit and that the defendant go hence without day.
    2. Service of process—when does not confer jurisdiction as to insurance company defendant. A citizen of this State, resident of one county thereof, cannot institute suit in another county against a foreign insurance company and have service made upon the agent of such company authorized by virtue of statute as its service agent, and thus confer jurisdiction as to such insurance company.
    3. Accident insurance—section 18 of act construed. Section 18 of the act governing accident life insurance companies, which provides that every life insurance company not organized in this State hut doing business in this State, shall in writing appoint an attorney, resident in this State, upon whom to levy process against the company, who may he served with like effect as if the company existed in this State, does not operate to extend the law of venues of actions as fixed by the other statutory provisions of the State.
    Assumpsit. Error to the Circuit Court of Henderson County; the Hon. Robert J. Grier, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Hobton, Beown & Miller, for plaintiff in error.
    L. IT. ITanna, for defendant- in error.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

On April 4, 1905, the Maryland Casualty Company entered into a contract of insurance with John H. Hartzell, of the' city of Monmouth, Warren county, State of Illinois, wherein it insured said Hartzell against disability resulting from bodily injuries sustained through violent and accidental means. On September 4? 1905, Hartzell died. On February 28, 1906, Emma L. Hartzell, plaintiff in error, widow of deceased, and beneficiary in the contract of insurance, commenced this suit in the Circuit Court of Henderson county to recover the indemnity stipulated for in the contract, for the death of Hartzell. She caused summons to be issued, directed to the sheriff of Sangamon county, Illinois, which was served upon W. R. Vredenburg, superintendent of insurance of the State of Illinois, who, the return thereon stated, was the legally authorized agent for service in the State of Illinois for the Maryland Casualty Company. On September 8, 1906, plaintiff in error filed a declaration alleging the execution of the contract of insurance and setting it out in haec verba, the death of Hartzell, its cause, and defendant in error’s liability therefor and the amount of damages resulting. On October 4, 1906, defendant in error appeared specially and interposed a plea to the jurisdiction of the court. The plea averred that the defendant in error was before, and at the time of the commencement of the suit, and still is, an accident life insurance company, a corporation aggregate, organized and existing by virtue of the laws of the State of Maryland, and duly authorized to do business in the State of Illinois, and was engaged in business therein, pursuant to the statute in such case made and provided; and that theretofore, and at the time of the commencement of this suit, plaintiff in error was not, and from thence hitherto has not been, and is not now, a resident of said Henderson county, Illinois, but that before, and at the time of the commencement of this suit, plaintiff in error was, and from thence hitherto has been, and still is, a resident of the city of Monmouth, county of Warren, State of Illinois; and that before and at the time of the commencement of this suit, the defendant company was not, and from thence hitherto has not been, and is not now, a resident of said Henderson county, nor of the State of Illinois; but said defendant in error was before,- and at the time of the commencement of said suit, and from thence hitherto has been, and still is, a resident of the State of Maryland, and not elsewhere. The plea further averred that neither its president, nor any clerk or other officer named in the statute, was found or served with process in Henderson county; nor was any agent of defendant company found or served with process in Henderson county; but that summons was issued to the sheriff of Sangamon county, and served on Vredenburg, superintendent of insurance of the State of Illinois, in the county of Sangamon and without the county of Henderson. To this plea plaintiff in error demurred. The demurrer was overruled, and plaintiff in error elected to abide by the demurrer. The court ordered the summons and the service thereon quashed, dismissed the cause and adjudged the costs against the plaintiff in error. Plaintiff sued out this writ of error to review said judgment. The order or judgment of the court is slightly informal. It should not have been that the suit be dismissed, but that plaintiff take nothing by his suit, and that the defendant go hence without day. Wenom v. Fossick, 213 Ill., 70; People v. Severson, 113 Ill. App., 496; Wilkinson v. Olin, 136 Ill. App., 527. But the judgment was final, and this slight error is immaterial.

It is urged that the plea is defective in not averring that at the time the suit was instituted and process served, defendant had no office or was not doing business in the county of Henderson.

Section 2 of the Practice Act, Hurd’s Statutes, 1905, provides that “it shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found,” with certain exceptions not important here. Section 4 of said act provides that any incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought; if he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent, or any agent of said company found in the county; and in case the proper officer makes return upon such process that he cannot, in his county, find any clerk or other of the enumerated representatives of the company, then such company may be notified by publication. The plea avers that service in this case was not under either of said sections, and it is urged that if reliance is had upon either of said sections, the service is bad, as the plea denies that the defendant resided or was found in Henderson county and that any of its officers were found in that county and there served.

Section 1 of a separate act which is usually printed in the Practice Act as paragraph 3 thereof, provides that the courts of record of the county wherein the plaintiff or complainant may reside shall have jurisdiction of all actions hereafter to be commenced by any individual against any insurance company, either incorporated by any law of this State or doing business in this State, and all process issued in any cause commenced in the county wherein the plaintiff may reside, wherein an individual may he plaintiff or complainant and any such company defendant, may be directed to any county of this State for service and return under this section of the Practice Act. “It is by virtue of the foregoing section that the courts of record of the county wherein the plaintiff or complainant may reside are given jurisdiction of all actions wherein an individual is plaintiff or complainant and an insurance company is defendant, and are authorized to direct their process to any county of the State for service and return. It will be noted that the foregoing section of the Practice Act places foreign and domestic insurance companies on the same footing. There is here ho attempt upon the part of the legislature to impose any conditions upon foreign companies from which domestic companies are exempted.” Ladies of Maccabees v. Harrington, 227 Ill., 522.

Plaintiff, being a resident of Warren county, could, by virtue of said paragraph 3 of the Practice Act, have instituted suit in the Circuit Court of said county, and clothed it with jurisdiction over defendant in error, by causing its process to be issued, directed to any county in this State, and served upon defendant in error, its agents, or the superintendent of insurance. Johnson v. Hanover Ins. Co., 15 Fed. Rep., 97. This she did not do, hut attempted, while,a resident of Warren county, to confer jurisdiction upon the Circuit Court of Henderson county, relying presumably upon the 18th section of the act governing accident life insurance companies not organized in Illinois, which provides that every accident life insurance company not organized in this State, before doing business in this State, shall, in writing, appoint an attorney resident in this State, upon whom all lawful process against the company may be served with like effect as if the company existed in this State. The foregoing section only contemplates lawful process issued under and by virtue of said paragraph 3 of the Practice Act, where such process may have issued from a court of record of the county where the plaintiff or complainant resides.

The demurrer was therefore properly sustained, and the judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Willis

license: Public Domain

text:
    Rebecca Converse et al., Defendants in Error, v. Louisa Hindes et al., Plaintiffs in Error.
    Gen. No. 4,882.
    1. Appeals and erbobs—when merits will he determined notwithstanding irregularities. The merits of an appeal will be determined by the Appellate Court notwithstanding informalities and irregularities in the manner of bringing up the cause where all the parties in interest are before the court and none of such irregularities have been brought by any of such parties to the attention of the court.
    2. Taxation op costs—power of court with respect to. Costs can only he imposed hy the courts where their imposition is authorized hy statute, except in peculiar eases, such as where the construction of a will is involved.
    3. Service op process—effect of, where had hy publication. Service of process hy publication only enables the court to give effect to the proceeding insofar as it is one in rem; such service does not authorize a personal judgment or decree.

      Bill to contest will. Error to the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed March 11, 1908.
    Stevens R. -Baker, for plaintiffs in error.
    H. H. McDowell, for defendants in error; G. C. & L. F. Strawn, of counsel.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Rebecca Converse, widow of Orlin Converse who died testate on January 15, 1906, by Fred Fienhold, her conservator, filed a bill in the Circuit Court of Livingston county on August 15, 1906, to contest the will of her deceased husband, and made defendants thereto his heirs at law, devisees and legatees. Some of the defendants were personally served, others were brought in by publication. H. H. McDowell and C. C. and L. F. Strawn appeared as solicitors for certain defendants interested in sustaining the will, and filed an answer for them. There was a trial and a decree sustaining the will. Afterward, said solicitors filed a petition asking that they be allowed solicitor’s fees for their services and that the same be taxed as costs and charged against the heirs whom they represented (except one May C. Filo), who are now joined with said solicitors as defendants in error, and also against plaintiffs in error who were also heirs and co-defendants in the suit below, though not appearing at any stage of the trial. There was a hearing on the petition, and the solicitors’ fees were fixed at $5,000 and that sum together with the costs of the proceeding to tax solicitors’ fees were ordered taxed as costs against defendants in error and plaintiffs in error as their interests might appear, and their interests in the real estate left by the deceased were ordered sold to pay said fee and costs, and execution was awarded for any deficiency. Plaintiffs in error, Louisa Hindes and Myron G. Norton, were persons who would take under the will and who also would take as heirs at law if the will were set aside, and they were defendants and taxed with a portion of these solicitors’ fees and costs, and they have sued out this writ of error and seek the reversal of said decree taxing solicitor’s fees and costs.

