text:
    James Savio et al., Appellees, v. Anton Vieno et al., Appellants.
    Gen. No. 6,268.
    1. Injunction, § 256

      —when decree from which no appeal is taken may not be questioned in subsequent contempt proceedings. A decree from which no appeal was taken by the parties against whom it was rendered cannot be questioned by them, as to the things determined thereby, on their appeal from a sentence for contempt for their violation of an injunction order entered in the suit.
    2. Fraternal and mutual benefit societies, § 55

      —what does not constitute justification for violation of injunction restraining officers of seceding body from disposing of funds of society. Where certain officers of a seceding body of a fraternal beneficiary society were enjoined from disposing of any funds of the society in their hands, held that the fact that one of such officers merely signed the vouchers upon which such funds were paid out, or that such funds were paid out by the vote and direction of the seeeders, or that the name of the body had been changed and they were no longer affiliated with the society, would not justify the violation of such injunction by any of such officers.
    3. Appeal and error, § 1266

      —when existence of convening order of court presumed. Where the record on appeal from a sentence for contempt for violation of an injunction order showed in evidence a decree enrolled in the suit in which such order was entered on a certain day signed by the presiding judge but failed to show a convening order for that day, to which evidence no objection was made because of such failure, held that it must be presumed in support of such record that there was a convening order which would have been introduced had objection been made.
    4. Judgment, § 360

      -—when decree imports verity and may not be contradicted by parol. WHtiere a record of court proceedings offered in evidence showing the entry on a certain day of a certain decree by a certain judge was preceded by a proper convening order showing such judge present, held that such record would import verity and could not be contradicted by parol.
    5. Injunction, § 256

      —what is not defense in contempt proceedings for violating. The fact that no decree may have been rendered in a suit would not relieve parties who had violated an injunction against them in such suit from a sentence for contempt for such violation.
    6. Injunction, § 245

      —what is binding force of. An injunction issued by a court having jurisdiction must be obeyed until it is modified or dissolved.
    7. Clerks oe courts, § 3

      —when may enter on own motion omitted part of record of 'proceedings. • A clerk of court may enter any omitted part, as a convening order on a particular day, of a record of proceedings in court of his own motion whenever he discovers such omission during the term or before the first day' of the next term, and an order of court to make such correction is not necessary.
    8. Appeal and error, § 1273

      —what presumptions arise as to existence of daily convening orders by city courts. A court organized under the statute as to city courts has both chancery, common law and criminal jurisdiction, and it will be presumed, from its common-law and criminal character, that it had at a certain term both a common-law and' a criminal record and a convening order for every day it was in session, and it will not be presumed there was no convening order also in its chancery record.
    9. Judgment, § 2

      —when defect of record as to time of convening of court does not invalidate. In many respects a term of court is regarded in the law as a day, and the fact the record showed the court convened at 10:30 p. m. instead of at 10:30 a. m., when it actually convened and acted, would not invalidate a judgment entered on that day.
    10. Injunction, § 262

      —when amendments to injunctional order without leave of court do not worlc dissolution of injunction. Amendments to an injunction order which only enlarged and strengthened the allegations of the bill would not affect the force of the injunction or work its dissolution, even though leave of court was not obtained to amend without prejudice to the injunction, and even though the injunction could have been dissolved on motion because such amendments had been made without such leave.
    11. Aepeai, and error, § 41

      —when Appellate Court has jurisdiction of appeal in contempt proceedings. An appeal in contempt proceedings arising in a city court is properly taken to the Appellate Court.
    12. Contempt, § 70

      —when order sentencing for is erroneous. An order sentencing a party found guilty of contempt “from the date hereof” regardless of delay caused by appeal from such order is erroneous in so restricting the sentence, and the words will be stricken out on such appeal.
    Appeal from the City Court of Spring Valley; the Hon. Harry W. McEwen, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed November 9, 1916.
    Modified and refilled December 6, 1916.
    J. L. Spaulding and J. L. Murphy, for appellants.
    Gilbert F. Wagner, for appellees.

      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. Justice Dibell

delivered the opinion of the court.

Anton Vieno, Joseph Corna, Dominick Bobbio, Joseph Compasso and John Salvetti, defendants in a chancery canse in the City Court of the City of Spring Valley, and John L. Murphy, their solicitor in said cause, were adjudged guilty of contempt of court in violating an injunction in said cause. This is an appealby them from the sentence imposed upon them for said contempt.

