text:
    Arwin E. Price, Appellee, v. The Board of Local Improvements of the City of Elgin et al., Appellants.
    Gen. No. 5,974.
    1. Municipal cobpobations, § 398

      —section 83 of Local Improvement Act construed. Section 83 of Local Improvement Act, J. & A. jf 1476, in so far as it may he construed to mean that the board of local improvements is final arbiter upon the question whether the contract for the improvement has been substantially complied with must be regarded as repealed by section 84 of such act as amended in 1903, J. & A. If 1177.
    2. Municipal cobpobations, § 398*—section 84 of Local Improvement Act construed. Under section 84 of the Local Improvement Act as amended in 1903, J. & A. If 1177, where the contractor has finished the work and the board of local improvements considers that the work has not been done in substantial compliance with the contract, the board is required to certify that fact to the court where the assessment was made, and that court has complete jurisdiction to determine whether there was a sufficient compliance with the contract.
    3. Municipal cobpobations, § 393*—jurisdiction to determine compliance with improvement contract. Where an assessment for a local improvement has been made and divided into instalments and the proceeding has been conducted in the County Court, such court has the sole jurisdiction to determine whether the work has been completed in substantial compliance with the contract.
    4. Municipal cobpobations, § 393*—jurisdiction of Circuit Court to determine compliance with improvement contract. The Circuit Court, on petition filed by a contractor for a mandamus to compel the board of local improvements to certify the cost of the work and the amount estimated to be required to pay accruing interest on bonds and vouchers issued to anticipate the collection of the assessment, has no jurisdiction to try the question whether the work was done in substantial compliance with the contract.
    5. Mandamus, § 173*—when order construed as requiring filing of certificate in County Court. An order of the Circuit Court requiring the board of local improvements to certify the cost of an improvement, construed as requiring the certificate to be filed in the Couunty Court when considered with the allegations of the petition and the statute.

      Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Eugene Clifford, for appellants.
    Charles H. Fisher, Ernest C. Luther and William E. Perce, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of .the court.

The city of Elgin duly adopted an ordinance for the improvement of Walnut avenue in said city. A contract therefor was duly let to Arwin E. Price for $41,163.07. The contractor proceeded with the work and claimed that he had completed it according to contract. The contract provided that it should be paid for by ten annual assessments, and the proceeding to levy assessments was conducted in the County Court of Kane county. The board of local improvements of said city refused to certify to said court the completion of said work. Price sued the city to recover the balance remaining due him. The Supreme Court held that that was not his remedy. Price v. City of Elgin, 257 Ill. 63. Thereupon he began this suit by filing, in the Circuit Court of Kane county, a petition against the said board of local improvements and the respective members thereof, for a mandamus, to compel said board to certify in writing to the County Court of Kane county the cost of the work and the amount estimated to'be required to pay accruing interest on bonds and vouchers, issued to anticipate the collection of said assessment, and to take the steps and proceedings prescribed by section 84 of the Local Improvement Act. (J. & A. fí 1477.) In said petition, Price set forth fully the ordinance and the contract, and alleged that he had completed the work and that the board refused to so certify. Eespondents filed an answer in which they alleged that in various respects the work done by Price did not comply with the contract ; and they denied that they were required to make any certificate until the work had been completed to their satisfaction, and they denied the jurisdiction of the court. Petitioner demurred to said answer and the demurrer was sustained. Eespondents elected to abide by their demurrer. There was a final judgment, that a peremptory writ of mandamus issue to said board, commanding it to forthwith certify in writing the cost of the improvement, and the amount estimated by the board to be required to pay accruing interest on bonds and vouchers and to state in said certificate whether or not said improvement conformed substantially to the requirements of the original ordinance for the construction of the improvement, and to make an application to said court to consider and determine whether or not the facts stated in said certificate are true, and to take the steps and proceedings required by section 84 of the Local Improvement Act. This is an appeal by the respondents from that judgment.

The original act concerning local improvements, in force July 1, 1897 by section 83 thereof, required the work to be done to the satisfaction of the Board of Local'Improvements, and section 84 contained nothing to the contrary. Section 84 was amended in 1903. As amended, it required the Board of Local Improvements within thirty days after the final completion and acceptance of the work to cause the cost thereof to be certified in writing to the court in which said assessment was confirmed, together with the amount estimated to be required to pay accruing interest on bonds or vouchers issued to anticipate collection, and it provided what should then be done in said proceeding, and it provided that if the assessment had been divided into instalments “it shall also be the duty of the board of local improvements to state in said certificate whether or not the said improvement conforms substantially to the requirements of the original ordinance for the construction of the improvement, and to make application to said court to consider and determine whether or not the facts stated in said certificate are true.” The section then provided for an order fixing the time and place for hearing the matter and for notice thereof, and for a hearing and for a determination of the matter in a summary manner, which order, it provided, should be conclusive upon the parties, and that no appeal or writ of error should be allowed therefrom. And it provided, if the court found that the improvement had not been completed in substantial accord with the ordinance, how and in what manner it should be completed, and what procedure should thereafter be followed. The language of the amended section 84 is not entirely harmonious, and there are places in it which imply that the certificate filed by the board will be that the contract has been complied with. Nevertheless, when the whole section is considered together, we conclude that we are not at liberty to hold that the words “whether or not,” in the above extract from said section, were passed by the Legislature through inadvertance, as counsel for appellants insist is the case, but rather, that we must give them due effect. As this section is not in harmony with section 83 (J. & A. 1476), we must hold that section 84 as amended repeals so much of section 83 as is in conflict with the new section 84. Lang v. Friesenecker, 213 Ill. 598. If the provisions of section 83 meant that the Board of Local Improvements were the final arbiters upon the question whether the work had been performed in substantial compliance with the contract, and the contractor had no redress against their adverse decision, unless they were guilty of fraud, that provision must be considered as abrogated by the amended section 84; and we hold it to be the meaning of that section, when fully considered—and notwithstanding some contradictory language—that if the contractor has finished the work, and the hoard considers that the work has not been done in substantial compliance with the contract, it is then required to certify that fact to the court where the assessment was made, and that court has complete jurisdiction to determine whether the contract has been fully performed, and, if not, to determine in what particulars it has not been fully performed, and to set in motion the machinery by which the Board of Local Improvements shall cause the work to be completed. In this case, the assessment had been made and had been divided into instalments and the proceeding had been conducted in the County Court of Kane county, and it therefore had sole jurisdiction to determine whether the work had been completed in substantial compliance with the contract, and the Circuit Court in this proceeding could not determine that question because jurisdiction over that subject-matter had already been acquired by the County Court. It could not well be that the County Court could have jurisdiction to finally decide the question, and at the same time the Circuit Court could try and decide the same question, in a proceeding where an appeal would lie from its decision. We are of opinion that the Circuit Court properly refused to try the question whether the contract had been complied with, and properly directed the Board of Local Improvements to file a certificate in the County Court, which will bring that question before that court, and it can direct further steps if the work has not been fully completed pursuant to contract. The order appealed from is vague, in that it does not expressly state in what court a certificate is to be filed. But when the allegations of the petition and the statute are considered together, it is plain that it means the County Court of Kane county.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Whitney

license: Public Domain

text:
    The People of the State of Illinois, Appellee, v. Joseph Richardson (Levi Richardson, Appellant).
    Gen. No. 5,886.
    (Not to he reported in full.)
    Abstract of the Decision.
    I. Bail, § 47

      —effect of mistake of date in bail bond. Where a bail bond was given on October 15, 1912 requiring the appearance of the accused at the next term of court to be held on June 6, 1912 instead of 1913 held that the mistake in the date of the next term of court would not render the bond a nullity, that the parties signing the bond were bound to know at their peril the first day of the next term of court, and that the insertion may be regarded as surplusage.
    2. Municipal coepobations, § 9*—jurisdiction of police magistrates. Under the constitution and laws of this State a police magistrate is given the same jurisdiction as a justice of the peace.
    Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Action "by the People of the State of Illinois against Joseph Richardson and Levi Richardson on a bail bond given by the principal charged with rape on preliminary examination before a police magistrate. From a judgment against defendants, -Levi Ricardson appeals.
    H. L. Richardson and Stephen R. Moore, for appellant.
    Wayne H. Dyer, for appellee.