There are several informalities and irregularities in the manner of bringing this cause before us, for which we might set aside the order taking the cause and defer a decision till the same are corrected. The parties in interest, however, are all before us and have not seen fit to raise any of these points, but have submitted the cause for decision upon the merits, and we have concluded to treat these informalities and irregularities as waived.

Defendants in error urge that an allowance of solicitor’s fees to be taxed as costs is discretionary with the court, and cite Askee v. Springer, 111 Ill., 662, in support of their contention. The court in its opinion in that case had in contemplation costs provided by the statute and ordinarily taxable, and not solicitor’s fees. Defendants in error also cite and apparently rely on a number of other cases, an examination of which discloses that they relate to taxable costs under the statute and not to solicitor’s fees. Solicitors’ fees cannot be ordered and taxed as costs at the diseretionof the trial court, as urged by defendants in error, bnt only when authorized by statute, and there is no statute providing for ordering solicitor’s fees and taxing them as costs in will contests.

In Wilson v. Clayburgh, 215 Ill., 506, the court said, “It has been repeatedly held in this state, that nothing can be allowed and taxed as costs by the clerk or the court but items of cost designated by the statute to be so allowed and taxed. (Constant v. Matteson, 22 Ill., 546; Strawn v. Strawn, 46 Ill., 412; Eimer v. Eimer, 47 id., 373; Conwell v. McCowan, 53 id., 363; Campbell v. Campbell, 63 id., 502; Roby v. Chicago Title and Trust Co., 194 id., 228; Rieker v. City of Danville, 204 id., 191.) The only exception to this rule in this State is in cases brought by trustees for the construction of wills, where a will is so ambiguous as to make it necessary to go into a court of chancery to obtain a construction thereof, in which class of cases the costs of the litigation must be borne by the estate. (Woman’s Missionary Society of America v. Mead, 131 Ill., 338; Ingraham v. Ingraham, 169 id., 432; Arnold v. Alden, 173 id., 229.)” This suit was not for the construction of a will claimed to be ambiguous, but a proceeding to set aside a will, and, in the absence of a statute providing for the allowance of solicitor’s fees in such cases, the order of the court allowing solicitor’s fees was improper.

Plaintiffs in error were nonresidents and served by publication. Plaintiff in error, Louisa Hindes, was defaulted. She was not personally before the court and no personal judgment could therefore be properly rendered against her, nor execution awarded for the deficiency. The notice of publication only enabled the court to give effect to the proceedings so far as it was one in rem. Harris v. Pullman, 84 Ill., 20; Town of Virden v. Needles, 98 Ill., 366; Bickerdike v. Allen, 157 Ill., 95.

The decree directed that the allowance of solicitors’ fees be paid direct to H. H. McDowell and C. C. and L. F. Strawn. If an allowance of solicitor’s fees had been proper, the order should have directed it to be paid to the parties to the suit who had incurred the liability for solicitor’s fees.

Plaintiffs in error were nonresidents, were served by publication only, and Louisa Hindes did not employ solicitors, and we know of no rule of law by which she can he called upon to pay or contribute to fees of solicitors employed by others. There was no compulsion on her to defend. It is insisted, however, by defendants in error that this is like a case where all owners of a common estate are in law bound to contribute to a lawful charge thereon, such, for instance, as a mortgage placed upon his land by a testator and remaining unpaid at his death. We see no similarity in this illustration. Plaintiffs in error were all heirs at law of the deceased. They would have inherited if the will had been set aside. They may have been indifferent to the result of the contest of the will. It is evident that Louisa Hindes was not enough interested to appear and employ attorneys. The solicitors who obtained the order for fees were employed by certain of the defendants. Their services or the compensation therefor are a matter of contract. Those who hired them are liable for the contract price, if there was a contract, or, in the absence of contract, for the reasonable and customary fee for such services. Plaintiff in errror Louisa Hindes did not hire them and is not liable to them, and if plaintiff in error Myron Gr. Morton joined in hiring them he is liable only on his express or implied contract.

The decree for solicitors’ fees and costs is therefore reversed.

Reversed.


text:
    Otto Hermanson, Appellant, v. A. P. Goodyear, Appellee.
    Gen. No. 4,861.
    1. False imprisonment—when burden of proving illegality of, upon plaintiff. As a general proposition of law, it is only necessary for the plaintiff in actions for false imprisonment to show that he has been restrained of his liberty. The presumption then arises that his restraint was unlawful and the burden of proving a justification, if any exists, is upon the defendant. But when the plaintiff goes further than this and shows that such imprisonment was caused by a complaint before a magistrate, the issuing of a warrant upon such complaint, and a trial and examination under it, the burden of proof is upon the plaintiff to show that the proceedings were invalid or irregular, the presumption of law being in favor of the regularity of judicial proceedings even in courts of limited jurisdiction.
    2. False imprisonment—when justice of peace not liable in civil action for. A justice of the peace is not liable in a civil action for false imprisonment where it appears that he had jurisdiction as well over the offense charged as of the person of the plaintiff.
    Trespass. Appeal from the Circuit Court of Iroquois County; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Fleming E. Moore and Mellie B. Kessler, for appellant.

      A. E. Goodyear, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This was a suit in trespass for false imprisonment brought in the Circuit Court of Iroquois county, by Hermanson, a peddler of patent medicines, against A. P. Goodyear, a justice of the peace, to recover damages claimed to have been sustained on account of appellant’s arrest and detention or imprisonment for violating an ordinance of the village of Woodland in said county. In September, 1905, complaint was made before appellee, charging appellant with violating an ordinance of said village of Woodland, prohibiting peddling without a license. A warrant was issued and appellant was arrested and brought before appellee. Upon appellant’s application, the cause was continued for ten days that he might prepare for trial. At the trial appellant waived a jury, appellee heard the evidence and imposed upon him a fine of $10 and costs, and entered judgment for that amount. The judgment ordered that upon appellant’s failure to pay the fine and costs, he be committed to the county jail until the fine and costs were paid, the imprisonment not to exceed six months. Appellant refused to pay the fine and costs, and appellee issued a mittimus directed to the village marshal, authorizing him to take appellant and deliver him to the keeper of the county jail, to be there kept until the fine and costs were paid or he was discharged by due process of law. The village marshal in obedience to the mittimus, conveyed appellant to the keeper of the county jail, who for some reason refused to receive him and he was permitted to go without further restraint.

Appellant filed a declaration containing two counts charging appelleee with imprisoning appellant without reasonable or probable cause. To the declaration, appellee interposed a plea of not guilty and also a special plea alleging that he was a justice of the peace, and setting out certain sections of the ordinance claimed to have been violated, the entering of judgment against appellee for a violation of the ordinance and. the issuing of the mittimus to the village marshal authorizing him to take and deliver appellee to the keeper of the county jail, to be there detained until the fine and costs were paid or he be discharged by due process of law. To the special plea, appellant filed a replication. The issues were joined and the trial proceeded. At the close of appellant’s evidence in chief, the court oh motion of appellee, directed the jury to return a verdict finding appellee not guilty, and such a verdict was returned. A motion for a new trial was denied, judgment was entered on the verdict, and this appeal is prosecuted by plaintiff.

It is urged that the filing, of the special plea cast upon appellee the burden of justifying the alleged false imprisonment, notwithstanding appellee’s plea of not guilty. If appellant had shown merely that appellee directed the village marshal to take appellant into custody, and that appellant was taken by the village marshal pursuant to such order and deprived of his liberty, it may well be that the burden would then have been upon appellee to show justification. But appellant went much farther in his proof. He proved that appellee was a justice of the peace; that a written complaint was made to him under the direction of the officers of the village; that he issued a writ for appellant; that appellant appeared and obtained a continuance; that at the date fixed for trial both parties appeared, the village by its attorney, appellant in person and by attorney; that appellant waived a jury in writing; that testimony was heard; that appellant admitted the act complained of; that the court found appellant guilty and fined him ten dollars and costs, and that it was part of the judgment that he be committed to the county jail until the fine and costs were paid, provided such imprisonment should not exceed six months, or until released by due process of law. Appellant introduced the transcript of the justice’s judgment in evidence to prove that the village attorney made out the mittimus, and that appellee as justice of the peace signed it and delivered it to the officer. It is true, he proved that appellee spoke some words to the officer to the effect that he was to take appellant to jail if he did not pay this fine, hut it is obvious that that was in connection with making out and handing the officer the mittimus. It is evident that all that the officer did by way of restraining appellant of his liberty was under the mittimus. The officer took appellant to the county jail, and, for some reason not disclosed, the sheriff refused to receive him and he was allowed to go. The only thing appellant did not prove was the contents of the mittimus. If appellant’s declaration had stated all these facts, it is obvious that it would not have stated a cause of action and would have been subject to demurrer. The law governing the evidence as it appears in this record is stated in Newell on Malicious Prosecution and False Imprisonment, page 481, par. 23, in the following language: “As a general proposition of law, it is only necessary for the plaintiff in actions for false imprisonment to show that he has been restrained of his liberty. The presumption then arises that his restraint was unlawful and the burden of proving a justification, if any exists, is upon the defendant. But when the plaintiff goes further than this and shows that such imprisonment was caused by a complaint before a magistrate, the issuing of a warrant upon such complaint, and a trial and examination under it, the burden of proof is upon the plaintiff to show that the proceedings were invalid or irregular, the presumption of law being in favor of the regularity of judicial proceedings even in courts of limited jurisdiction.”