On the merits the case is clear. On November 29, A. D. 1913, Bobert J. Blum, James Savio and Andrew Savio filed a bill of complaint in said City Court against said five defendants above named, and Court Bose No. 12 of the Foresters of America of Spring •Valley, Illinois. The bill alleged that the Foresters of America is a fraternal beneficiary society, composed of a supreme court, and grand and subordinate courts, and that said Court Bose No. 12 was a subordinate court thereof located in said City of Spring Valley; that Anton Vieno was then treasurer of said Court Bose No. 12; that said Joseph Corna was then financial secretary of, said society; that Joseph Compasso, Dominick Bobbio and John Salvetti were then trustees of the said society, and were then and had been acting in their official capacities. The bill charged that on November 24, 1913, a meeting of said Court Bose No. 12 of Spring Valley, Illinois, was held, at which the majority then present undertook to secede from the order of the Foresters of America; that the complainants are members of said society, and received no notice of said meeting (which was a special meeting), and that the notice given of said meeting did not comply with' the constitution and rules of the order, and that the acts and proceedings of said meeting of November 24,1913, were in violation of the constitution of the order, and that said meeting was not properly called, but was fraudulently called and held; that there then was in the hands of the defendants a large sum of money collected from the members of said Court Bose No. 12, and belonging to said Court Bose No. 12; and that it also owned certain real estate in Spring Valley, which is described; and that the officers named as defendants threaten to dispose of the funds and-property of said Court Bose No. 12-to the irreparable injury of the complainants and will do so unless restrained by injunction. The bill made defendants the said five officers and said Court Bose No. 12 and asked that they be restrained from selling, assigning, incumbering or otherwise disposing of the moneys, funds and property, real and personal, of said Court Bose No. 12 until the further order of the court; and that the acts of said society at said meeting on November 24,1913, be declared illegal, void, and of no force or effect; and also prayed for further relief. The bill was verified by said three complainants. On said day the judge of the City Court of Spring Valley entered an order for an injunction pursuant to the prayer of the bill, and on the said 29th day of November, 1913, an injunction was duly issued, which commanded the defendants and their attorneys, solicitors, agents and servants to absolutely desist and refrain from selling, assigning, incumbering or otherwise disposing of the moneys, funds and property, real and personal, of Court Bose No. 12 of the Foresters of America of Spring Valley, Illinois, until the court otherwise ordered. This injunction was duly returned served on the 1st day of December, A. D. 1913, upon each of the defendants therein named. At some subsequent date Blum died, and his death was suggested, and his name ceased to appear in the cause. The summons in that cause was returnable to the May term, 1914. Thereafter the seceding body changed its name and Court Bose No. 12 elected other officers, and thereafter Court Bose No. 12 was changed from a defendant to a complainant, and on June 22, 1914, the complainants by leave of court filed an amended and supplemental bill against the said five defendants and the Grand Court, Foresters of America of the State of Illinois. In this amended bill the laws of the order were set out in detail, and it was therefrom shown in detail that said meeting of November 24, 1913, was not held in compliance with the laws of the order. It was also shown that, by the laws of the order, if a subordinate lodge such as Court Rose No. 12 undertook to secede from the order and there were left fifteen members who did not secede, including one who was competent to preside, then such remaining members should continue to constitute the society, and should be entitled to all of its property; and that if less than that number did not secede, the property of the society should belong to the Grand Court of the order. The amended bill charged that there were nearly sixty members who did not join in the secession, and among them were numerous persons competent to preside, and" it was charged that therefore the funds of this Court Rose No. 12 belonged to that part of the society which did not secede. There were several slight amendments to the amended and supplemental bill, and an additional verification thereto. Defendants made a motion to dissolve the injunction, and that was denied, and they then answered and made another, motion to dissolve the injunction, which was denied, and from each of these orders the defendants appealed to this court, and we heard the two appeals together, and affirmed the orders in Savio v. Vieno, 193 Ill. App. 395. The proofs were taken and reported by a master, and there was a hearing and the cause was taken under advisement, and there was a decree on March 20, 1915, in favor of the complainants. This decree, so far as appears, has never been appealed from nor questioned by a writ of error. It is very full in its findings of fact, and decides every issue against the defendants. Appellants7 in their argument here give an alleged history of the various matters pertaining to Court Rose No. 12, and the secession therefrom or its change of name, but this narrative is not supported by this record; and the decree which is binding upon the defendants at the present time presents a very different history of the transactions involved, and appellants are not at liberty here and now to dispute the things determined by that decree. Appellants here seek to find imperfections in the decree and some slight variance from the pleadings, and to claim that it is not sufficiently supported by the evidence. We are of opinion that in this contempt proceedings the defendants and their solicitor cannot question the sufficiency of that decree. The court unquestionably had jurisdiction at the suit of the minority members of the society to restrain the transfer of its moneys to another society formed by an act of secession, and to determine to whom those funds rightfully belonged. That decree is final until it shall be modified or reversed on appeal or writ of error. The defendants cannot in this proceeding again try the issues settled by that decree.