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

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

   Mr. Justice Whitney

delivered the opinion of the court.

3. Bail, § 29 —jurisdiction of police magistrate to take bail bond. Police magistrate has jurisdiction upon preliminary examination of accused on charge of rape to take a bail bond.

4. Cbiminal law, § 44*—jurisdiction of police magistrate. A police magistrate has jurisdiction to hold a preliminary examination on a charge of rape.


text:
    Jefferson J. Greene, Defendant in Error, v. Anna E. Schwing, Plaintiff in Error.
    Gen. No. 5,911.
    (Not to he reported in full.)
    Error to the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Scire facias by Jefferson J. Greene against Anna E. Schwing to revive a judgment which was recovered against Anna E. Schwing and her husband in an action of assumpsit, in which an attachment was issued and a bond given, but judgment was in favor of defendants on the attachment issue. The pleas interposed to the scire facias were: (1) nul tiel record; (2) release of the judgment for value; (3) payment of the judgment. There was a fourth plea, to which a demurrer was sustained and leave was given to file an additional plea, which alleged an agreement between Greene, Schwing and one Hall, and that Greene, before signing the agreement, demanded a release of liability on the attachment bond and also alleged that certain shares of stock mentioned in the contract were set off to Schwing and placed in a bank for security, that Greene assigned his judgment to said Hall, that the assignment is in full force and effect and has never been reassigned to Greene, and that he has no interest or title in the judgment. A replication was filed to such plea denying the assignment. There was a judgment entered in favor of plaintiff on a directed verdict,, and to reverse the judgment, defendant prosecutes a writ of error.
    Abstract of the Decision.
    Judgment, § 616

      —what not a defense to scire facias to revive judgment. On scire facias to revive a judgment, where the defendant pleaded as a defense that the plaintiff had assigned the judgment to a third party pursuant to a contract entered into between them and such third party, and a replication was filed to the plea, held that the contract, though admitted in evidence, constituted no defense to the action and that the court did not err in refusing to admit it in evidence, there being no offer to show, payment of the judgment, and no evidence to show the judgment had been assigned; and also held that even if it had been assigned such assignment would constitute no defense to the action, since the assignee could recover in a suit brought in the name of the assignor.
    Keithley & Keithley, for plaintiff in error.
    Judson Starr, for defendant in error.

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

   Mr. Justice Whitney

delivered the opinion of the court.


text:
    Swan Carlson, Appellee, v. Chicago Great Western Railroad Company, Appellant.
    Gen. No. 5,919.
    (Hot to be reported in full.)
    Appeal from the Circuit Court of De Kalb county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed with finding of facts.
    Opinion filed July 31, 1914.

      Abstract of the Decision.
    Railroads, § 876*—when evidence insufficient to show negligence in killing of stock. In an action against a railroad company to recover the value of a mare and colt which had escaped to the highway and were killed by being struck by a train, a recovery for plaintiff held not sustained by any evidence showing negligence on the part of the company, it not appearing that the engineer or firemen saw the animals, and not appearing inconsistent with the theory that they rushed on the track in front of the train because of being frightened.
    Statement of the Case.
    Action by Swan Carlson against Chicago Great Western Railroad Company to recover for stock killed by defendant’s train. The declaration consisted of two counts, the first alleging failure to give statutory signals and the second alleging negligent operation of the train. From a judgment in favor of plaintiff, defendant appeals.
    Faissler, Fulton & Roberts, for appellant.
    H. S. Earley, for appellee.
   Mr. Justice Whitney

delivered the opinion of the court.


text:
    John Schick, Appellant, v. Otto C. Smith, Appellee.
    Gen. No. 5,923.
    I. Vendor and purchaser, § 317

      —when verdict disallowing recovery of purchase money sustained hy the evidence. WTiere, in an action for a balance of the purchase price claimed to be due for land sold by plaintiff to defendant and a certain sum alleged to be due for some hay, the defense was that defendant had paid the full amount of the purchase price agreed on for the land and that plaintiff had agreed to board with defendant for the value of the hay, but had quit boarding without cause, held that a verdict for defendant was sustained by a preponderance of the evidence.
    2. Appeal and errob, § 1535*—when erroneous instruction as to ■preponderance of evidence harmless. Where an instruction was given, advising the jury that if plaintiff did not in the first instance prove his case by a preponderance of the evidence, they should find for the defendant, held that though the instruction was erroneous as depriving plaintiff of the benefit of his rebuttal evidence, and of any evidence offered by defendant which tended to establish plaintiff’s case, yet the giving of the same did not harm plaintiff where no such evidence was offered.
    Appeal from the Circuit Court of Carroll county; the Hon. Richard S. Farrand, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    George L. Hoffman and Henry Mackay, for appellant.
    Ralph E. Eaton, for appellee.

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

   Mr. Justice Whitney

delivered the opinion of the court.

John Schick, appellant, owned a farm and Otto C. Smith, appellee, was his tenant. Appellant was old, his wife was dead and he lived alone until appellee came on his farm as a tenant. Appellant hoarded with appellee about two months and then the proposition was made that appellee buy the farm. Appellant and appellee had a verbal arrangement at the house and they went to a real estate agent to have the deed drawn. The real estate agent asked what consideration should be inserted in the deed, and was told by appellant $125 an acre and it was figured there was one hundred" and thirteen acres in the farm. A deed was drawn stating the consideration to be $14,125. Before it was drawn up one or the other of the parties, either appellant or appellee, asked the question, “if it was necessary that the true consideration be stated, ’ ’ and the real estate agent said, No. The deed was signed, acknowledged and delivered and a note for $9,000 was drawn np and signed by appellee, payable to appellant which was not secured by mortgage, but was subsequently paid. The parties then went to a bank where appellee paid appellant $3,000, and a receipt was drawn up for $5,125, and it bears a signature which appellant denies is his, but we are satisfied the preponderance of the proof shows it to be his genuine signature. The receipt was delivered to appellee. Appellant boarded for awhile with appellee and then quit boarding with him and he now brings this suit to recover $2,125, alleged balance of the purchase money for the land and $200 for some hay which he had on the farm and which appellee had used. Appellee testified-appellant quit boarding at his house voluntarily and without cause, except that he got angry and swore at the women folks. Appellee also testified appellant was at liberty to board at his house until he had boarded there for two years.

Upon reading the evidence it seems clear to us there is a preponderance against appellant, and that the preponderance of the evidence is that appellant sold his farm to appellee for $12,000, which amount has been paid in full,"and that he sold the hay and was to board out the amount of the hay. It also appears he never demanded the privilege of going back to his boarding house, or to board out the balance of the hay, and that he had no cause for leaving.

It is claimed there is error in one instruction given for appellee. Under that instruction the jury were advised that if the plaintiff in the suit did not in the first instance prove his case by a preponderance of the evidence, the jury were directed to find a verdict for the defendant. If appellant had offered rebuttal evidence to establish his case this would deprive him of the benefit of it, but he offered no rebuttal. If there was evidence offered by the defendant in the case which tended to establish the plaintiff’s case, the plaintiff was entitled to the benefit of that, and- this instruction would deprive him of the benefit of it, but there was no such evidence. The error in the instruction did not harm appellant, and we see no cause for reversal by reason of the giving of that instruction. Seeing no reversible error in the record, we affirm the judgment of the court below.