It is clear from the evidence that appellee as justice of the peace had jurisdiction as well over the offense charged as of the person of appellant. In Lancaster v. Lane, 19 Ill., 242, the court said: “We understand the principle to be well settled, that where a magistrate has jurisdiction, as well over the offense as over the person of the offender, his acts, though never so erroneous, will not malee him a trespasser ; and that a conviction by him still subsisting, and valid upon the face of it, on a subject within his jurisdiction, is a legal bar to an action for anything done under such conviction. His judgment is conclusive until it is reversed, f * * And it is held, accordingly, that neither an indict-meat hot an action lies against a judicial officer for any judicial act which he has jurisdiction to do, if the circumstances warrant it. The whole difference, in all such cases, lies between the want of jurisdiction and an abuse of jurisdiction. In the one case, the magistrate is liable to an action; in the other case, he is not liable.” Flack & Johnson v. Ankeny, Breese, 145.

Testing this case by these rules, appellee is not liable. He had the right to be tried by his docket, and was entitled to the evidence it might furnish in his favor, and it is immaterial whether the docket or the transcript thereof was introduced in evidence by himself or appellant.

Appellant having failed to make out a prima facie case, the trial court did not err in directing a verdict for appellee.

The judgment is therefore affirmed.

Affirmed.


text:
    Nellie Sullivan, Appellee, v. William E. Sullivan et al., Appellants.
    Gen. No. 4,926.
    1. Evidence—when immaterial, properly admitted. Evidence in itself immaterial may be competent if inseparably interwoven with a material conversation.
    2. Insteuctions—must limit jury to law and evidence. An instruction is erroneous which gives the jury a license to do what they think is right, independent of the rules of evidence governing the situation.
    3. Instbuction—when upon preponderance of evidence erroneous. An instruction upon the subject of the preponderance of the evidence is erroneous which omits important elements which should be considered by the jury in determining where the preponderance lies, such as candor or lack of candor, bias or lack of bias, on the part of the witnesses. Such an instruction is seriously bad where it does not call the attention of the jury to the element to be considered as to the number of witnesses upon the respective sides where the number of witnesses upon one side preponderates greatly over those testifying upon the other.
    Assumpsit. Appeal from the Circuit Court of McHenry County; the Hon. Chables H. Donnelly, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    O. P. Barnes, for appellants.
    V. S. Lumley, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

William B. Sullivan died October 28, 1904, leaving him surviving Nellie Sullivan, his widow, and a large family by a former wife, of whom William E., Charles and Joseph Sullivan are appellants here. On November 30, 1904, Nellie Sullivan received a draft for $1,000, the amount of an insurance policy carried by deceased in the Catholic Order of Foresters in which she was named the beneficiary. She indorsed the draft and turned it over to William E. Sullivan, who, near the first of December, paid to E. M. Patrick the sum of $1,000 and received therefor a receipt and certificate of release of the name of William E. Sullivan on a $2,500 note given by the Sullivan brothers, and the payment of which their father had guaranteed.

On June 6, 1900, Nellie Sullivan instituted this suit in assumpsit in the Circuit Court of McHenry county against William E., Charles and Joseph Sullivan, to recover the $1,000 with interest thereon, and filed a declaration containing the common counts. The defendant interposed the plea of non assumpsit and a verified plea of non-joint liability. There was a trial and a verdict for $1,107.27 in favor of plaintiff. A motion for a new trial was denied, judgment was entered on the verdict, and this appeal was taken.

Appellee’s contention is that the transaction in relation to the draft between herself and the Sullivan brothers was a loan for which they were to give her their note, but appellants claim it was a gift.

Appellee testified that William E. Sullivan asked her to let them have the $1,000 insurance money when she got it, and she said she would loan it to them for one year at 5 per cent until they could get straightened up. In corroboration. of her testimony, she produced as witnesses appellant William E. Sullivan and Mr. Casey. A careful examination of their testimony leads us to the conclusion that it in no material particular corroborates her statement that the transaction was a loan.

On behalf, of appellants, Bessie Sullivan testified that appellee told her'she was going to give John, Will, Joe and Charlie the insurance money and that she didn’t want a. thing for it. John F. Sullivan testified that she told him she was going to give the four boys the insurance money of $1,000 and that later she told him she had given the boys the $1,000. William E. Sullivan denied that he ever asked for a loan of the $1,000, or that he borrowed the same from appellee, and added that she said, “Will, I have a check from the Eoresters. I don’t need it. You boys can have it,” and that she also said, “I am going to give you boys this insurance money”; that she handed him the draft, and said, “I make you boys a present of this”; and that she later said to him, Charlie and Joe, “The check I gave Will, the other day, I want you three boys to have it.” Charles and Joseph Sullivan corroborated William as to this last conversation. Vernie Sullivan testified that when appellee handed William Sullivan the check she said, “Here, Will, is a check; you boys may have it.” Lawrence Sullivan testified that he saw appellee hand William a paper the size of a draft or check, and that she said, “That was a check for $1,000. I have given it to Will,” or Will and the boys. Hattie Sullivan testified that appellee told her she had given the boys $1,000 insurance money. Philip Sullivan testified that appellee told him John was jealous because she didn’t give him any of the $1,000 insurance money she gave to Joe, Will and Charlie. One Hendricks and William E. Sullivan testified that at a meeting in lawyer Casey’s office in June, 1905, Casey asked Mrs. Sullivan if she had given the boys the $1,000 insurance money, and she said she had. On cross-examination, Casey admitted hearing her at that time say something about making a present in which she mentioned the sum of $1,000. John Sullivan also testified that at the meeting in Casey’s office, Casey said to Mrs. Sullivan, “What about this insurance money ?” And she said she had given it to her three boys.

It appears from the record that much evidence was introduced showing the money appellee had when she married appellants’ father, and that he obtained possession thereof, and gave a note therefor which was lost and could not be found after his death, and that she filed a claim against her husband’s estate thereon, and that there were a number of unsettled matters between appellee and the estate, and that afterwards there was a compromise effected by which she yielded various portions of her demands and was paid an agreed amount; also efforts were made to show that she had been induced to sell her homestead and dower interests at a price apparently disadvantageous to her. This proof was mostly admitted without objection. So much of this evidence as was interwoven with and a part of the conversation relátive to the $1,000 draft, was competent, but wherein it was not so interwoven with conversation between appellants and appellee relative to the drafts it was immaterial.

It appears from the record that appellants, their brother John, appellee, Mr. Hendricks and a number of other persons in May, 1905, had a meeting in the office of lawyer Casey at Woodstock for the purpose of arranging a settlement of their differences, growing out of the administration of the estate and appellee’s claims against the estate, at which time the subject-matters just referred to and the $1,000 draft for the insurance money were discussed. We are therefore of the opinion that the proof in regard to these different matters was competent.

As this judgment must be reversed for errors of law and another trial had, we refrain from expressing an opinion on the merits of the case, except to suggest that a clear preponderance of the proof seems to be with appellants. With the state of proof above indicated, the court gave at the request of appellee a number of instructions now complained of by appellants.

Appellee’s 6th instruction reads as follows:

“The jury are instructed that in an action like this for money had and received, proof of two things only are necessary : First, that the defendants received the one thousand dollars in question from the plaintiff, and second, that in justice and as a matter of right the defendants should pay it hack to her, and if the jury believed from all the evidence, facts and circumstances proven on the trial that the defendants did receive the one thousand dollars from the plaintiff, and that in justice and as a matter of right they should pay it back to her, then you should render a verdict in favor of the plaintiff and assess her damage at such sum, if any, as the evidence shows she is entitled to recover.”

This instruction advised the. jury that they were at liberty to settle all the equities between appellants and appellee and the estate of William B. Sullivan, deceased, and gave them a license to do what they thought was right, independent of the rules of law governing the situation. If it be true that appellee gave this draft to appellants and they reduced the proceeds to their possession (as they did) then the gift was complete and no suit would lie to recover it, no matter how much appellee may have been wronged or overreached in her other financial dealings with appellants.

Appellee’s 5th instruction reads as follows:

“The jury are instructed that the greater weight of the evidence is not alone determined by the greater number of witnesses testifying to any fact or set of facts, but in determining where the greater weight of the evidence is, you may take into consideration the opportunities of the witnesses for seeing and knowing what they testify to or about, the probability or improbability of its truth, and you may also take into consideration the connection, if any, between the witnesses and the parties, their interest in the result of the suit and their conduct while testifying.”