The facts turn out to be that when said injunction was served upon said defendants on December 1, 1913, there was in the hands of said five defendants $2,329.52 belonging to the local society, and arising from dues, etc., paid in by the members. This money was in their possession and under their control when the injunction was served. During December, 1913, Murphy was hired by the seceders to procure a change of name for the body formed of the seceders. In January, 1914, the defendants presented to him a copy of the injunction which had been served upon them. At that time he became fully aware of the language of the injunction, and he became solicitor in the chancery cause for said five defendants, and he thereafter was bound by that injunction as fully as they were. On May 28, 1914, the five defendants paid Murphy, and he received from them, $100 of these funds. On July 28, 1914, the five defendants paid Murphy, and he received from them, $1,600 of these funds. He took these sums to apply in payment for his professional services rendered and to be rendered in said chancery cause and other matters;. Abqut that time the five defendants paid out $500 more of this money on hills owing by the seceders, and the rest of this fund they afterwards paid out. Before these moneys were paid out by the defendants or received by Murphy, a discussion was had on the question whether this would be a violation of the injunction, so that they acted with the injunction in. mind. Murphy spoke very slightingly to them of the injunction and they paid out the money. They thereby disposed of the entire fund in litigation, which the decree found belonged to the society composed of those who did not secede from the Foresters of America. It would be difficult to conceive of a more flagrant and intentional violation of an injunction, and the rights of the complainants are practically destroyed, so far as here appears, unless the order adjudging the defendants guilty of contempt produces the results which were intended. By the judgment in the contempt proceedings the five defendants were sentenced to imprisonment in the county jail for six months, but it was provided that they could at any time relieve themselves of that imprisonment by paying direct to the clerk of the court the sum of $2,329.52, which they so wrongfully expended. The same judgment sentenced Murphy to imprisonment in the county jail for one month, but with the proviso that he could, relieve himself from imprisonment by paying to the clerk of the court the sum of $1,700 so wrongfully received by him. It is said that the five defendants are poor and unable to raise that sum of money, but it is fairly evident that if Murphy turns back the $1,700 which he received, the other defendants will then be able to comply with the rest of the order, and the funds so wrongfully withdrawn will be- placed in the hands of the clerk of the court. The clerk of the court will hold these funds subject to the decree which has been entered, and subject to the control of the court, and the sole purpose of the order is to have the money restored to a place where it can be applied as the decree finds that it should be. We see no injustice in this. It is insisted that Corna ought not to have been convicted of contempt because he did not actually pay out the money. He signed the vouchers upon which it "was all expended. The defendants seek to justify themselves by the vote and direction of the seceders, who, before this time, had changed their name, and were no longer affiliated with the order of Foresters of America. We are of opinion that this does not excuse them.

Before the trial of the original cause, a change of venue was taken from Judge Hawthorne of the City Court of Spring Valley, and Judge Sheldon, of the City Court of Sterling, tried the case. In this contempt proceeding, complainants offered in evidence certain pages of the chancery record of the said City Court, including the enrolled decree of March 20, 1915, and the respondents made no objection thereto. It does not appear in the record before us that said chancery record contains a convening order for that day, and this is the only defect in said decree as introduced by the pétitioners; and it is signed by “Carl E. Sheldon, presiding judge.” As no objection was made to its introduction because a placita or convening order was not put in evidence, we must presume in support of the record that there was such a convening order, which would have been introduced if objection .had been made because it was not offered. In their defense the respondents introduced the original draft of this decree, which bore the file mark of March 20,1915, and sought to prove that, in fact, it did not reach the clerk until nearly a month later, and that Judge Sheldon was not present on March 20, 1915, presiding in the City Court of the City of Spring Valley, but that this decree was sent by him from some other place with the statement that Judge Hawthorne could cause it to be entered. It is therefore claimed that there was no decree entered on March 20, 1915, and that the decree is a nullity. We are of opinion thqf if the record offered in evidence of the proceedings of that day was preceded by a proper convening order showing Judge Sheldon present, that record imported verity, and could not be contradicted by parol. Some other suggestions hereinafter made concerning court records are also applicable; but if there is no such decree as this it does not relieve the respondents of the charge of contempt of court. Appellants argue here, that if this decree is of no effect, then the cause ended when it was heard by Judge Sheldon and was taken under advisement, or ended at the date of such ineffective decree. We cannot assent to this conclusion. If Judge Sheldon has not yet entered a decree in said cause, then he still has the case under advisement, but the contempt of court was actually committed nearly a year before that time. The funds were dissipated in May to July, 1914, and the defendants are equally guilty of contempt and equally subject to punishment if the case has never yet reached a final decree. True, if there is in fact no decree, the alleged decree cannot be used to prove complainants’ contentions as to the rights of the parties, but whether respondents are guilty of contempt does not depend upon the final result of the litigation. As the court had jurisdiction, respondents were not at liberty to disregard the injunction even if they thought it had been improvidently granted,-or that it would be modified or dissolved on the final hearing. An injunction issued by a court having jurisdiction must be obeyed until it is modified or dissolved. People v. McWeeney, 259 Ill. 161; Flannery v. People, 225 Ill. 62; Christian Hospital v. People, 223 Ill. 244; Franklin Union No. 4. v. People, 220 Ill. 355; Clark v. Burke, 163 Ill. 334. If there is no final decree, the funds which may be paid by respondents under the order appealed from will remain in the hands of the court subject to such final decree as shall be entered.