Judgment affirmed.


text:
    Joseph T. Ryerson & Son, Appellee, v. Crawford Locomotive & Car Company, Appellant.
    Gen. No. 5,934.
    (Not to he reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed with damages.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Action by Joseph T. Byerson & Son against Crawford Locomotive & Car Company in assumpsit, in which the declaration contained the common counts only with an affidavit of the amount due and a copy of the account sued on. A default was entered against defendant and proofs were heard and the damages assessed in the amount named in the affidavit filed with the declaration, and there was a judgment against defendant therefor. To reverse the judgment, defendant appeals.
    The grounds relied on for reversal are: That the court erred in denying defendants motion for a continuance, on the ground that no copy of the account sued on was filed with the declaration; that it was error to default defendant without first entering a rule on bim to plead; that it was error to allow default without notice to defendant of the time and place of hearing the motion; that it was error to assess damages without notice to defendant of the time and place of such assessment; that it was error to render judgment against defendant without first striking its motion for a continuance from the files; and that it was error to enter judgment where it does not appear that any evidence was heard.
    Abstract of the Decision.
    1. Continúan ce, § 3

      —when failure to file sufficient copy of account sued on not ground. A defendant is not entitled to a continuance on the ground that there was no copy of the account sued on filed with the declaration, where there was in fact a sufficient copy of the account filed with .the declaration to satisfy the statute.
    2. Pleading, § 148*—remedy when copy of account sued on not specific. Where a defendant is not satisfied with a copy of the account sued on, it is incumbent upon him to move for a hill of particulars or a more specific account.
    3. Appeal and error, § 1258*—when appellant cannot complain of amount of recovery. The fact two copies of the account sued on are contradictory in amount cannot be complained of on appeal, where the judgment was entered for the lesser amount.
    4. Appeal and error, § 980*—necessity of rules of court appearing in record. Where rules of court governing the subject of pleading are not shown in the record, the Appellate Court will assume there are none.
    5. Notice, § 62*—when party hound to take notice of subsequent action of court. In the absence of a rule of court to the contrary, one who is in court by service of process or appearance is hound to take notice of all subsequent action on the part of the court.
    6. Judgment, § 99*—when defendant not entitled to notice of motion for default. A defendant is not entitled to notice of the hearing of a motion for default, where the rules of court do not provide for such notice.
    Robert E. Larkin, for appellant.
    Boys, Osborn & Griggs, for appellee; Eric Winters, of counsel.

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

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

   Mr. Justice Whitney

delivered the opinion of the court.

7. Continuance, § 60 —necessity of striking motion from files after ruling thereon. Where a motion for a continuance has been denied by the court, it is unnecessary to strike the motion from the files, and it is not proper to do so.

8. Appeal and error, § 1568*—when error of clerk in entering up default harmless. Error of the clerk in entering up a default judgment, by writing it up as a judgment for want of an “appearance” instead of for want of a “plea,” held not reversible error.

9. Judgment, § 126*—remedy when entry of default ■irregular. Where the entering of a default judgment was irregular, held it was the duty of the defendant, on appearing in court the next day and during the same term of court, to have moved to set aside the judgment instead of taking an appeal.

10. Costs, § 67*—damages for prosecuting appeal for delay. Four hundred dollars allowed as damages for prosecuting an appeal for delay.


text:
    Kendrick E. Bills, Appellee, v. Arthur B. Cooling, Appellant.
    Gen. No. 5,949.
    (Not to he reported in full.)
    Appeal from the Circuit Court of V/hiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Action "by Kendrick E. Bills against Arthur B. Cooling to recover four months’ rent claimed to have accrued since defendant had vacated the premises. The facts show that defendant had occupied a building under a three-year written lease at a stipulated rental payable monthly, and that he held over eight months of the fourth -year and then vacated the premises. There was a judgment for plaintiff on the theory that defendant had become a tenant from year to year and that when he held over into the fourth year he became liable for the whole year’s rent. To reverse the judgment, defendant appeals.

      Abstract of the Decision.
    1. Appeal and error, § 1411

      —when verdict will not be disturbed. In an action for rent, on the theory that defendant as a holdover tenant was liable as a tenant from year to year, where the defense was that there was an arrangement that defendant was to hold over as a tenant from month to month, held that a verdict for plaintiff on conflicting evidence would not be disturbed.
    2. Landlord and tenant, § 88*—when tenant holding over liable for full year’s rent. A tenant for three years who held over after the expiration of the lease for eight months and then moved out, held liable for the whole of the fourth year’s rent, on the theory that he became a tenant from year to year (following Clinton Wire-Cloth Co. v. Gardner, 99 Ill. 151.)
    Carl E. Sheldon, for appellant.
    Henry C. Ward and Philip H. Ward, for appellee.

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

   Mr. Justice Whitney

delivered the .opinion of the court.


text:
    Harry G. Thomas, Appellee, v. Addison J. Platt, Mayor, Appellant.
    Gen. No. 5,952.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    ¡Statement of the Case.
    Petition filed by Harry Gr. Thomas for a writ of mandamus to compel Addison J. Platt, mayor of the city of Sterling, to sign a warrant for electrical services rendered for the city by the petitioner, the warrant having been made- ont by the clerk after the city council voted to allow the bill. Despondent demurred to the petition, but before the court acted on the demurrer he filed his answer to the petition. Petitioner filed a demurrer to the answer and the demurrer was sustained. Respondent elected to abide by his answer and a writ of peremptory mandamus was ordered. To reverse the order, respondent appeals.
    Abstract of the Decision.
    1. Mandamus, § 156

      —filing of answer as waiving demurrer. The filing of an answer operates in law as a waiver of a demurrer to the petition.
    2. Mandamus, § 154*—when answer to petition to compel mayor to sign warrant demurrable. A demurrer to an answer filed to a petition for a writ of mandamus to compel the mayor of a city to sign a warrant for services rendered the city, after the city council had audited the bill and the warrant was issued, held properly sustained, where the answer alleged that the services were not rendered at the request of the chairman of the committee, but admitted many allegations of the petition and practically admitted that petition was to have quantum meruit compensation, and it not appearing that the services were not worth the sum voted.
    3. Municipal corporations, § 1152*—when duty of mayor to sign warrant. It is the duty of the mayor to sign a warrant for services rendered the city, though there was no valid contract for the services, where the city accepted the services and the city council voted to allow the bill, and the warrant was made out on a proper fund and signed by the proper clerk and the sum voted for the services was a reasonable compensation for the services.
    John M. Stager and Henry C. Ward, for appellant.
    A. A. Wolfersperger, for appellee.

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

   Mr. Justice Whitney

delivered the opinion of the court.


text:
    In re Estate of Christian Wresche. Emma Ackman et al., Appellants, v. Christian C. Wresche et al., Appellees.
    Gen. No. 5,962.
    (Not to he reported in full.)
    Appeal from the Circuit Court of McHenry county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Proceeding on appeal by Emma Ackman and Dora Tbies in the matter of the estate of Christian Wresehe to the Circuit Court from an order of the County Court admitting the will of Christian Wresehe to probate. A hearing was had in the Circuit Court and the testimony of the subscribing witnesses was introduced. From a judgment finding the instrument to be a will, the appellants in the Circuit Court prosecute this appeal.

      Abstract of the Decision.
    Appeal and ebbob, § 1803

      —when reversal should he with renmndment. On appeal from an order of the Circuit Court finding in favor of a will, where the record does not show that the paper which the subscribing witnesses swore they signed and the testator signed was the will, the Appellate Court should not reverse without remanding.
    Appellants urge that the judgment be reversed without remanding.
    Edward D. Shurtleff, for appellants; C. P. Barnes, of counsel.
    No appearance for appellees.

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

   Mr. Justice Whitney


text:
    The People of the State of Illinois, Appellee, v. Louis Thexton, Appellant.
    den. No. 5,963.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Du Page county; the Hon. Mazzini Slussee, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Action by the People of the State of Illinois against Louis Thexton to recover, a- penalty for the violation. of tiie automobile law, the offense charged being the running of an automobile at a rate of speed prohibited by statute. Judgment was entered against defendant for five dollars penalty. To reverse the judgment, defendant appeals.

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

      —when finding of guilty of unlawful speed sustained by evidence. In an action to recover a penalty for running an automobile at a rate of speed prohibited by statute, a finding of guilty held sustained by sufficient evidence.
    2. Automobiles and garages, § 1*—necessity of intent to constitute violation of automobile law. The only intention necessary to render a person liable to a penalty for a violation of the automobile law is the doing of the act prohibited.
    3. Appeal and error, § 1715*—when objection to remedy for review waived. The right of appellee to raise the question that the case could only he presented for review by a writ of error is waived by joining in a stipulation as to the hill of exceptions and filing briefs in the Appellate Court.
    J. C. Murphy and E. L. Lyon, for appellant.
    Charles W. Hadley, for appellee.