The objection to this instruction is that it' told the jury some of the things they were to consider in determining on which side the preponderance of the evidence lay but wholly omitted the number of witnesses. In the case of E., J. & E. Ry. Co. v. Lawlor, 229 Ill., 621, the court in discussing an instruction containing these words, “The jury are instructed that the preponderance of the evidence in a case is not necessarily alone determined by the number of witnesses testifying to a particular fact or state of facts,” after reviewing the previous holdings on instructions containing the same statement, said, “We do not think it can be said this court has given its unqualified approval of this instruction or that it might not be misleading in a case where the question of numbers was important and no other instruction was given to supplement it.” In this case this instruction was not supplemented, and it is apparent that the number of witnesses was important. They stood as a matter of fact in the ratio of one to ten, and the number should have been considered by the jury. The instruction was also bad in that it omitted other elements, such as candor, or lack of candor, bias or lack of bias, of the witnesses.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Mary A. Coleman, Appellee, v. James Connolly et al., Appellants.
    Gen. No. 4,935.
    1. Vendor and vendee—when latter acquires right to possession of real estate. A vendee of real estate has no right of possession before he obtains a deed unless the contract so specifies or the vendor voluntarily lets him into possession; nor does a tender of the balance of the purchase price confer the right to possession.
    2. Forcible entry and detainee—what issue not involved in. The issue of title is not involved in a forcible entry and detainer proceeding.
    Forcible detainer. Appeal from the City Court of Aurora; the Hon. E. M. Mangan, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    J. P. Callan and A. C. Van Patten, for appellants; Raymond & Eewiiall, of counsel.

      Sears & Smith, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This is an action in forcible detainer instituted by Mary A. Coleman, appellee, against James and Mary Connolly, appellants, before a justice of the peace. The complaint charged appellants with unlawfully withholding from appel-' lee possession of lot three in block ten, of Clark’s Seminary addition to Aurora, Kane county, Illinois. There was a judgment for appellee, an appeal to the City Court of Aurora, Illinois, trial before the court without a jury, judgment for appellee and this further appeal.

The evidence shows that Pierce Cummings owned the real estate in question and died testate in 1893. His will named as executors and trustees his two daughters, Anastasia and Elizabeth Cummings, and in section 9 directed that the income from this and other property he divided between his wife Margaret and his three children, one-third to his wife and the remainder divided equally among the three children or the survivor or survivors; and empowered the trustees to sell the property and invest the purchaser with complete title, and give one-third of the proceeds to his wife if she be then living, and the remainder to his three daughters, Anastasia, Elizabeth and Margaret in equal parts, or to the survivor or survivors, share and share alike. The will further provided that if one of the trustees or executors died, failed to act, or became disqualified, then his daughter, Margaret Cummings, on reaching her majority, should become her successor. On October 31, 1893, Anastasia and Elizabeth Cummings were appointed executors. About 1901 Elizabeth Cummings died. Anastasia became Mrs. Healy and moved to St. Paul, Minnesota. Margaret became Mrs. Byrne, and on July 28, 1904, was appointed executrix of said estate. After Mrs. Healy moved to Minnesota, she appointed J. P. Callan her agent in Aurora and authorized him to sell the property in question. After Mrs. Byrne moved to Chicago, she authorized one Hotz, her agent in Aurora, to take care of this and other property. Callan obtained an offer of $1,000 from James Connolly for the property and communicated the offer to Mrs. Healy, who wrote him to close the trade. On July 29, 1904, Callan accepted $60 from Connolly and gave him a receipt or memorandum in the following words and figures:

“Aurora, Ill., July 29, 1904.

Received of James Connolly sixty ($60.00) to apply on purchase of the Cummings House and Lot No. 442 South Broadway, Aurora, Ill., price of house and lot to be $1,-000.00.

Stessia Cummings Healy, Executor, J. P. Callan, Agent.”

A deed ivas prepared and sent to Mrs. Healy which was executed by her. It was then sent to Mrs. Byrne who refused to execute it and it was never delivered. At the time the memorandum was signed and delivered to Connolly, a tenant was in possession of the property. Some six months later the tenant vacated and Connolly put a lock on the door and afterwards moved into the house.

On February 5, 1907, Margaret Cummings, the widow, Anastasia Healy and Charles G. Healy,. her husband, and Margaret Byrne and John T. Byrne, her husband, by quitclaim deed, conveyed the property in question to Mary A. Coleman, appellee, in consideration of $1,250.

. Connolly does not claim that he had any authority from Mrs. Healy to put a lock on the door or to move into the house, but does urge that he had a conversation with Hotz, agent for Mrs. Byrne, after he put the lock on the door but before he moved into the house, in which Hotz consented to his talcing possession. Connolly testified that when Ilotz discovered that he had locked the house, he told him he "would break the lock, put him out, and rent the house, but after he had some talk with Hotz and showed him the receipt or memorandum, and said to him, “I am after buying it,” Ilotz said, “All right.” If Hotz had authority to bind his principal in this matter, which does not appear from this record, this remark did not amount to consent for Connolly to enter into possession.

A vendee of real estate has no right of possession before he obtains a deed, unless the contract so specified or the vendor voluntarily lets him into possession. William v. Forbes, 47 Ill., 150; Chappell v. McKnight, 108 Ill., 570. It will be observed that the memorandum or receipt of July 29, 1904, signed by Callan as agent of Anastasia Cummings Healy, was silent as to the question of possession, and the record fails to disclose that Mrs. Healy or her agent Callan consented that Connolly might take possession. It is true the evidence shoivs that Connolly tendered the balance of the contract price, but that is of no force in establishing the right of possession. Connolly, therefore, entered the premises without right, and the right of action to recover the possession of the premises so invaded by him vested at once in the then owner of the property (Fitzgerald v. Quinn, 139 Ill., 165), and such right of action did not pass to the assignee of the party in whom it so vested. Dudley v. Lee, 39 Ill., 339. Connolly went into possession nearly two years prior to February 5, 1907, the date of the deed upon which appellee bases her right of possession of the premises and the right of possession at that time was in the parties who held the legal title, whether it was the trustees or devisees under the will of the said Pierce Cummings; and if the same was in the grantors of the deed to appellee, that right did not pass by said deed.

This being a proceeding involving the right of possession only, we are not called upon to settle the question of title arising from the alleged contract on the one hand and the deed to Mary A. Coleman on the other. Fitzgerald v. Quinn, supra. Therefore.it is immaterial for the purposes of this hearing whether the title to the premises in controversy was in the widow and children of the testator or in the" trustees under the' will. The action of forcible detainer is a special statutory proceeding and must be brought by the person whose possession has been invaded. It is an action by such person to be restored to the possession, and one suing under the forcible detainer act must show a* right of possession in himself, and he cannot rely on a lack of right in those whom he seeks to dispossess. McIlwain v. Karstens, 152 Ill., 135; Fitzgerald v. Quinn, supra. The facts do not show that appellee had any right of possession in the premises invaded, therefore she is not entitled to maintain this action.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Estate of P. S. Kempton, Appellee, v. John Funk, Appellant.
    Gen. No. 4,938.
    1. Propositions of law—what not presentation of. It is not a presentation of propositions of law, within the meaning of the statute, to offer in evidence the hill of exceptions showing the propositions of law which were passed upon at a previous hearing of the cause.
    2. Propositions of Law—when statute with regard to, has no application. The statute providing for the presentation of propositions of law applies only to those cases where the parties are entitled to a trial by jury and waive such right.
    3. Res judicata—when former judgment is. The judgment of the Appellate Court in one appeal of a cause is res judicata in a subsequent appeal of all questions decided upon the first appeal.
    Contested claim in court of probate. Appeal from the Circuit Court of Livingston County; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed in part and reversed in part.
    Opinion filed March 11, 1908.
    Chase Fowler, for appellant.
    White & Tuesburg and A. C. Norton, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This case was decided by this court, and the opinion rendered therein is entitled Funk v. Kempton, 123 Ill. App., 100, where the judgment of the Circuit Court was affirmed, except in so far as it held that a certain claim of Funk against the estate of Kempton was barred by the Statute of Limitations. This court granted an appeal to the Supreme Court, which appeal was dismissed by that court, Funk v. Kempton, 221 Ill., 436. Thereafter, the case was redocketed in the Circuit Court of Livingston county, and another trial had. The case was an appeal from a judgment of the County Court in relation to certain matters of account between appellant Funk as the surviving partner of a firm and the individual creditors of the deceased partner. - The facts are stated in detail in our former opinion, Funk v. Kempton, supra. On the last trial in the Circuit Court, appellant offered in evidence the bill of exceptions appearing in the record of the former trial, which included a number of propositions of law, some of which were “refused” and others “held,” and here assigns as error the rulings of the trial court upon these propositions of law, as if they had been offered at the last trial of the case and had been so acted upon by the court conducting that trial. The record discloses that at the last trial no propositions of law were offered and none either held or refused. Offering in evidence the bill of exceptions of the former trial, which included the propositions of law and the action of the court thereon at the first trial, was not presenting those propositions for the ruling or decision of the court at the last trial, nor did the offering of these propositions and the former rulings raise any question for our consideration on this appeal. Moreover, there was no obligation on the court below to pass on propositions of law. Section 41 of the Practice Act, which is the only warrant for the submission of propositions of law, provides that in all cases where both parties agree that both matters of law and fact may be tried by the court, either party may submit propositions of law. The section only applies to those cases where the parties are entitled to a trial by jury, which right they may waive and submit propositions to the court. The People v. C. B. & Q. R. R. Co., 231 Ill., 112. It is indispensable that the parties should agree to a trial of the cause by the court without a jury to enable the court to proceed under that section. Hermann v. Partridge, 79 Ill., 471. It does not govern any case which is to be tried by the court without the intervention of a jury in the absence of agreement or consent of parties, Martin v. Martin, 170 Ill., 18; Clifford v. Gridley, 113 Ill. App., 164. The parties were not entitled to a trial by jury in this case.