1 Tn the contempt proceedings the court, on September 15, 1915, found the respondents guilty, and gave them until September 29, 1915, to purge themselves of such contempt if they should see fit; and on September 29th the final order was entered, sentencing the defendants to imprisonment in the county jail unless they should relieve themselves thereof by paying to the clerk of the court the moneys so wrongfully paid out. This all purports to be of the May term, 1915. It is the contention of the appellants that the City Court was never legally in session in said May term after the first day, and therefore was not in session when this judgment was entered. The May term, 1915, began on May 3rd, and the proceedings of that day in the chancery docket were preceded by a proper convening order showing Judge Hawthorne present. At the end of the proceedings in the chancery docket of that day was an order that the court now adjourn until May 5th, at 10:30 p. m. The chancery record of May 5th, shows chancery business transacted, and was not preceded at that time by a convening order showing a judge present, and the court then adjourned to another day. There were in this chancery record various adjournments at different times during said term, some'of which showed a proper convening order on the day that the adjournment was made, and the others did not. Later in the term the question of the existence of the court was raised before Judge McEwen of the City Court of DeKalb, who presided at the hearing of this entire contempt proceeding, and he entered an order directing placitas to be supplied at the dates of sessions of court where they did not then appear in the record of that term, and they were so supplied, and the record as now before us contains the proper placitas. It was also proved before bim that, in fact, the adjournment before mentioned was not to 10:30 p. m. but to 10:30 a. m., and that there was another order which incorrectly stated the hour to which an adjournment was taken, and the court directed those orders to be amended. The theory of appellants is that there never was any court in session at the May term after the first day, and that the court expired because it was not legally convened on May 5th, and that the subsequent proceedings to amend were had when there was no court in session, and therefore the amendments could not be made. At common law it was the duty of the clerk to write up the proceedings of each day by the following morning, so that the judge could t then sign the record. Governor v. Dodd, 81 Ill. 162. By sections 14 and 15 of chapter 25 of the Revised Statutes (J. & A. 2139-2140), pertaining to clerks of courts, first adopted in 1859, the time within which clerks of courts could perform this duty was very much enlarged. It is there provided that it shall be the duty of clerks of courts to enter of record all judgments, decrees and orders of their respective courts before the final adjournment of the respective terms thereof, or as soon thereafter as practicable, and a penalty is there provided if any clerk should so fail to enter of record any order, judgment or decree of his court by the next succeeding regular term after the same is rendered. In construing this, statute it was held, in McNamara v. People, 183 Ill. 164, that the clerk of a court is not bound to enter the orders or judgments on the day they may be made; but he should do so during the term unless for some good cause they cannot be so made. So, in People v. Petit, 266 Ill. 628, it was held that a judgment can ordinarily be proved only by the record, but that the judgment exists from the time the court acts, even though the entry of the judgment may not have been formally written by the clerk; that the statute contemplates that the judgments, decrees and orders of the court cannot be immediately entered of record, and directs the clerk to enter them by the final adjournment of the term or as soon thereafter as practicable; that the Supreme Court will take judicial notice that the record of the proceedings of a court is frequently not written up during the term; that the judgment of a court does not cease to be a judgment because the clerk failed to enter it of record, and if the clerk should become liable to a penalty for neglect of his duty, still the judgment of the court would not lose its binding effect, and it would still be the duty of the clerk to enter it of record; and that until the expiration of the term a judgment was still under the control of the court. We are of opinion that these principles should apply as well to a convening order as to the body of the judgment or decree. It is also a matter of common practice in chancery cases that when the judge directs a decree in favor of a particular party, a memorandum thereof is usually made upon a minute book' kept by the judge or clerk, and that the successful attorney thereafter takes some considerable time in which to prepare the decree in such manner as to meet the views expressed by the court, and that it, in fact, does not usually reach the clerk for enrollment in the record until some later day. If that should chance to be the only decree on that particular day, it might very often happen that there would not be, in the chancery docket, any convening order until the enrollment of that decree. Therefore the clerk was not obliged to enter of record this decree or any part thereof prior to the time these amendments were made. We cannot doubt that if he could enter the whole of a decree during any day of the term, he could enter any omitted part of his own motion whenever he discovered such omission during the term, or before the first day of the next term; and that when he discovered that on some particular day in which proceedings were entered in his chancery record he had failed to place a convening order before the proceediiigs of that day in the chancery record, he had power, of his own motion, during that term, or before' the first day of the next succeeding term, to enter such convening order; and that therefore the direction by the court to him to supply these convening orders was unnecessary. Moreover, the City Court of Spring Valley, organized under the general act relating to city courts, is not merely a chancery court, but is also a court of common-law and criminal jurisdiction. We have a right to presume that at the May term, 1915, it had a- common-law record and a criminal record; and these different records of the court being usually kept in different books, we have a right to presume, in support of the jurisdiction of the court, and in the absence of evidence, that there was either in the common-law record or the criminal record a proper convening order for every day the court was in session; and we will not assume, because the clerk on May 5th, or at any other day of the term, did not write a convening order in the chancery record, that therefore there was no convening order in the other record, and therefore there was no court. It is instructive that in the appeal bond executed by all the respondents, and by which this matter is brought to this court, it is recited that the said complainants “did, on the 29th day of September, A. D. 1915, at a term of the City Court of the City of Spring Valley in said county, then and there being holden within and for said city, obtain and recover” the judgment here sought to be reversed.