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

   Mr. Justice Whitney

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Emily Jane Ray, Appellee, v. John DeWalt, Appellant.
    Gen. No. 5,965.
    (Not to he reported in full.)
    Appeal from the County Court of Marshall county; the Hon. Walter A. Clinch, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Action hy the People of the State of Hlinois ex rel. Emily Jane Bay against John DeWalt charging the defendant with being the father of a bastard child of Emily Jane Bay. From a judgment of conviction, defendant appeals.
    Abstract of the Decision.
    Instructions, § 48

      —when instruction as to weight of evidence misleading. An instruction in a bastardy proceeding telling the jury that the most convincing evidence was on the side of the People, and also telling the jury that the law is that the most convincing evidence is on the side of the People without regard to the number of witnesses, held misleading, and the giving of the same reversible error.
    Homer Barney and Quinn, Quinn & McGrath, for appellant.
    Henry E. Jacobs, for appellee.

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

   Mr. Justice Whitney

delivered the opinion of the court.


author: Mb. Justice Whitney

text:
    The M. G. Ogle Co-Operative House Furnishing Company, Appellant, v. J. I. Shauman, Appellee.
    Gen. No. 5,970.
    1. Assignments, § 8*—right to assign future wages hy power of attorney. A workman cannot execute a power of attorney to authorize the assignment of wages to be earned in an employment which he is not engaged, and has no contract for, at the time of the execution of the power of attorney.
    2. Assignments, § 3*—right of workman to assign wages. A workman cannot by himself assign wages to be earned in a future employment for which he has not contracted at the time of the assignment.
    Appeal from the Circuit Court of Warren county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.

      Hanna & Laudeb, for appellant.
    Saffobd & Gtbaham, for appellee.
   Mb. Justice Whitney

delivered the opinion of the court.

This action was begun before a justice of the peace in a suit by appellant to recover wages of a workman for appellee, an assignment of which wages appellant claimed under a power of attorney given by the workman before he engaged in the employment. On appeal to the Circuit Court defendant had judgment. Plaintiff appeals. The real question in the case is, can the workman execute a valid power of attorney which will authorize his attorney in fact to assign wages earned in an employment in which the workman is not then engaged and has no contract for at the time of the execution of the power of attorney.

It is conceded to be the law, and indeed it is the law of this State, that a workman cannot himself assign wages to be earned in a future employment for which he has not contracted at the time of the assignment; but it is urged while he cannot do this himself he may do it by power of attorney. No authority is cited in favor of this suggestion.

An assignment of wages is not operative or valid when made in reference to a new or different contract of employment not then in existence. Mallin v. Wenham, 209 Ill. 252.

Nor can he assign his wages by an attorney in fact authorized by power of attorney, entered into before the contract of employment is made. Stromberg, Allen & Co. v. Hill, 170 Ill. App. 323; Richards v. Inter Ocean Newspaper Co., 181 Ill. App. 515; Blakeslee v. Make-Man Tablet Co., 175 Ill. App. 515.

The employment of the workman was in September, 1912. He executed the power of attorney in question September 25, 1911, and the attorney in fact made the assignment January 17, 1913, so under the authorities above cited this judgment is affirmed.

Judgment affirmed.


text:
    Commissioners of Highways of Town of Tampico, Appellees, v. Drainage Commissioners of Drainage District No. 2 of Tampico and Hahnaman Townships, Appellants.
    Gen. No. 5,828.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Whiteside county; the Hon. Frank. D. Ramsat, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Petition by the Commissioners of Highways of the Town of Tampico against the Drainage Commissioners of Drainage District No. 2 of Tampico and Hahnaman Townships for a writ of mandamus to compel the drainage commissioners to replace a bridge over a drainage ditch where said ditch crosses a certain highway, and to levy an assessment therefor if necessary. The respondents filed an answer and pleas. A demurrer was sustained to certain pleas and issues were joined on the answer and the rest of the pleas. A jury was waived, proofs were heard and a mandamus was awarded pursuant to the prayer of the petition. To reverse the judgment, respondents appeal.
    Cart, E. Sheldon and William Graham, for appellants.
    Henry C. Ward, for appellees.

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

   Per Cubiam.

Abstract of the Decision.

Appeal and ebrob, § 1755 —when judgment will he affirmed hy a divided court. On appeal to the Appellate Court where the judge assigned to write the majority opinion died and the other two judges were unable to agree, held that the judgment would be affirmed, it appearing that there would be a delay of several months before the successor of the deceased judge could consider the case, and it also appearing that whichever party is defeated will take the case to the Supreme Court.


author: Mr. Justice Eldredge

text:
    Adam Hess, Appellant, v. Board of Trustees of the Police Pension Fund of the City of Bloomington, Appellee.
    1. Municipal cobpobations, § 143

      —right of policeman to pension. A policeman is entitled to become a pensioner of fund under chapter 24, p. 876, Hurd’s R. S., J. & A. IT 1877, though his twenty years’ service was not continuous for such period.
    2. Municipal cobpobations, § 143*—sufficiency of demand to he placed on police pension roll. A written application to a trustee of the police pension fund to be placed on the pension roll held a sufficient demand, if any demand is necessary.
    3. Municipal cobpobations, § 143*—section 7 of Police Pension Act construed. Section 7 of the act creating a pension fund for policeman, (chapter 24, p. 376, Hurd’s R. S., J. & A. 1f 1881) has no application to a policeman who has not retired under the act.
    4. Municipal cobpobations, § 143*-—section 1 of Police Pension Act construed. Clause 5 of section 1 of the act creating a pension fund for policemen (J. & A. 1f 1875) does not apply to a policeman who has never been a pensioner.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Mybbs, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed December 27, 1913.
    Rehearing denied April 9, 1914.
    Murray & Morrissey, for appellant.
    A. W. Peasley, for appellee.

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

   Mr. Justice Eldredge

delivered the opinion of the court.

Appellant filed his petition for a peremptory writ of mandamus in the Circuit Court of McLean county to compel the Board of Trustees of the Police Pension Fund of the City of Bloomington, appellee, to designate him as a pensioner of said fund and place his name on the pension roll under an act of the Legislature creating pension funds in cities having a population of not less than 20,000 and not more than 50,000 (chapter 24, page 376, Hurd’s B. S., J. & A. if1877.) The case was tried upon a stipulation of facts and the writ denied.

At the time the act went into effect appellant was fifty-four years of age and had served upon the police force in the City of Bloomington at different times prior to November 17, 1909, a total of twenty-four years, but he had at no time served for a period of-twenty years continuously. On November 17, 1909, he was discharged from the police force and was not a member from that time until May, 1911, when he was reinstated and again began service, and from that time to the present has been on the police force.

It is contended by appellee that twenty years “continuous” service is necessary under the act to entitle a policeman to become a pensioner of a pension fund. The word ‘ ‘ continuous ’ ’ is not used in the act. There are a number of acts providing for pensions for different employments and in only one is the word “continuous ’ ’ used. The act providing for pensions for firemen as amended in 1907 (J.&A. if 1897) provides that the last two years of the employment shall be confirmous, thus indicating that the service for the balance of the time need not have been continuous.

No such expression is used in the act in regard to policemen, and it is clear that if the Legislature had intended that the twenty years’ service should have been continuous it would have so stated. It is also insisted that a formal demand should have been made upon the Board of Trustees by the petitioner to place him upon said pension roll. The statute does not provide for any formal demand. The stipulation of facts shows that the petitioner presented a written application to be placed on the pension roll to one of the trustees. If any demand was necessary this was sufficient. It is also contended that petitioner did not report every thirty days to the Board under section 7 of the act (J. & A. j[ 1881). This section provides that all members of the police force “who may be retired under the provisions of this act, except those who voluntarily retire after twenty years’ service, shall report to the chief of police * * * on the second Tuesday of each and every month,” etc. This had no application to the petitioner because he had not been retired under said act. It is further objected that the petitioner did not contribute to the pension fund under clause 5 of section 1 (J. & A. 1875). This clause provides that one per cent, per month shall be paid or deducted from the pension of every police pensioner. It is apparent that the petitioner never having been a pensioner, there was no duty on him to either pay or have deducted anything from a pension which he did not have.

The judgment of the trial court will be reversed and the cause remanded with directions to issue the writ as prayed for in the petition.