At the last trial appellant offered an alleged report of the partnership affairs which had been rejected by the court at the former hearing, and which action of the court in rejecting such report we had approved in our former decision. The court again refused to accept and approve it, and ordered appellant to file a report in accordance with the former opinion of this court. Appellant thereafter did file a report appearing in the record, in which he stated that it was a report of the partnership accounts and in compliance with the ruling of the Appellate Court. He therein protested against being required to state and submit such an account; nevertheless he conceded by the express language of the report so filed, that the report was in accordance with the terns of our former- decision. The report so filed by appellant under protest the trial court approved, except in one particular. It required appellant to charge himself with interest at the rate of 5 per cent per annum on the balance in his hands, from March 11, 1903, to April 16, 1907. We reverse the charge for said interest for the reasons stated by us in our opinion filed this day in No. 4949, Kempton et al. v. People, Post, p. 563.

The argument of appellant here is mostly devoted to undertaking to show that our former decision was incorrect. We consider that question settled in this court by our former decision.

The judgment of the lower court is therefore reversed as to the charge for interest against appellant, and is in all other respects affirmed.

Affirmed in part and reversed in part.


text:
    Crawford McKnight, Appellee, v. Guy Mowat et al., Appellants.
    Gen. No. 4,941.

      Contracts—when executory contract merged in deed. A contract providing for the sale and conveyance of real estate becomes merged in the deed conveying such real estate where the deed made in pursuance of such contract embraces and contains all the subjects covered in the executory contract.
    Action commenced before justice of the ‘ peace. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas E. Worthington, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    F. H. Tiohenor, for appellants.
    Dailey & Miller, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

On July 18,1904, Guy Mowat, Frank Gift and D. S. Long doing business as the Park Review Land Association, by G. T. Mowat, secretary, entered into articles of agreement under seal with Crawford McKnight for the sale of a lot described as No. 20, in block 5, in Park View, Peoria. The contract provided that for a consideration therein stipulated, the vendor should convey the premises therein described by warranty deed clear of encumbrances, and that the vendee should pay all taxes, assessments or impositions that might he legally levied thereon subsequently to the year 1904. August 15, 1904, the final payment stipulated for in the contract ivas made and a deed for the premises executed and delivered to the wife of the purchaser as his agent, and duly recorded. The deed recited, “This conveyance is made subject to all taxes and special assessments and special taxes thereon, all of which the grantee herein hereby assumes and agrees to pay.” In March, 1904, the city of Peoria passed an ordinance organizing a sewerage district in which the premises were located. "Under the ordinance, an assessment of $140.40 was levied on the premises, payable in installments with interest at 5 per cent per annum on the deferred payments. The assessment roll was confirmed August 5, 1904, and the assessment entered September 11, 1904. On May 1, 1905, McKnight caused to be paid the first installment with interest, amounting to $17.64. On March 30, 1906, he paid the second installment, $20.23. On June 12, 1906, he brought suit before a justice of the peace of Peoria county to recover these amounts from Guy Mowat, Prank Gift and D. S. Long, and obtained judgment. There was an appeal to the Circuit Court of said county, trial without a jury and judgment rendered in favor of McICnight for $37.80, and this further appeal by Mowat, Gift and Long.

It appears from the record, that the contract preceding the deed contained no subject whatever not incorporated in the deed. In other words, the deed made in pursuance of the contract embodied and contained all the subjects contained in the executory contract. Appellants insist that the executory contract merged in the deed, and that such deed is a new agreement between the parties, and the only evidence of their undertaking, and cite and rely upon Laflin v. Howe, 112 Ill., 253; Howes v. Barker, 3 Johns. (N. Y.), 506; Williams v. Hathaway, 19 Pick., 387. In Howes v. Barker, supra, a contract had been executed by the parties, by the terms of which defendant sold plaintiff for nine pounds per acre, a certain tract of land. The money was to be paid and a deed made the first of the following April. At the time specified the deed was made, and the premises rvere therein described as containing 275 acres. The purchase money, nine pounds per acre, was paid. Afterward, in measurement, the tract of land was found to contain only 263 acres and the action was brought to recover back the money paid for the 12 acres. The court held that the contract between the parties was executory, and having been executed and consummated by the deed subsequently executed and delivered, the original agreement became void and of no further effect. Williams v. Hathaway, supra, was a similar case. The action was brought to recover money overpaid in the purchase of a tract of land. The land when sold was represented to contain 15 acres, and was sold at a certain price per acre. A deed was subsequently given in which the land was conveyed for $75.75 per acre, but the land in measurement did not hold out. The plaintiff was however defeated, the court bolding that all prior statements and proposals were merged in the deed.

In Laflin v. Howe, 112 Ill., 253, the court in referring to these two cases said: “It will be observed that in both the cases cited the contracts preceding the deeds contained no subject whatever not incorporated in the deeds,—in other words, the deed made in pursuance of the contract embraced and contained all the subjects contained in the executory contract, and ivhen such is the case the prior agreement merges in the deed, and can no longer be resorted to for the purpose of evidence between the parties. These cases were both cited and approved in Witbeck v. Waine, 16 N. Y., 532.”

The contract in the case at bar embraced but one subject and the deed made pursuant thereto embraced and contained the same subject and no other. Applying the rule announced in the Laflin case, supra, we hold that the contract merged in the deed and was no longer efficient evidence between the parties, and that the terms of the deed could not be questioned by oral testimony. If we are correct in our view of the law, it is clear that appellee is not entitled to recover back the money paid for the assessments levied in 1904, in an action at law. Whether he might be heard in equity for a reformation of the deed, we are not here called upon to consider. We deem it unnecessary to consider appellants’ other reasons urged for a reversal of this judgment.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Eilert Bauman, Appellee, v. John A. Stoller, Appellant.
    Gen. No. 4,948.
    1. Evidence—when admission of incompetent, will not reverse. The admission of incompetent evidence will not reverse a judgment when rendered by the court in a trial without a jury if the competent evidence supports the finding and judgment.
    2. Propositions op law—when not subject to review. Propositions of law not set out in the brief and argument, nor discussed therein, will not he considered on review.
    3. Conveyances—when deed passes fee; when not. When a statutory warranty deed is made without saying “his heirs and assigns,” it passes the fee to the grantee if there are no other words in the deed indicating a contrary intention, hut if a contrary intention appears in the instrument, then the words “convey and warrant” will not grant the fee to the persons named, hut will subject the conveyance to all of the conditions, restrictions and limitations specified in the deed.
    4. Vendor and vendee—when latter not bound to pay purchase price. A vendor cannot force a vendee to pay the purchase price and receive a defective conveyance.
    Assumpsit. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Egbert Henning and McIldust & Thompson for appellant
    Thomas Kennedy and A. 0. Horton, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

On October 15, 1908, John A. Stoller, appellant, and Eilert Bauman, appellee, entered into articles of agreement whereby in consideration of $18,960 Stoller agreed to convey to Bauman, in fee simple, clear of all encumbrances, by a good and sufficient warranty deed, two 80-acre tracts of land located in Livingston county, subject to two mortgages aggregating $6,550 which Bauman was to assume as a part of the consideration above stated. He paid $1,500 cash in band, and the balance, $11,210, was to be paid January 1, 1904, on delivery of deed. An abstract showing merchantable title in Stoller at date of delivery was to be delivered for examination October 15, 1903, and the deed was to be delivered January 1, 1904. Bauman was to examine the abstract and raise objections thereto, if any, within ten days from date of said articles. The articles contained a stipulation that the sum of $1,500 be fixed as liquidated damages against the party failing to perform, but that this should not debar either party from requiring specific performance. Time was made of the essence of the contract. Bauman presented objections to the title in ten days. Another contract in writing was made extending the time of performance to January 8, 1904, on which day Bauman tendered the balance of the purchase price due, but refused to accept the deed tendered by Stoller because the abstract did not show a merchantable title. Stoller filed a bill in chancery to compel specific performance of the contract, to which a" demurrer was interposed and sustained, with leave to amend. Stoller not .availing himself of the leave to amend, the bill was dismissed without prejudice. Bauman then brought this suit in the Circuit Court of Livingston county against Stoller to recover the $1,500 he had paid on the contract, with interest thereon, and the $1,500 specified in the contract as liquidated damages. The declaration contained the common counts and a special count on the contract, to which a demurrer both general and special was interposed and overruled. A stipulation was entered into reciting that a plea of the general issue had been filed, and stipulating that all evidence on behalf of defendant, .admissible under any pica properly pleaded, should be admitted under the general issue, and that all evidence admissible under any proper replication should be admitted in like manner. The payment of the $1,500 wras not questioned. Before the pleadings were settled or the stipulation in reference thereto made, the court wTas requested by the attorneys to determine whether the $1,500 stipulated for in the contract should be treated as a penalty or as stipulated damages. The court examined the contract and informed counsel that, in his opinion, the terms of the contract fixed the $1,500 as stipulated damages which the court would enforce. ¡Neither party excepted to such ruling, but they stipulated that no proof should be offered on the question of damages. The court heard the proofs and found the issues for Bauman, and entered judgment herein for $3,251.81 and costs. Stoller prosecutes this appeal.