Appellants appear to contend that because court adjourned to 10:30 p. m. on a certain day, when, in fact it met at an earlier hour, therefore the court lost jurisdiction. In many respects a term of court is regarded in the law as one day. Shoemate v. Lockridge, 53 Ill. 503; Chiniquy v. People, 78 Ill. 570; Brown v. Leet, 136 Ill. 203. In Richardson v. Beldam, 18 Ill. App. 527, in an opinion by McAllister, J., in a cage where a court on Saturday adjourned to the following Monday at ten o’clock a. m. and on Monday opened court before that hour and entered a judgment, it was held that reason, justice and the law all combine in requiring the court to hold that such a judgment should not be regarded as void or so irregular as to be set aside for that reason only. However, if a party to a suit were taken by surprise by the convening of the court at an earlier hour than that to which it had adjourned, he might have a right to relief. The court there said: “To hold that the powers of the court were absolutely suspended until the precise time to which it adjourned, would be the recognition of a doctrine fraught with inconvenience and dangerous consequences. In addition to a standard city and a standard railroad time, it would be necessary to have a standard court time, because the other two vary from each other. If the principle be recognized, five minutes too soon would be as fatal as forty or sixty minutes too soon. This case illustrates the wisdom of the old common-law rule, that the term of a court, as fixed by law, though running through weeks and even months, is to be regarded as one day, and that the law takes no recognizance of parts of a day.” Moreover, although the court convened at 10:30 a. m. on the particular day here in question instead of at 10:30 p. m., there, is no proof but that it may have been continued in session until 10:30 p. m. or later, and the action in this case may have been taken after that hour for all that this record discloses.

Appellants’ brief contains a quotation from Binney’s case, 2 Bland 99, which suggests that under certain circumstances therein stated, the making of an amendment to an injunction bill destroys the injunction previously granted thereunder, unless an order of court is obtained that the amendment be without prejudice to the injunction. It is said in 22 Cyc. 981, that such an amendment may render a temporary injunetion ineffective, but the notes there show that in numerous English cases it is held that the dissolution does not follow as a matter of course on the making of the amendment. We discussed this question in Savio v. Vieno, supra, aiid held that amendments which only enlarge and strengthen the allegation of the bill do not affect the force of the injunction. In Selden v. Vermilya, 4 Sandf. Ch. (N. Y.) 573, it was held that in New York, “an injunction does not drop on amending the bill, although the order granting leave may1 be silent on that subject.” Based upon this and other authorities, 2 High on Injunctions (4th Ed.), sec. 1594, states the following as the law on this subject: “The prevailing doctrine now is that whenever, pending an injunction, an amendment is allowed to the bill, it is without prejudice to the injunction, which still stands, although the order granting leave to amend is silent as to its effect upon the injunction.” In the present case, the bill was evidently hastily prepared, and its allegations were general, and the amended and supplemental bill and the subsequent amendments were for the purpose of setting out the laws of the order in detail, and showing in detail wherein the action of the meeting of November 24, 1913, was unlawful under the laws of the order, and not binding upon the complainants and the members who did not secede from the Foresters of America. Additional verification of the bill was made, but, in the former case before us, we held that the original verification was not defective, but was suEcient. We are of opinion that amendments which do not change the character of the case, but only enlarge the allegations of the bill and support the case already made, do not work a dissolution of .the injunction, even though leave of court was not obtained to make the amendment without prejudice to the injunction, and that even if defendants could have had the injunction dissolved because of the amendments made without an order that they be without prejudice to the injunction (a defect which the complainants could then have cured), the defendants should have moved to dissolve the injunction instead of violating it.

Appellants suggest doubt whether they have appealed to the right court, and cite cases where the Supreme Court has taken jurisdiction of contempt proceedings appealed from the trial court to that court. In most of the cases above cited by us as to the duty to obey an injunction, the appeals were to the Appellate Court and thence to the Supreme Court without question. There were like appeals in People v. Diedrich, 141 Ill. 565, and Leopold v. People, 140 Ill. 552, and in many other cases. Schmidt v. Cooper, 274 Ill. 243, is a recent contempt case which passed through the Appellate Court to the Supreme Court without question. The proceeding is civil or remedial and is between the parties to the litigation. We conclude we have jurisdiction to decide the cause.

Several other minor points discussed by appellants have received our consideration and are overruled by us, and we think it unnecessary to discuss them. Some questions involved in this record were discussed by us in Rubendall v. Tarbox, 200 Ill. App. 260.

The order appealed from in certain parts uses the words “from the date hereof,” and thereby seems to restrict the imprisonment to begin on that precise date, regardless of the delay caused by this appeal. Other parts of the order are not so restricted. To avoid future dispute as to the meaning of the order, we modify said order by striking out of it the words “from the date hereof” wherever they appear, following the course pursued in Harris v. Harris, 156 Ill. App. 336.