Reversed and remanded with directions.


text:
    T. U. Fox, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 27, 1913.
    Rehearing denied April 9, 1914.
    Statement of the Case.
    Action by T. U. Fox against Chicago & Alton Railroad Company to recover damages for failure of defendant to furnish cars for the shipment of corn. The facts showed that plaintiff ordered cars with grain doors on Aug. 12, 1910, but received no cars equipped with such doors until Sept. 5,1910. Plaintiff desired to sell his corn in East St. Louis, and owing to the delay in getting cars claimed a loss of seven cents per bushel on account of the decline of the market price therefor.
    The jury returned a verdict for one-half the amount.
    To reverse a judgment entered on the verdict, defendant appeals.
    Appellant urges that it was the duty of appellee to have lessened the loss by furnishing the grain doors himself, and that though he had no lumber with which to make doors he should have ordered it from a neighboring city in case there was no lumber yard at the point of shipment.
    Bracken & Young and W. B. Leach, for appellant; Silas H. Strawn, of counsel.
    Livingston & Bach, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Cabbiebs, § 16*—duty to furnish suitable cars. It is the duty of a carrier to furnish cars suitable for the transportation of the commodity for which they were ordered.

2. Cabbiebs, § 16*—when not duty of shipper to furnish grain doors. Where cars are ordered of a carrier for the shipment of grain and the cars furnished are without grain doors, it is not the duty of the shipper to furnish the grain doors himself in order to lessen the loss which might result from a delay in furnishing cars equipped with such doors.

3. Cabbiebs, § 20*—when instruction as damages for delay in furnishing cars incorrect. In an action against a carrier for damages resulting from a delay in furnishing cars, an instruction that the measure of damages is the difference between the market value at the point of shipment at the time the cars should have been furnished and the market price when the cars were actually furnished, held incorrect as confining the market price to that prevailing at the point of shipment.

4. Appeal and eebob, § 1241*—when appellant cannot complain of his adversary’s instruction. Appellant cannot complain of his adversary’s instruction as to the measure of damages where his own given instruction announced the same rule.


author: Mr. Justice Thompson

text:
    Thomas Aston, Appellee, v. Jacob Aston, Appellant.
    1. Limitation of actions, § 94

      —when creditor cannot apply payment to revive barred note. Where a person owes a creditor on several notes, some of which are barred by the statute of limitations, the creditor cannot apply a payment to a barred note so as to revive it except by the direction of the debtor.
    2. Limitation of actions, § 79*^-what not a new promise to pay note. An expression in a letter from the maker of certain notes to the holder, “With regard to the notes * * * I will come over as soon as I can and we will fix it up,” held not to constitute a new promise in writing to pay the notes so as to toll the statute of limitations.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Harris, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed with finding of facts.
    Opinion filed December 27, 1913.
    Rehearing denied April 9, 1914.
    McCormick & Murphy, for appellant.
    Beach & Trapp and Bevan & Bevan, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is a suit begun in April, 1913, in the Circuit Court of Logan county by Thomas Aston upon eight promissory notes made by Jacob Aston, a brother of plaintiff. The declaration consists of special counts declaring on each note and the common counts. The defendant pleaded the general issue and the statute of limitations. To the statute of limitations the plaintiff filed replications of payments averred to have been made on each note within ten years and a new promise in writing to pay each of said notes made, within ten years prior to the beginning of the suit.

The oldest note sued on is dated September 1, 1887, and is for $380, due one day after date with eight per cent, interest. There are indorsed on it a credit of $50 April 1, 1909, and another of $10.69 March 16, 1912. The other notes are for different sums varying from $150 to $400. The last one is dated in April, 1899, and is for $360.75, due in one year, and has credits indorsed on it Feb. 11,1903, $125, and March 16,1912, $5. Each of the other notes bears an indorsement of a credit of $5, of date March 12, 1912.

The case was tried before the court without a jury. The court rendered judgment for plaintiff for $1,112.80, and for costs against the defendant on the note dated September 1, 1887. The defendant appeals.

The notes upon which the suit is brought were all due more than ten years before the beginning of the suit. The statute of limitations is a good defense to each note, unless the plaintiff has proved one of his replications to some of the notes by a preponderance of the evidence, in which event he would be entitled to a judgment on the notes to which he has proved the averments of his replication.

The evidence is clear that on April 1, 1909, the defendant paid $50 to the plaintiff. The evidence of the plaintiff and the defendant is conflicting as to where and how this payment was made, and whether or not the defendant directed on which note this payment should be applied or left its application to the plaintiff. The plaintiff testified that he received the payment by check or draft in a letter and that no application was made of the money by the defendant and that he applied it as a payment on the note of September 1,1887, and that by this payment the bar of the statute was removed.

The defendant testified that he made the payment in cash and that he, the defendant, indorsed the payment on a note for $57.15, dated December 5, 1885. The plaintiff denied that he ever had any such note executed by the defendant.

The evidence of the defendant is corroborated by Cyrus J. McCormick, assistant cashier of the Farmers Bank of Emden, who testified that in September, 1910, the bank at Emden had for collection for the plaintiff against the defendant two notes; that one was a note dated December 5, 1885, due December 7, 1885, made by Jacob Aston to Thomas Aston for $57.15, on which there was indorsed $50, paid April 1, 1909, the collection being bank No. 5,814. The collection register of the bank was produced and showed entries concerning such a note for collection. He also testified that he presented this note to Jacob Aston for collection and that defendant told him to return it to his brother Tom. The defendant also introduced in evidence the following letter written by Thomas Aston in September, 1910, with which he sent two notes to the bank at Emden for collection: “Atlanta, September, 1910. I sent these notes for yon to eolect, entrest on small note $54. dolars 30 cts. balance of note 7 dol. 15 cets. $50 dolars pade april first 1909, entrest on big not $112 dol. 75 cts. one hundred $25 dolars pade on big’ note febery first 1909. balance of big note $235 dolars 75 cts. keep these nots at bank tel pade i put entrest don at 4 per cent, you can count the entrest see if it is rite. Thomas Aston, to W. W. McCormick.” Memorandum stamped thereon, “Beturned unpaid November 10, 1910, No. 5,814-5,815.”

The clear preponderance of the evidence shows that the payment of $50 made April 1, 1909, was credited on a note dated December 5, 1885, not sued on in this case. The plaintiff cannot by changing the credit for this sum from the note it was originally credited on to the note of September 1, 1887, thereby revive the latter note.

The claim of plaintiff that he had the right to and applied the payment of the $50 note of September 1, 1887, and that said note was thereby revived, is also answered by the fact that at the time that payment was made plaintiff held a note for $360.75, dated April 1,1899, due in one year, against which the statute had not run. The statute had run against all the other notes unless some act of the defendant had tolled the running of the statute. There is no direct authority in this State on the question whether an undirected application of a payment made by a debtor, who owes several notes to the same creditor, some of which are and one of which is not barred by the statute of limitations, will raise the bar of the statute when applied by the creditor to one of the notes against which the statute has run so as to revive the cause of action against the unpaid portion of the barred note. The English doctrine is that such application will not take the balance of the debt out of the statute. Mills v. Fowkes, 5 Bing. N. C. 455. Massachusetts, Maine and Colorado follow the English doctrine. Pond v. Will iams, 1 Gray 630; Blake v. Sawyer, 83 Me. 129; McBride v. Noble, 40 Colo. 372. Vermont and Missouri hold the other way. Ayer v. Hawkins, 19 Vt. 26; Shannon v. Austin, 67 Mo. 485. The reasoning of the Supreme Court of Illinois in Lowery v. Gear, 32 Ill. 383, would seem to indicate that that court will follow the Massachusetts rule. The Court in the Lowery case said that “it is a general rule, no doubt, that where a debtor makes a payment without designating to which of several claims it shall apply, the creditor may apply it to which he pleases; but this could not authorize Brown to so apply it as to bind Gear by an implied new promise, without the actual intention of Gear to make such a promise. This was a matter in which Gear must have- had an affirmative intention, before he could be bound.” * * * “If he had no thought or intention one way or the other, even then he could not be held to have made a new promise, for to do that he must have had an affirmative intention.” The payment by a debtor owing an account of a sum not more than sufficient to cover recent items is not sufficient to remove the bar of the statute from items of older date without evidence of the debtor’s intention to apply such payments to that purpose. Miller v. Cinnamon, 168 Ill. 447. The rule deducible from the reasoning in this State and the weight of the authorities would appear to be that the creditor may apply it to any valid and binding indebtedness but that he cannot apply it to revive a debt already outlawed except by the direction of the debtor.