It appears from the evidence that appellant obtained his title to the 80 acres described in the articles of agreement as the W. 1/2 of the S. E. 1/4 of section 18, T. 27, N. R. 3, E. 3 P. M., from Frank Doyle, his wife joining, who obtained whatever title thereto he possessed from Lawrence Doyle, his wife joining, wdiich latter deed is in words and figures as follows:

“This indenture witnesseth, tha— the Grantors, Lawrence Doyle and ¡Rose Doyle his wife, of Waldo, in the County of Livingston and State of Illinois, for and in consideration of the sum of Two Thousand Four Hundred Dollars, in hand paid, Convey and Warrant to Frank Doyle of the Town of Waldo, County of Livingston and State of Illinois, the following described real estate, to-wit: The west half of the southeast quarter of section eighteen (18), township ¡No. twenty-seven (27), north of range three (3), east of the third principal meridian. Said Frank Doyle shall not have power to reconvey this land unless it be to the grantors. He shall not have power to mortgage the land and in ease the said Frank Doyle should die before his wife dies and any chil— survive him the surviving children and his wife shall have the use of said land above described during the lifetime of his wife, when it shall go to his children if any are living, but if at the death of grantee no children survive him the title shall be in grantor. Should any children survive the grantee and his wife also survive him she shall have no interest in said land only so long as she remains unmarried and is his widow, situated in the County of Livingston in the State of Illinois, hereby releasing and waiving all rights under and by virtue of the Homestead Exemption Laws of this State.

Dated, This Thirteenth day of April, A. D. 1882.

Lawrence Doyle, [Seal]

Rose, Doyle, [Seal]”

The foregoing is the deed to which appellee objected, and on account of which he refused to take the title. Except for the limitations therein, it is a statutory warranty deed. The words “convey and warrant to Frank Doyle,” contained in the deed, appellant contends, notwithstanding the limitations appearing in said deed, should be read under the statute to mean to convey and warrant to Frank Doyle, his heirs and assigns, and that these words, notwithstanding the later limitations in the deed, convey to Frank Doyle a fee simple title, and that the restrictions and qualifications in the latter part of the deed are, either an attempt to mount a fee upon a fee or to turn the previously granted fee into a life estate, and that this cannot be done with the first words of grant conveying a fee, and that the rest of the deed is void. If that contention is correct, appellant tendered a good title to appellee and is not liable to refund the money paid on the contract price, or liable for the stipulated damages. If that contention is incorrect, the deed conveyed an interest in the land to the children of Frank Doyle who should survive him.

It appears from the evidence that in 1882, when this deed was made, Frank Doyle had one or two children, and that at. the time of the trial, he had twelve or thirteen, apparently several of them minors. It further appears that Frank Doyle obtained another deed to the same premises from Lawrence Doyle, which stated that it was for the purpose of removing the restriction contained in the deed of 1882, and to give Frank Doyle an absolute title. It is manifest that, if the deed of 1882 gave the children of Frank Doyle a contingent remainder, the grantor could not afterward by deed divest them thereof. If they had a contingent remainder in the land, it was impossible for appellant to convey a merchantable title.

Appellant contends that the trial court erred in a number of instances in admitting evidence. The- trial was without a jury and the admission of incompetent evidence will not reverse if the competent evidence supports the finding and judgment. Merchant’s Despatch Transportation Co. v. Jorsting, 89 Ill., 152; Kreiling v. Northrup, 215 Ill., 195.

It is insisted that the court erred in holding propositions of law for appellee and in refusing propositions of law for appellant. They are not set out in brief and argument, nor there discussed, and we are not called upon to hunt them out and consider them.

There is but one important question in the case.. If Frank Doyle obtained a fee simple title to the 80 acres described in the deed from Lawrence Doyle and wife in 1882, the deed appellant tendered conveyed a merchantable title and the judgment is wrong. If the deed conveyed only a base fee or life estate, and conveyed either the fee or a contingent remainder to his children who survived him, then the judgment is right.

We are of the opinion that the deed of 1882 from Lawrence Doyle and wife to Frank Doyle comes clearly within the rule enunciated in the case of Riggin v. Love, 72 Ill., 553, since followed and approved in Welch v. Welch, 183 Ill., 237; Cover v. James, 217 Ill., 309, and Miller v. Mowers, 227 Ill., 392. In the Eiggin case, the court said in holding that the habendum clause of a deed might not be repugnant to the granting clause, “We concede the habendum cannot perform the office of divesting the estate already vested by the deed and that it is void if it be repugnant to the estate granted. But where no estate is mentioned in the granting clause, then the habendum becomes efficient to declare the intention, and it will rebut any implication which would otherwise arise from the omission in this respect in the granting clause.”

Under the authority above quoted, we hold the law to be that where a statutory deed is made without saying, “his heirs and assigns” it passes the fee to the grantee, if there are no other words in the deed indicating a contrary intention ; but if a contrary intention appears in the instrument, then these words “convey and warrant” will not grant the fee to the persons named, but will be subject to all the conditions, restrictions and limitations specified in the deed. We therefore hold that this deed did not convey to Frank Doyle a fee simple title to the real estate therein described. Moreover if Doyle did take the fee and the limitations were void, there is sufficient in the language employed to raise a reasonable doubt of the deed conveying a fee and to make the title doubtful and therefore not merchantable, and not in compliance with the contract. In the case of Street v. French, 147 Ill., 345, it is said: “A doubtful title which a purchaser will not be compelled to accept is not only a title upon which the court entertains doubts but includes also a title, which although the court has a favorable opinion of it, yet may reasonably and fairly be questioned in the opinion of other competent persons.” It is a familiar rule that the vendor cannot force the purchaser to pay his money and receive a defective title. Lancaster v. Roberts, 144 Ill., 213; Eggers v. Busch, 154 Ill., 604. The judge who sustained the demurrer to the bill for specific performance must have held the same. The judge who tried the case held the same. Appellee’s contract for a merchantable title did not require him to take the title subject to such infirmities. It is true the Doyle deed only covered 80 of the ICO acres contracted for, but appellee could not be compelled to take part of the land unless he chose. Weaver v. Wilson, 48 Ill., 125; Lancaster v. Robert, supra.

Finding no error in the record, the judgment is affirmed.

Affirmed.


text:
    J. Emery Laub, Appellee, v. Joel M. DeVault, Appellant.
    Gen. No. 4,794.
    1. Vendor and vendee—when latter cannot recover purchase price. A vendee cannot recover any sum paid upon the purchase of land upon the ground that the agreement was to convey a clear title when as a matter of fact the land in question was encumbered, unless it appears that such vendee was entitled to a conveyance prior to the full payment of the purchase price.
    2. Evidence—when witness not permitted to testify after refreshing recollection. It is true that a witness may refresh his recollection from any memorandum made toy him or made under his direction, tout before he can toe heard to testify he must toe able to say that after examining the memorandum he does remember that he had a personal knowledge of the subject.
    3. Evidence—when printed statutes not competent. Held, that printed statutes purporting to show the laws of a sister State are not competent where they do not purport to have been published by authority, notwithstanding the same are accompanied by a certificate signed by the attorney-general and secretary of state of the State in question, in which such officers certify that they had examined and compared the book in question and were satisfied that it contained all the laws of a general nature in force at the time of the certificate.
    Assumpsit. Appeal from the Circuit Court of Peoria County; the Hon. Leslie D. Puterbatjgh, Judge, presiding.
    Heard in this court at the April term, 1907.

    Reversed and remanded.
    Opinion filed March 11, 1908.
    Barnes & Magoon, for appellant; C. N. Barnes and Quinn, Quinn & Otman, of counsel.
    Jos. A. Weil, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

J. Emery Laub, appellee, brought suit in assumpsit in the Circuit Court of Peoria county, against Joel M. De Vault, appellant, to recover $1,300 with interest thereon, paid on the purchase price of land in Kansas. The declaration contained the common counts only, to which a plea of the general issue was interposed. There was a trial and verdict for appellee for $1,518.10, a motion for a new trial overruled, judgment entered on the verdict, and this appeal.

Appellant urges as reasons for the reversal of the judgment that a recovery cannot he maintained on the common counts; that the court erred in the admission of evidence; that appellee could not rescind the contract and maintain suit without first- tendering payment and demanding a conveyance of the land, and that certain instructions given for appellee were improper.

Appellee’s contention is that the contract was oral and made in Lacon, Illinois, in May, 1903, and that the balance of the contract price was to he paid the first of January, 1904, when appellant was to furnish good title to the land or refund him his money. Later, the date of the settlement was changed from January 1 to January 7, 1904. On the trial he introduced evidence which if competent tended to show that there was a mortgage and oil leases on the land which were encumbrances.