The judgment as so modified is affirmed at the costs of appellants.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Niehaus

license: Public Domain

text:
    Mary Adams, Defendant in Error, v. Elgin & Belvidere Electric Company, Plaintiff in Error.
    Gen. No. 6,228.
    (Not to be reported in full.)
    Error to the Circuit Court of Boone county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Action by Mary Adams, plaintiff, against Elgin & Belvidere Electric Company, defendant, to recover damages for personal injuries sustained by defendant’s car striking plaintiff’s buggy in which she was riding, causing the horse to run away, whereby plaintiff was injured. From a judgment for plaintiff for $2,000, defendant brings error.
    William Biester, for plaintiff in error.
    William L. Pierce and Alexander J. Strom, for defendant in error.

      Abstract of the Decision.
    1. Appeal and error, § 1415

      —when Appellate Court will not determine questions based on credibility of witnesses. A jury which see and hear' the Witnesses are in a better position to pass upon their credibility than a court which reviews only the record, and it is the acknowledged province of a jury and not of a reviewing court to determine questions of fact which depend on the credibility of. witnesses where there is a conflict in the evidence.
    2. Interurban railroads, § 4*—when requested instruction in action for personal injuries received at crossing is properly refused as assuming facts. An instruction that it is not the exercise of ordinary care and prudence for a person to drive with a horse directly onto a railroad crossing known to such person at the time to be dangerous without making an effort by stopping or listening or otherwise to ascertain whether a car is approaching or whether it is safe to drive on the track with a horse, held properly refused where the particular facts constituting contributory negligence upon which such instruction was based were disputed.
    3. Instructions, § 63*—when erroneous as assuming facts. It is error for a court in an instruction to assume as true a fact which is disputed.
    4. Instructions, § 120*—when properly refused as not in conformity with evidence. An instruction not based upon evidence or upon a reasonable inference from the evidence is properly refused.
    5. Interurban railroads, § 4*—what degree of care required of person not hearing warning of approaching train. A person about to drive across an interurban railroad track, especially at a city crossing, who has opportunity to hear a whistle sounded as a warning of an approaching train, but does not in fact hear it, is not chargeable with the same responsibility concerning it as if he had heard it.
    6. Instructions, § 14*—when repetitions in of statements concerning law and rights and duties of parties not error. Mere repetitions in instructions of statements concerning the law and the respective rights and duties of the parties which are not challenged as erroneous, and do not appear to have created in the minds of the jury an erroneous impression of the law or to have prejudiced a party, are not erroneous.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Anna Weiderhold et al., Appellees, v. George Mathis, Appellant. William Meyer et al., Defendants.
    Gen. No. 6,266.
    (Not to be reported in full.)
    Appeal from the City Court of Sterling; the Hon. Carl E. Sheldon, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed in part and reversed in part.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Suit by Anna Weiderhold, Edith Gerber, Christina Schumacher, Emma Kurfiss, Alfred Kurfiss, Charles Kurfiss, Matilda Speer, Harold Kurfiss, Eva Kurfiss and Zelma Kurfiss, heirs of the body of John Kurfiss, deceased, complainants, against George Mathis, as trustee, and William Meyer, Lena Meyer, Carrie Lehman, Daniel Lehman, William Vetter, Lena Vetter, Louisa Eshelman, Aaron Eshelman, Michael Vetter, Fredericka Kurfiss, and the heirs at law of Gottlieb Vetter, deceased, defendants, for accounting by the defendant George Mathis as trustee for said John Kurfiss, deceased, under the last will of Carl F. Kurfiss, deceased. From a decree that the defendant George Mathis pay into court $975, with interest, as balance due on accounting, less $50 allowed him as compensation for his services as trustee, defendant George Mathis appeals.
    By the will the defendant George Mathis was devised in trust for the testator’s son, said John Kurfiss, deceased, the son’s share in the testator’s estate, with directions to pay the interest thereon to the son annually during the son’s life and at his death to pay such share to the son’s heirs, share and share alike, and that whenever a home could be safely secured the trustee was to so invest the trust estate, provided the home could be secured “so as to be entirely without incumbranee,” in which case it was to be deeded to the son and the trust ended. The trustee received as such trustee $2,342.52. He entered into a written contract with Gottlieb Vetter for the purchase of a home for said John Kurfiss for $1,500, paying $300 cash and agreeing to pay the balance in instalments or six months after the death of said Vetter, the contract containing other provisions as to payment and a provision that the property should be deeded to said John Kurfiss or his heirs. Said John Kurfiss and his family took possession of the property and remained there up to his death. The trustee paid $1,052.25 from the trust fund on the purchase, also $450 to said John Kurfiss for repairs, remodeling and improvements on the place.
    Abstract of the Decision.
    1. Trusts, § 221