The plaintiff has assigned cross-errors and insists that the court erred in not rendering judgment in favor of plaintiff on all the notes. He contends that other payments were made by the defendant on all the notes within ten years, and that the defendant within ten years prior to the beginning of the suit made a promise in writing to pay the notes.

The credits of date March 16, 1912, were indorsed by R. F. Quisenberry, a banker at Atlanta, at the request of plaintiff. The evidence shows that the defendant, who was in the grain and coal business at Emden, on March 14, 1912, paid taxes amounting to $45.69 on eighty acres of land in Logan county belonging to the plaintiff, and on March 15th forwarded the receipt to plaintiff with a letter, simply stating “I paid your taxes and send you your receipt.” The plaintiff the next day had Quiesenberry indorse $10.69 on the note dated September 1, 1887, and $5 on each of the other seven notes. There is no evidence whatever that the defendant intended the payment of taxes to be applied on any indebtedness of his to the plaintiff, and the defendant testified that his brother’s tenant hauled and delivered grain to him off his brother’s farm: “His renter hauled it in and told me to pay his taxes and keep it out of the grain hauled in. I kept the amount paid for taxes out of grain and settled with plaintiff for balance.” There is no evidence whatever showing that the defendant intended this payment of taxes to be applied on any indebtedness of his to the plaintiff, and the evidence does show that it was not so intended.

The contention of plaintiff that the defendant had within ten years promised in writing to pay the notes is based upon the following letters written by the defendant.

“Emden, Ill., Sept. 9, 1910.
Atlanta, Ills.
Thomas Aston
Well Tom, in regard to the notes you sent over to colect, I will come over as soon as I can and we will fix it up some way, if I can’t come through the week will come over some Sunday.
From Brother,
J. R. Aston.”
“Emden, Ill., Nov. 29, 1911.
Thom Aston,
Atlanta.
Dear Sir:—Thom I will be over before long to see you about the notes. Have them at your house. I may come Sunday; if the notes are at the bank you get them so we can look them over.
Your brother, J. R. Aston.”

The only expression in the letters which could by any possibility be construed into a promise to pay the notes is the expression in the first letter—“Well Tom, in regard to the notes you sent over to colect, I will come over as soon as I can and we will fix it up some way.” This expression either by itself or in connection with the other parts of the letter does not show either an acknowledgment of the debt or an unqualified willingness and intention to pay it. It amounts to a statement that their matters would be explained when they met, and as was said in Wachter v. Albee, 80 Ill. 47, and in Ennis v. Pullman Palace Car Co., 165 Ill. 161, the language used, “we will fix it up some way,” cannot be held to be a promise to pay the debt.

The evidence was not sufficient to authorize any recovery in favor of plaintiff. The judgment is reversed with a finding of facts that the note was barred by the statute and there was neither proof of payment on the note upon which judgment was entered nor a new promise in writing to pay the note.

The clerk will enter the finding of facts in the judgment of this court.

Reversed with finding of facts.


author: Mr. Presiding Justice Thompson

text:
    Lona L. Taylor, Appellee, v. Emma Wilcox, Administratrix, Appellant.
    1. Damages, § 175

      —evidence admissible to show pecuniary condition of party. In an action by a wife for the alienation of her husband’s affections, where the plaintiff sought to show the financial condition of defendant for the purpose of increasing punitive damages, held that the will of defendant’s deceased husband showing defendant was the sole beneficiary and The order of court admitting it to probate were not improperly admitted, but that an affidavit and deposition of subscribing witnesses taken to prove the execution of the will were improperly admitted for the reason they did not tend to prove anything material to the issues.
    2. Damages, § 175*—when inheritance tax appraiser’s report inadmissible to show financial condition of party. In an action by a wife to recover damages for the alienation of her husband’s affections, where the plaintiff sought to introduce evidence of the defendant’s financial condition for the purpose of increasing punitive damages, the admission in evidence of a report of an inheritance tax appraiser in the estate of the defendant’s husband held error, where there was nothing in the record of any order of the County Court appointing the appraiser nor any order of the court confirming such report, and the report did not show that notice was given by the appraiser to the defendant.
    3. Husband and wife, § 278*—damages recoverable in suit for alienation of husband's affections. Although the usual measure of damages for a wife in a suit for alienating her husband’s affections is the value of her support and loss of consortium and for mental anguish and injury to her feelings, she is also entitled to recover for the support of children over twelve years of age where the wanton acts of the defendant caused the hardship to be imposed upon her of caring for such children.
    4. Husband and wife, § 278

      —when instruction in suit for alienation erroneous. In an action by a wife for the alienation of her husband’s affections, an instruction on question of damages held erroneous, in so far as it permitted plaintiff to recover for injury to the good name and character of her family, and for the family’s dishonor.
    Appeal from the Circuit Court of Vermilion county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed May 5, 1914.
    C. M. Crayton and Charles Troup, for appellant.
    A. A. Johnson and R. Allan Stephens, for appellee.

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

Lona L. Taylor brought this action May 1, 1911, in case against Minnie Stark to recover damages for the alienation of the affections of Simon L. Taylor, the husband of plaintiff. A jury returned a verdict for plaintiff for $2,541.71, on which judgment was rendered. The defendant appealed. After the appeal was perfected the death of appellant was suggested, and the appeal is prosecuted by Emma Wilcox, administratrix of the deceased appellant.

V. H. Stark, the husband of Minnie Stark, died testate November 11, 1911. The case was tried in the Circuit Court in December, 1912. The cause of action is such that if plaintiff is entitled to recover damages then the jury may, because of the wilful and wanton nature of the cause of action, give exemplary or punitive damag'es. The plaintiff, for the purpose of increasing the damages, undertook, as she then properly might, to prove the financial condition of the parties. The plaintiff offered in evidence, and the court admitted, over the objection of the defendant, the will of V. H. Stark, the deceased husband of defendant, together with the order admitting it to probate, the affidavit of one of the subscribing witnesses and the deposition of the other taken to prove the execution of the will. This will gives all the estate of the testator after the payment of his debts to the defendant. It is insisted that the court erred in the admission of the will, the proof of its execution and the order of court admitting it to probate. There was no error in the admission of the will and its probate for the reason it showed that the defendant was the owner of all the estate of her deceased husband subject to the payment of his debts, but there was no reason for admitting the affidavit and deposition of the subscribing witness ; they did not tend to prove anything material to the issues in the case.

Plaintiff, by the probate clerk of Vermilion county, identified, “as a part of the records” of the Probate Court, a paper purporting to be a report made to the Probate Court of Vermilion county by W. J. Book-waiter, as inheritance tax appraiser in the estate of V. H. Stark. There is not in the record any order made by the court or county judge appointing Book-waiter inheritance tax appraiser, or any order of the county judge or County Court approving or confirming the report, neither does the report show that notice was given by such appraiser to the defendant; it only states that the appraiser “gave notice by mail to all the persons known to have a claim and interest in the property of said estatethat is simply a statement of a conclusion. The defendant was not a party to the making of the report and she was not concluded by anything in it until she was given notice of the assessment by the county judge and it had been approved by the court. The county judge is required by the statute to assess and fix the value of the estate from the report, and upon his making such assessment notice is required to be given to all parties interested and they may then appeal to the County Court. Until the court had acted on the report it was in the nature of a pleading against her by a third party and its admission was error.

Plaintiff also proved over the objection of defendant that she and her husband had two children, one eleven and the oilier thirteen years of age, and that since her separation from her husband he had not contributed anything to their support and that she had had the care and custody of the children imposed on her. While the statute provides a remedy against a father for abandoning his children under twelve years of age, it does not contain any provision regarding children over that age. If wanton acts of the defendant caused extra difficulty and hardship to the plaintiff, no good reason is urged why she should not recover for such hardships, although the usual measure of damages for a wife in such cases is the value of her support and loss of consortium, and for mental anguish and injury to her feelings. 21 Cyc. 1622.