If appellee’s contention is correct that the contract for the sale of the land was oral, then it was not enforceable and appellee could sue and recover back the money under the common counts as money had and received for his use, without showing defects in the title or offering any excuse for failure to take the land. Appellant’s contention is that the contract was in writing and made in Cherryvale, Kansas.

Where the contract was made, and whether it was oral or in writing, are questions upon which the evidence is conflicting with an apparent decided preponderance in favor of appellant’s contention. If the contract was in writing and appellee paid the money thereon as appellant contends, then appellee could not recover back the consideration advanced merely upon proof of encumbrances upon the land, for the reason that appellant had until appellee tendered the final payment in which to remove the encumbrances and perfect the title (subject, of course, to the Statute of Limitations). Augsberg v. Meredith, 101 Ill. App., 629, and cases there cited. Appellee did not claim that he tendered the money due under the contract.

Appellant introduced in evidence a land contract dated May 14, 1903, purporting to be between S. O. Adams and wife and J. E. Laub, providing for the sale by first party to second party of the N. E. ¼, section 10, T. 32, R. 17 (being the land in question), for $5,800, and providing that the second party assumed one certain mortgage of $2,000, to Deming Investment Co. of Oswego, Kansas, and also subject to all conditions of a gas and oil lease, dated May 15, 1899, given by A. G. McCormick and wife to the Cherryvale Gas Co., and also providing that the first party reserves the crop of 1903, and pays the second party 6 per cent interest on $700 paid May 14, 1903, to January 1, 1904, and providing that $3,000 be paid January 1, 1904. Said contract was signed as follows:

“S. O. Adams, [Seal]

Belle B. Adams, [Seal]

J. M. DeVault, [Seal]

Ag’t for J. E. Laub,”

Appellant and three other witnesses testified that appellee was in Cherryvale, Kansas, on the 14th day of May, 1903, the day of the execution of the contract, and that they were present in the office of one Hannum at the time apjiellee produced a draft for $1,300, payable to appellant, and that when the draft was tendered as part payment of the land it was remarked by Hannum that the draft was payable to appellant and appellee told appellant to get the money on the draft and to sign the contract for the sale of the land as his agent.

To refute this testimony appellee testified that he was not in Cherryvale, Kansas, on the 14th day of May, 1903, but was in Lacon, Illinois, and that he did not authorize appellant to sign the contract as his agent. To corroborate his testimony as to his whereabouts on May 14, 1903, appellee produced one L. H. Allen, a lumber dealer in whose employ he was when at home, who testified over appellant’s objection, that appellee was in Lacon, Illinois, May 12, 13, 14, 15 and 16, 1903; that his firm kept a scratch book which they posted into the journal, that the entries were made by the person waiting on the customer, that it contained original entries made either by himself or appellee on the days above mentioned and that the entries were true and correct, lie also testified that appellee was in their yard working for him May 12, 13, 14, 15 and 16, 1903, that he -had a transaction with appellee on the 12th of May, 1903, involving $1,000, and that three entries in the scratch book on that date were in Laub’s handwriting. He stated on cross-examination that he had no independent recollection aside from what the books and papers showed where Laub was on the 14th of May, 1903, and that the testimony that he had given as to where he was on the 12th, 13th, 14th, 15th and 16th of Hay, 1903, was simply what he thought his books showed and not his independent recollection, and that he had no recollection of the date of the $1,000 transaction aside from what his books showed. Whereupon appellant moved the court to exclude the evidence of Allen as to Laub’s being in Lacon continuously from May 12 to May 16, inclusive, 1903, and assigned in support of the motion, his testimony that he merely gave his notion of what his books, papers and memoranda showed and not his recollection. The court denied the motion and appellant preserved an exception thereto.

We are of the opinion that when it appeared, as it did by Allen’s cross-examination, that he had no personal knowledge of appellee’s whereabouts on the days mentioned, and no recollection thereof after examining the book, this evidence should have been excluded and the jury instructed to disregard the same. It is true that a witness may refresh his recollection from any memoranda made by him or under his direction, but before he can be heard to testify, he must be able to say that after examining the memoranda, he does remember, that he had a personal knowledge of the subject.

In Dunlap v. Berry, 4 Scammon, 327, it said, “It has been held by this court that a witness may use a memorandum to refresh his memory, but while the witness may use the memorandum to refresh his memory he must be able to state that he remembers the facts. If he had no recollection of the circumstances and can only say they are true because he finds them on his memorandum it would not be proper to permit the witness to either read or speak from the memorandum * * * but the witness must be able to say the facts therein noted are true.”

Allen did not claim that he remembered appellee’s presence on either of the days mentioned, and it is not strange as he did not make the memoranda and he had no definite personal means of knowing its truth. The book was not admitted in evidence and properly. But to exclude the book and permit evidence of the entries to remain in the record as was the case in not excluding from the record Allen’s testimony of appellee’s whereabouts on the day it was claimed appellee was in Cherryvale, Kansas, which he testified was based upon what he thought his memoranda showed, is, in our opinion, clearly erroneous and may have influenced the jury in their verdict.

If it had been shown that the entries on the hook had been made from day to day in the regular course of business so that the entries could not have been interpolated and could not have been made except on the day on which they purported to have been made, and that they were in appellee’s handwriting, then the hook in connection with that testimony would have been competent, because if appellee made an entry in that hook in Lacón, Illinois, on the day the contract was made in Cherryvale, Kansas, he must have been in Lacón and could not have been in Cherryvale, Kansas, at the same time.

If appellant’s version of the contract is correct, then the evidence of the encumbrances on-the land introduced by appellee was insufficient, for the reason that certain sections of the statutes of Kansas were essential to establish the existence of the mortgage and oil leases. It is true that appellee offered and the court admitted over appellant’s objection, sections 1731 and 4820 in a hook the title page of which reads as follows:

“General Statutes of Kansas —1901—

Authenticated.

Being a compilation of all the laws of a General ¡Nature, including the Session Laws of 1901.

Based upon the General Statutes of 1868.

And Dassler’s Compiled Laws of 1885.

Annotated to and including Kansas Reports, Volume 61, and Kansas Appeals Reports, Volume 9.

By ¡F. O. Dassler Of the Leavenworth Bar.

Crane & Company, Publishers, Topeka, Kansas.

1901.”

As a basis for the introduction of said sections, appellee offered in evidence a certificate signed by the attorney-general and secretary of state of the State of Kansas, in which they stated that they had examined and compared the General Statutes of Kansas, 1901, and were satisfied that they contained all the laws of a general nature now in force. Section 10, chapter 51, Hurd’s R. S. 1905, entitled “Evidence and Depositions,” provides, “The printed Statutes of the United States and of this State, and of the several States, of the territories and late territories of the United States, purporting to be printed under the authority of said United States, any State or territory, shall be evidence in all courts and places in this State, of the acts therein contained.” In McCraney v. Glos, 222 Ill., 628, in construing this section, the court held that the printed statutes of Iowa purporting to be printed under the authority of said State were admissible in evidence. In this case the title page referred to showed that the statutes offered in evidence were published by Crane & Company, Topeka, Kansas, but there is nothing to show that it was done under the authority of the State of Kansas. Statutes are sometimes published by private enterprise, but a book so published is not by our statute made competent proof of their due passage or any other formality required to make them admissible. We do not consider that the certificate of the attorney-general and the secretary of state met the requirements of section 10, chapter 51, Hurd’s R. S. 1905, and therefore the admission in evidence of the Kansas Statutes was error.

As the case must be remanded for another trial, we deem it unnecessary to consider the other questions argued.

Eor the errors indicated, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Annie Haaren Appellee, v. Frank T. Miller, Administrator, Appellant.
    Gen. No. 4,952.
    1. Administration act—section 6S construed. Section S of the Probate Court Act adopts section 68 of the Administration Act except where there is language in the Probate Court Act distinctly contrary thereto; and appeals thereunder may he taken in the same manner as appeals are taken from a justice of the peace to the Circuit Court, except that the bond must he approved by the Probate Court and cannot he filed in the Circuit Court, but must be filed in the Probate Court.
    2. Appeals and errors—when appeal from Probate Court properly perfected. An appeal perfected by filing and having approved a bond within twenty days after the date of the judgment entered by the Probate Court is properly perfected notwithstanding the order for the appeal was not taken at the term at which the judgment was entered.
    Contested claim in court of probate. Appeal from the Circuit Court of Peoria County;. the Hon. Nicholas E. Worthington, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    Dan E. Sheen, for appellant.
    Charles C. Dutch, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Appellee, Annie Haaren, filed a claim for $3,000 in the Prohate Court of Peoria county, against the estate of Meent DeVries, deceased, of which estate appellant was administrator. A trial was had resulting in a verdict for $2,000 in favor of appellee, upon which judgment was entered November 27, 1906, from which an appeal was prayed and an order filed in said canse as of the November term, 1906, fixing the amount of the bond for such appeal with its surety to be approved by the court, the same to he approved within twenty days from the date of judgment, which order was signed by 1. O. Eagleton, judge of the Probate Court, who took office on the first Monday of December, 1906. Said order was “filed” December 8, 1906, but when it was made does not appear. It may be that the incoming judge qualified and assumed the duties of his office the first Monday of December before the November term was adjourned, and signed this order of appeal, which is entitled of the November term, then closed that term and opened the December term, but we will assume that the order was entered after the close of the November term but less than twenty days after judgment was entered on the claim. On December 17, 1906, appellant filed his appeal bond in conformity with said order, and it was approved.