      —what are proper charges against trust estate in suit for accounting by trustee. Where the trustee of a certain fund, with power to invest same in a home for the beneficiary of such fund provided such home could be secured so as to be entirely clear of incumbrance, purchased a home in good faith on partial payments and expended money in its repair, improvement and remodeling, held that the amount agreed to be paid for the home together with the amounts paid out for repairing, improving and remodeling came within the purchasing power of the trust fund and were proper charges against it, in a suit for accounting brought against the trustee by the heirs of the beneficiaries.
    2. Trusts, § 263*—when trustee is not in default in making settlement with heirs. Where the beneficiary of a trust fund died leaving adult and several minor heirs, held that the trustee of such fund would not be in default because he did not make settlement and accounting with the heirs immediately after the death of such beneficiary, where the adult heirs could not enforce such settlement and accounting without having a guardian appointed for the minor heirs, and they failed to do so.

      Jacob Cantlin, for appellant.
    Philip H. Ward, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumniative 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 Niehaus

delivered the opinion of the court.

3. Trusts, § 226 —when accumulated interest of trust fund is properly applied in payment of debts of beneficiary to trustee. Where the beneficiary of a trust fund died leaving certain notes held by the trustee of such fund given by such beneficiary for family necessaries provided by the trustee in lieu of interest payments on the trust estate to which the beneficiary was entitled, held that the accumulated interest on said fund should be applied to the liquidation of said notes, upon a bill for accounting brought against the trustee by the heirs of the beneficiary.

4. Trusts, § 209*—when question of compensation of trustee is within discretion of court. The question of compensation for a trustee’s services, not provided for in the trust instrument, is a matter addressed to the sound discretion of the trial judge in a suit for an accounting.

5. Trusts, § 218*—when discretion of trial court is not abused in fixing compensation of trustee. Where the 'trustee was shown to have been somewhat negligent and irregular in carrying out his trust but without loss to the trust estate, held that a reviewing court would not be warranted in saying the trial court had abused its discretion in fixing such compensation at $50 instead of $150, claimed in such suit.

6. Costs, § 261*—when charged against trust estate or apportioned. Costs on a bill for accounting filed by the heirs of the beneficiary of a trust estate against the trustee, held properly chargeable against such estate, and the costs on an appeal in such suit taken by the trustee should be equally divided.


text:
    The People of the State of Illinois, Appellee, v. Henry Klehm, Appellant.
    Gen. No. 6,267.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Contempt, § 15

      —what does not constitute by witness. The refusal of a witness to appear before a notary public and give his deposition in obedience to a subpoena issued by the notary under the authority of a dedimus potestatem in a case pending in another jurisdiction could not be considered contempt of court of the tribunal administering the punishment,
    2. Contempt, § 2*—when court has no power to punish for. Only the court whose order or authority is defied has the power to punish for contempt, and its power cannot be considered as defied where the contempt arises from disobedience of a writ or mandate issued by another tribunal in a case pending in another court.
    Appeal from the Circuit Court of Rock Island county; the Hon. William T. Church, Judge, presiding. Heard in this court at the April term, 1916.

      Certiorari denied by Supreme Court (making opinion final.
    Reversed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Proceedings by the People of the State of Illinois , against Henry Klehm, defendant, for contempt in disobeying a subpoena issued by a notary public or commissioner empowered to take the deposition of witnesses in a case pending in another county. From an order finding the defendant guilty and adjudging a fine of twenty-five dollars against him and costs of suit, defendant appeals.
    Andrew Olson, for appellant.
    Culver, Andrews, King & Cook and Shallberg & Harper, for appellee.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Sangamon Loan & Trust Company, Receiver, Appellee, v. Peoples Savings Bank & Trust Company, Appellant.
    Gen. No. 6,289.
    1. Banks and banking, § 93

      —when agreement for substitution of certificate of deposit for secured notes not defense to action by receiver of insurance company. Where a certificate of deposit for a certain amount payable in current funds at a certain date was issued by a bank to an insurance company under an agreement that when due such certificate should be surrendered and certain notes secured by trust deed substituted therefor, and such certificate was deposited by the insurance company with the State Superintendent of Insurance as security under the statute, held that such agreement would not be enforceable as a defense to an action by the receiver for the insurance company against the bank on such certificate which the State Superintendent of Insurance had turned over to the receiver for the purposes of the receivership.
    2. Banks and banking, § 93*—when bank sued on certificate of deposit issued to insurance company is estopped from denying value thereof. Where a bank issuing to an insurance company a certain certificate of deposit for a certain amount, when called upon by the State Superintendent of Insurance with whom such certificate had been deposited as security under the statute for information as to the value of such certificate, replied in writing that it was worth its face value, held that the bank would be estopped from denying the value of the certificate as so stated by it, in an action to recover thereon against the bank.
    3. Insurance, § 45*—what are powers of receiver of company as to securities turned over to him by State Superintendent of Insurance. The receiver of an insurance company to whom a security held by the State Superintendent of Insurance on account of the company had. been turned over for the purposes of the receivership stands in the place of the State Superintendent and is clothed with the same powers and duties with regard to such security as such and as a trust fund.
    4. Insurance, § 45*—what is extent of powers of receiver of insolvent company. The rights and powers of the receiver of an insurance company are not limited to those possessed by the company with reference to its assets, but he represents also the creditors of the insolvent company and as such representative is invested with powers and may do acts that could not he done by a mere representative of the company.
    5. Insurance, § 45