It is also contended that the court erred in giving an instruction that if the jury found for plaintiff, then in assessing her damages the jury had “the right to take into consideration the value of the support which plaintiff has lost, if any, the shame and mortification of plaintiff, if any, the injury to the good name and character of the plaintiff and her family, if any, the mental anguish and suffering of plaintiff, if any, and the loss of consortium with her husband, if any, because of the dishonor to her family .” We are of the opinion that she was entitled to recover for her own injuries but was not entitled to recover for any injury to the good name and character or the dishonor of her family. Betser v. Betser, 186 Ill. 537; Burnett v. Luttrell, 52 Ill. App. 19; 21 Cyc. 1622.

The giving of exemplary damages was also impressed on the jury by duplicate instructions on that question. Because of the errors pointed out the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Charles Carter, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the County Court of Champaign county; the Hon. William G-. Sfobsin, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 5, 1914.
    Statement of the Case.
    Information by the People of the State of Illinois charging Charles Carter with selling intoxicating liquor in the town of Champaign in Champaign county while the same was anti-saloon territory. The information consisted of twenty counts, the only difference between them being the date on which the sales are alleged to have been made. There was a trial before a jury and the defendant was found guilty on the first twelve counts. Motions for a new trial and in arrest of judgment were overruled and judgment imposing a fine and imprisonment was entered on the verdict. To reverse the judgment, defendant brings error.
    Abstract of the Decision-
    1. Intoxicating diquobs, § 119

      —when date of sales alleged in information immaterial. The date of sales alleged in an information charging a defendant with selling intoxicating liquors in anti-saloon territory is in no way material, provided the averments and the proof bring the offense within the period of the statute of limitations.
    2. Indictment and ineobmation, § 45*-—right of defendant to a till of particulars. Though a defendant in an information is not entitled to a bill of particulars as a matter of right, the State’s Attorney should be required to furnish one where it is máde to appear that defendant cannot properly prepare his defense without it. The rule is that the granting, of a bill of particulars is within the sound discretion of the court
    3. Criminad daw, § 473*—when ruling on question ashed of furor on preliminary examination not reviewable. Action of court in a criminal case in sustaining an objection to a question asked of a juror on preliminary examination, held not to appear erroneous where the record shows that the question was asked among others but such other questions were not in the record, and it does not show but that the question had been answered by the juror in answer to other questions.
    Herrick & Herrick, for plaintiff in error.
    Loins A. Busch, for defendant in error; O. B. Dobbins, of counsel.

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

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

4. Jury, § 80*—when question ashed of jury on preliminary examination is informal. A question asked of a juror on his preliminary examination whether he would presume the defendant not guilty up to the time the jury arrives at a verdict, held informal, since it is the presumption of innocence which the law clothes or accompanies a defendant until verdict.

5. Intoxicating liquors, § 151*—evidence sufficient to prove sale in antisaloon territory. On a prosecution for selling intoxicating liquors in a town which was antisaloon territory, evidence held sufficient to show that the town was antisaloon territory at the time alleged in the information, where the People introduced in evidence the record of the town clerk showing the results of an election on the question whether the town should become anti-saloon territory and the results of all subsequent elections on the question whether the town should remain antisaloon territory, and the returns in the poll hooks of the different precincts were also offered in evidence and verified the accuracy of the record made by the clerk.

6. Evidence, § 225*—when testimony should he excluded as hearsay. On a prosecution for selling intoxicating liquors in antisaloon territory, testimony of witness who was engaged in a transfer business that his driver had delivered beer at defendant’s place of business, held improperly admitted for the reason it was hearsay, where it appeared that the witness had never delivered anything to defendant’s place of business nor seen anything delivered there. .

7. Witnesses, § 207*—when extent of cross-examination within discretion of court. The extent of the cross-examination of a witness as to his previous place of residence and occupation, held to be within the reasonable discretion of the court.

8. Witnesses, § 206*—when witness cannot he cross-examined. On a prosecution for selling intoxicating liquor in antisaloon territory, where a witness testified on direct examination only as to his place of residence a week before the trial, and nothing further was asked of him, and the witness on cross-examination answered that he had been promised money for testifying in the case, held that an objection to a further question whether he had been offered a certain sum or more for testifying in case defendant was convicted was properly sustained for the reason he had not testified to anything in the case.

9. Criminal law, § 553 —when remarhs of counsel prejudicial. Where a defendant charged with an offense did not testify in his own behalf, conduct of counsel for the People in making a remark to the jury in his argument that defendant “has a right to prove his innocence if he wants to,” held unprofessional and prejudicial, as being an indirect reference to the fact that defendant had the right to testify in his own defense.

10. Intoxicating liquors, § 158*—when instruction in words of statute not error. The giving of an instruction in the words of that part of section 17 of the Local Option Act, J. & A. f 4653, which prescribes the effect of the insurance of an internal revenue special tax stamps, held not error.

11. Intoxicating liquors, § 158*—right to instruct as to meaning of prima facie evidence. In a prosecution for the sale of intoxicating liquor in antisaloon territory, the giving of an instruction which simply told the jury of the meaning and effect of the phrase “prima facie evidence” mentioned in section 17 of the Local Option Act, J. & A. j[ 4653, held not error.

12. Instructions, g 101*—when erroneous as argumentative and as directing attention to testimony of particular witnesses. In a prosecution for the sale of intoxicating liquor in antisaloon territory, instructions referring to detectives who testified in the case and telling the jury that they should not “be prejudiced to the extent of disbelieving such witnesses simply on account of such facts,” held erroneous for the reason they are argumentative and direct the attention of the jury to the testimony of particular witnesses.

13. Instructions, § 101*—when improper as referring to the credibility of particular witnesses. In a prosecution for the sale of intoxicating liquor in antisaloon territory, an instruction referring to the testimony of detectives held vicious in telling the jury that the evidence of private detectives should be received with care and caution.

14. Criminal law, § 287 —when requested instruction as to jury being judges of the law and evidence improperly refused. The refusal of a requested instruction: "The jury in a criminal case are, by the statute of Illinois, made judges of the law and evidence; and under these statutes it is the duty of the jury, after hearing the arguments of counsel and the instructions of the court, to act upon the law and facts according to their best judgment of such law and such facts,” held error.


author: Mr. Presiding J' lompson

text:
    E. L. Scott and W. F. Gaumer, Appellants, v. J. Ogden O’Hair, Appellee.
    (Not to Ibe reported in full.)
    ATbstrr , Decision.
    1. Brokers, § 92

      —wh. of the evidence. In an act' an exchange of land for o of plaintiffs held not so i the evidence, where there tiffs were acting in the ; of verdict not against weight over commissions for negotiating , the amount of a verdict in favor ite as to he against the weight of 'dence tending to show that plain-of other parties and not for the defendant, so that they would not he entitled to commissions, and the jury might have awarded the amount of the verdict on evidence of a promise made by defendant to pay plaintiffs something for the expenses incurred.

      Appeal from the Circuit Court of Edgar county; the Hon. William B. Scholfield, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 5, 1914.
    Statement of the Case.
    Action in assumpsit by E. L. Scott and W. F. Graumer against J. Ogden O’Hair to recover commissions for services claimed to have been performed by plaintiffs for defendant as real estate agents. The declaration consisted of the common counts, with which plaintiffs filed a bill of particulars: “To commissions in assisting in the exchange of lands of defendant in Edgar county, Illinois, for the lands in the State of Arkansas, and cash $2,500.” The jury returned a verdict in favor of plaintiffs for $50, and judgment was entered on the verdict. Plaintiffs not being satisfied with the amount of the verdict, appeal.
    W. H. Clinton an : vopp, for appellants.
    H. S. Tanner and lee. W. Kincaid, for appel-

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

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

   Mr. Presiding J' lompson

delivered the opinion of the cour

2. Bbokbbs, § 95*—when instruction supported hy the evidence. In an action to recover commissions for procuring an exchange of defendant’s Illinois land for Arkansas land, instructions given for defendant to the effect that if the jury believed plaintiffs were acting as the agents of Arkansas parties in procuring the exchange without disclosing that fact to defendant, the plaintiffs were not entitled to recover, held not erroneous for the reason there was no evidence in the record on which to base them, where the preponderance of the evidence tended to show that plaintiffs were endeavoring to sell Arkansas land to defendant and the trade of defendant’s land was only an incident to the sale of the Arkansas land.