On March 12, 1907, claimant and appellee here moved the Circuit Court to dismiss the appeal for failure of the administrator to perfect it at the term at which judgment was obtained. The court heard the argument of counsel, sustained the motion and dismissed the appeal on the ground that section 68, chapter 3, entitled “Administration of Estates” was by implication repealed by section 11 of the Probate Court Act. From this ruling appellant prosecutes this further appeal.

It is contended by appellee that under the Probate Court Act an appeal must be prayed at the term of court at which the judgment was rendered, and this judgment having been rendered at the November term and the appeal not having been prayed until the December term, the appeal is void.

Section 8 of the Probate Court Act, Hurd’s Statutes, 1905, provides: “The process, practice and pleadings in said court shall be the same as those provided for the probate practice in county courts of the State, and all laws now in force or which may hereafter be enacted concerning wills, or the administration of estates, shall govern and be applicable to the practice in Probate Courts of this State.”

Section 68, chapter 3, Hurd’s Statutes, 1905, entitled “Administration of Estates” provides: “In all cases of the allowance or rejection of claims by the County Court, as provided by this act, either party may take an appeal from the decision rendered to the Circuit Court of the same county, in the same time and manner appeals are now taken from justices of the peace to the Circuit Courts, by appellant giving good and sufficient bond "with security to be approved by the county judge.”

Section 11 of the Probate Court Act provides: “Appeals may be taken from the final orders, judgments and decrees of the Probate Court to the Circuit Court of their respective counties in all matters, except in proceedings on the application of executors, administrators, guardians and conservators for the sale of real estate, upon the appellant giving bond and security in such amount and upon such condition as the court shall approve.”

This section does not change the requirement of section 68, only in that it excepts from the orders of the Probate Court appealable to the Circuit Court proceedings on the application of executors, administrators, guardians and conservators for the sale of real estate. The methods of appeal under the two sections are the same except that in an appeal from the County Court, the bond must be approved by the county judge instead of the court.

We are of the opinion that section 8 of the Probate Court Act adopted section 68 of the Administration Act, excepting where there may be something in the Probate Court Act distinctly contradictory thereto, and appeals thereunder may be taken in the same manner as appeals are taken from a justice of the peace to the Circuit Court except that the bond must be approved by the Probate Court and cannot be filed in the Circuit Court but must be filed in the Probate Court.

Section 11 of the Probate Court Act requires practically the same thing as is required by' section 68 of the Administration Act, save that it expressly excepts proceedings for the sale of real estate on the application of executors, administrators, guardians and conservators, from the matters appealable to the Circuit Court. The amount and condition of the bond for the appeal in this case were fixed by the court and the bond was approved by the court and filed within twenty days of the date of the judgment, which in our opinion entitled appellant to an appeal, notwithstanding the order for an appeal was not taken at the term judgment was entered, the practice in such cases being governed by the method of appealing from a judgment of a justice of the peace. The justice of the peace writes and signs his docket and his jurisdiction over the case is ended, but yet he may within twenty days from the date of rendering judgment approve an appeal bond and thereby an appeal is perfected.

In Barker v. Estate of Thompson, 98 Ill. App., 78, the court said: “The practice in appeals from the Probate Court to the Circuit Court is the same as on appeals to the latter court from justices of the peace.”

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Langford R. Greene, Appellant, v. Burton H. Hitchcock.
    Gen. No. 4,953.
    1. Appeals and errors—what order final and appealable. An order dismissing a petition to probate a will is final and appeal-able.
    2. Practice—right of petitioner to dismiss application for probate of will. A party petitioning for the probate of a will may dismiss the petition even after appeal taken and pending in the Circuit Court.
    Petition for probate of will. Appeal from the Circuit Court of Peoria County; the Hon. Nicholas B. Worthington, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Judson Starr and Winslow Evans, for appellant.
    Si-ieen & Miller, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Phœbe Rose died September 14, 1904, leaving an instrument purporting to be her last will, in which Burton H. Hitchcock was named as executor. He presented it to the Probate Court of Peoria county with a petition that it be admitted to probate, declining himself to act as executor, but asking that Jefferson E. Greene, eldest brother of deceased, be appointed in his stead. Hotice -was given to the heirs and legatees. On October 20, 1904, Hitchcock filed a new petition, following the former petition except in the particular of his refusal to act as executor, which refusal he withdrew. At the February term, 1905, of said court, there was a hearing and the will wras admitted to probate, and from that order Langford E. Greene, a brother and heir at law of deceased, who took nothing under the will, appealed to the Circuit Court, where the will was again admitted to probate. The cause was then appealed to the Supreme Court, where the judgment of the Circuit Court probating the will was reversed and the cause remanded to the Circuit Court. During another hearing in the Circuit Court, but before its conclusion, the proponent Hitchcock filed a written motion asking leave to dismiss the proceedings. Thereupon Lang-ford E. Greene, appellant here, filed a cross motion to strike the motion for leave to dismiss from the files, supporting his motion by an affidavit. This motion the court overruled and allowed the motion to dismiss and entered an order directing the clerk of the Circuit Court to turn over all papers and files in the case to the Probate Court, and ordered that appellant recover from appellee, the executor of the last will of Phcebe Eose, deceased, his costs and charges in that behalf expended, said costs to be paid in due course of administration. Langford E. Greene, appellant in the Circuit Court, prosecutes this further appeal.

Hitchcock, appellee here, moved to dismiss this appeal and the motion was taken with the case. The motion is denied for the reason that in our opinion the order dismissing the proceedings was final and therefore appealable.

It was the contention of appellant, Greene, in the Circuit Court at the last hearing, that by the appeal the question of the probate of the will had been committed to the jurisdiction of the Circuit Court, and the parties in interest being before the court, that under the act of 1897, while the proponent might obtain some order relieving him from any future responsibility for costs, he could not dismiss the proceedings nor deprive the court of jurisdiction to pass upon the question whether or not the will should be admitted to probate, and that the court erred in permitting the proceeding to be dismissed but should have retained jurisdiction and proceeded to hear and decide the case.

Interesting arguments have been made by counsel for the respective parties on the question whether or not the person who petitions to the Probate Court for the probate of a will may after the case has reached the Circuit Court on appeal by some other party in interest, dismiss the proceedings.

We find ourselves relieved from the necessity of considering these arguments and the authorities cited in support thereof by the decision in Senn v. Gruendling, 218 Ill., 458. In that case the executor of the will of one John Senn filed his petition in the County Court for probate of said instrument. Probate was denied and the petitioner appealed to the Circuit Court. After the evidence was heard in the Circuit Court, but before judgment, the court on motion of the petitioner, dismissed the proceeding and granted leave to withdraw the petition. Later, the public administrator of the county applied for letters of administration, which were issued to him. Still later, the executor filed a new petition making a second application for probate of the will. Some of the heirs at law who were contestants moved to dismiss the petition on the ground that the former judgment refusing probate was still in force. This motion was not acted upon, and the cause was again heard, and probate of the will refused. In the Circuit Court on appeal, by the petitioner, the contestants renewed their motion to dismiss on the ground that the question of probate was res adjudicaba, but the motion was denied. A hearing was had in the Circuit Court and the will was admitted to probate. From that judgment an appeal was taken to the Supreme Court. Error ivas assigned on the refusal of the Circuit Court to dismiss the petition on the motion of the contestants.

The court in passing on the question raised by this assignment of error said: “Any person interested in the probate of a will may exhibit the same in the County Court and petition the court for probate thereof, and the person instituting such proceedings becomes the proponent of the will. Any party interested in the alleged will may appear and resist the probate and he thereby becomes a contestant. The petitioner has a right to control his own petition and to dismiss it whenever he chooses. When there is a decision by the -County Court, any person interested in the will may appeal to the Circuit Court. The party taking an appeal has a right to control his appeal and to dismiss it at pleasure, and in that event the judgment of the Probate Court is left in full force and effect. (In the matter of Storey, 120 Ill., 244.) The judgment of the County Court is superseded by an appeal and if the petition is dismissed, in the Circuit Court, the whole proceeding is at an end and there is no bar to a new proceeding. (Thompson v. Owen, 174 Ill., 229.) The petitioner has the same right to dismiss the petition in the Circuit Court as in the County Court.” In Schofield v. Thomas, 231 Ill., 114, it is held that the petitioner has the right to control his petition, and the appellant has the like right to control his appeal.

In this case the petitioner dismissed the petition to probate the will, and such dismissal of the petition terminates the whole proceeding and is not a bar to a new proceeding.

By appellants argument we are asked in effect to hold that the Supreme Court did not mean what it said in Scnn v. Gruendling, supra, and we are urged to overrule that decision, which we have neither the authority nor the inclination to do. Evidently the Circuit Court followed that decision and it is equally binding upon us.

The order of the Circuit Court is therefore affirmed.

Affirmed.