3. New tbial, § 58 —when inadequacy of damages not ground for. A new trial for inadequacy of damages will not be allowed on the motion of the prevailing party when, in the judgment of the court, the verdict should have been against him.

Scholeield, J., took no part in the decision of this case.


text:
    John Price, Appellee, v. The Clover Leaf Coal Mining Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Montgomery county; the Hon. James C. McBbide, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 5, 1914.
    Rehearing denied June 25, 1914.
    Statement of the Case.
    Action by John Price against The Clover Leaf Coal Mining Company to recover for personal injuries sustained by plaintiff while working as a coal miner in defendant’s mine. From a judgment in favor of plaintiff for one thousand five hundred dollars, defendant appeals.
    The declaration contains three counts. The first count avers the enactment of the Compensation Act approved June 10, 1911, J. & A. j['¡[ 5449 et seq., that the defendant had elected not to provide and pay compensation according to the provisions of said act, and that defendant thereby was deprived of the common-law defense of assumed risk, fellow-servant and contributory negligence, except that contributory negligence of an employee shall be considered in reduction of damages; that the plaintiff had elected to accept the provisions of said act which entitled him to recover for the injuries sustained; that while the plaintiff was engaged as a miner in a certain cross-cut between certain rooms, a large piece of slate, which had been hanging in the roof for, towit, a week, the condition of which was or by the exercise of ordinary care would have been known to defendant, without warning, fell upon and injured plaintiff, etc.
    The second count contains the further averment that it was the duty of defendant to use reasonable care to furnish the plaintiff a safe place to work, but that disregarding its duty it negligently caused plaintiff to work in said cross-cut, which was not a reasonably safe place, as there was a large, loose and dangerous rock hanging over where plaintiff passed and was employed, the condition of which, by the exercise of due care, was or could have been known to defendant.
    The third count avers that defendant was operating a coal mine and in said coal mine was a certain crosscut where plaintiff was required to pass and work. It pleads the provisions of section 21, of the Miners’ Act of 1911, J. & A. 7495, concerning mine examiners and avers that in said cross-cut where plaintiff was required to work was a dangerous roof and that the mine examiner wilfully failed to place a conspicuous mark thereat, and failed to take up plaintiff’s entrance check, and permitted plaintiff to enter the mine and to work during regular working hours under said dangerous roof, and while plaintiff was so employed said dangerous rock fell on him, etc. A demurrer which is general and special was overruled, after which defendant filed a plea of not guilty.
    Abstract of the Decision.
    1. Appeal and error, § 1682

      —when pleading over waives error in ruling on demurrer. Where a party to an action desires to have an order of court overruling a demurrer reviewed in a higher court he must abide by the demurrer; by pleading over the demurrer is waived.
    2. Appeal and error, § 1718*—when appeal to Appellate Court waives constitutional questions. A party taking an appeal to the Appellate Court upon, assignments of error, which include a ruling on a constitutional question, waives the constitutional question.

      The defendant moved for a rule on plaintiff to elect on which count he would rely for a recovery and this motion was overruled. At the close of the evidence plaintiff requested the court to give instructions directing the jury to find the defendant not guilty on each count. These were refused.
    The demurrer for special causes states with other reasons that the Compensation Act is unconstitutional and invalid, and that it is not averred that the plaintiff gave notice that he had elected to accept the provisions of the Compensation Act.
    The defendant has assigned for error and contends that the court erred (1) in overruling the demurrer; (2) in refusing to require plaintiff to elect on which counts he would ask a recovery; (3) in refusing to direct a verdict of not guilty; (4) that the judgment is contrary to the evidence and excessive; and (5) in the giving of certain instructions.
    Miller & McDavid, for appellant; D. B. Kinder, of counsel.
    Hill & Burlington, for appellee.

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

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

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

   Mr. Presiding Justice Thompson

delivered the opinion of the court.

3. Appeal and error, § 800*—when ruling on motion to require electioñ of count in declaration not saved for review. A ruling of the court on a motion to require plaintiff to elect on which count of the declaration he would ask recovery is not saved for review where neither the motion, the ruling of the court nor any exception thereto are preserved in the bill of exceptions.

4. Appeal and error, § 565*—necessity of exceptions to save ruling on motions made preliminary to trial. Section 81 of the Practice Act, J. & A. If 8618, providing that a formal exception is not necessary to save for review rulings on questions during the progress of the trial, has no application to motions made preliminary to the trial, such as motions for a continuance or motions to require plaintiff to elect on which count in the declaration he will ask recovery.

5. Appeal and error, § 800*—when rulings on motion must be preserved by bill of exceptions. Rulings on motions preliminary to a trial, which are not a part of a common-law record, must be preserved by a bill of exceptions.

6. Pleadings, § 58*—when plaintiff not required to elect between counts. Denial of a motion to require plaintiff to elect on which count in the declaration he will ask recovery, held not error where all the counts are based on the same state of facts.

7. Action, § 41*—when not a misjoiner of causes of action. There is no misjoinder of causes of action in several counts of the declaration where all the counts are based on the same state of facts.

8. Action, § 44*—when plaintiff not required to bring separate actions. Where a defendant is liable to plaintiff for personal injuries in an action at law either under section 21 of the Miners’ Act, J. & A. If 7495, or in an action at law as modified by other provisions of the statute, the plaintiff should not be required to bring separate actions based on the same facts.

9. Workmen’s Compensation Act, § 5*—when count in declarar tion ,based on Workmen’s Compensation Act defective. A count in a declaration to recover for personal injuries which pleads the Compensation Act of 1911, J. & A. fjf 5449 et seq., and avers simply that plaintiff was injured in the course of his employment without averring the failure to perform any duty which defendant owed to plaintiff, or any negligence or carelessness on the part of the defendant, held not to be a good count where the defendant had elected not to come under the act.

10. Workmen’s Compensation Act, § 2 —Workmen’s Compensar tion Act construed. Sections 3 and 10 of the Workmen’s Compensation Act of 1911, J. & A. 5451, 5459, apply only to cases where both parties have accepted the provisions of the act.

11. Workmen’s Compensation Act, § 2*—right of employee to recover under Workmen’s Compensation Act where employer refused to accept provisions of act. Where an employer has refused to accept the provisions of the Workmen’s Compensation Act of 1911, he thereby waives his defenses of assumed risk, fellow-servant and contributory negligence, and an employee who has not refused to accept its provisions may maintain an action against his employer for injuries received by him freed from said defense, if it is averred that the injuries were caused by the negligence of the employer and the evidence sustains the declaration subject only to the provision that contributory negligence shall be considered in reducing the amount of damages.

12. Mines and minerals, § 182*—when question relating to examination of mine is for jury. In an action to recover for injuries sustained by a miner from the fall of a stone from the roof of the mine, where it was alleged that the mine examiner failed to mark the dangerous condition of the roof, held, under the evidence it was a question for the jury whether the examination was of the kind contemplated by statute and whether' the roof at that time was safe or was in fact dangerous.

13. Mines and minerals, § 187*—when instruction based on counts in declaration erroneous. In an action to recover for personal injuries received by plaintiff in defendant’s mine, an instruction telling the jury that if they find that the evidence bearing on plaintiff’s case, as alleged in his declaration or in either count thereof, preponderates in his favor although but slightly it will be sufficient to warrant a finding for plaintiff, held erroneous where one of the counts was defective in failing to aver any negligence.

14. Workmen’s Compensation Act, § 2*—when instruction stating language of Compensation Act misleading. An instruction stating the provisions of section 1 of the Workmen’s Compensation Act, J. & A. 1f 5449, held misleading in so far as it states that part of the section preceding the portion which states the penalties imposed for refusal of employer to accept the provisions of the act.

15. Mines and minerals, § 189 —when instruction in language of Miners’ Act not misleading. The giving of an instruction in the language of paragraph “b” of section 21 of the Miners’ Act, J. & A. ^ 7495, held not misleading though parts of it had no application to the case.