      —what is extent of powers of receiver of insolvent company. The receiver for an insolvent corporation is the representative of the corporation with regard to the sources and extent of its title to the property and assets taken over, and cannot assert rights with reference thereto which could not have been asserted and maintained by the corporation.
    6. Banks and banking, § 93*—what constitutes estoppel of hank to deny difference in character as security of certificate of deposit of insurance company. Where a bank issued to an insurance company a certain certificate of deposit which the company deposited with the State Superintendent of Insurance as part of the security required by the statute of insurance companies, held that the bank would be estopped to deny that as a security such certificate was something different so far as its liability, value, character or efficiency as a security was concerned from what it purported on its face to be, and it would not be necessary, in order to establish such estoppel, to show any fraudulent intent in the bank in issuing such certificate.
    Appeal from the Circuit Court of Rock Island county; the Hon. William T. Church, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Dietz & Sinnett, for appellant.
    Gillespie & Fitzgerald and Searle & Marshall, 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 Niehaus

delivered the opinion of the court.

This is an action of assumpsit commenced by the appellee, Sangamon Loan & Trust Company, receiver for the Northern Life Insurance Company, against the Peoples Savings Bank & Trust Company, appellant, to recover on a certificate of deposit for $2,500 issued by the Peoples Savings Bank & Trust Company, to the Northern Life Insurance Company, and which had been deposited by the Northern Life Insurance Company as a part of the securities required by the statute to be deposited with the superintendent of insurance and which under an order of court had been turned over to the receiver by the superintendent of insurance for the purposes of the receivership.

It is claimed by appellant bank, as a defense to the suit, that the certificate in question was issued by the appellant bank, with other like certificates under a valid written agreement which it had made with the president of the Northern Life Insurance Company, acting for the company, in which it was stipulated with the Northern Life Insurance Company that when the certificate became due it would be returned to the bank, with the other certificates, and exchanged for certain promissory notes amounting to $15,000, and a mortgage securing them, and that the Northern Life Insurance Company could not, therefore, legally enforce the payment of the certificate as provided in the certificate; that the Northern Life Insurance Company was bound by its agreement, and that the receiver, who was appointed to take charge of the assets of the company, has no greater rights in the premises and with reference to this asset of the company than the company itself would have had against the appellant bank.

There was a trial by the court, which resulted in a judgment in favor of the appellee and against the appellant for $3,103.47, the amount due on the certificate, from which judgment this appeal is prosecuted. It appears from the evidence that the Northern Life Insurance Company was regularly organized in the year 1908, under the Act of the General Assembly approved March 26, 1869, and in force July 1, 1869; and that it had deposited with the superintendent of insurance the securities to the amount of its capital stock, as required by the statute, and that these securities, including the one in question, which had been accepted, and held by the superintendent of insurance in conformity with the law. That in December, 1910, Hope Thompson, president of the Northern Life Insurance Company, was desirous of negotiating a loan for the Northern Life Insurance Company with Pierre D. Southworth, the owner of a piece of property known as the “Sunset Ranch” in Lincoln County, New Mexico, and thereby dispose of some of the shares of treasury stock of the Northern Life Insurance Company and other shares of stock of the company held by a stockholders’ syndicate, of which Charles W. Lundahl, a cashier of the appellant bank, and Thompson himself, were members, and with these ends in view made an arrangement with the appellant bank, represented by its vice president, Nelson H. Greene, to finance the transaction.

In order to do so it was necessary to get $12,500 in cash to be turned over to Southworth, with the shares of the capital stock of the Northern Life Insurance Company to be transferred. It was arranged that Southworth execute a trust deed for the so-called “Sunset Ranch” in New Mexico, securing promissory notes for $25,000—and of these notes three are involved in this suit, namely, one for $5,000, and one for $6,000 and one for $4,000. Southworth executed the notes and trust deed contemplated in the arrangement on December 1.0, 1910, and they were sent by mail to and received by the appellant bank. After the appellant bank had received and had in its possession the Southworth trust deed and notes, Thompson, as president of the Northern Life Insurance Company, arranged with the appellant bank, through its vice president, in order that the necessary cash might be obtained to finance the Southworth loan, that the bank should issue to the Northern Life Insurance Company the certificate of deposit in suit for $2,500 and four other certificates of deposit of a like amount, and one for $1,000, all dated December 13, 1910, due one year after date, and that these certificates be used as securities for deposit with the superintendent of insurance, and to replace other securities of the Northern Life Insurance Company then on deposit with the superintendent, which were of a character that they could be utilized and converted into cash, of sufficient amount to realize the $12,500 needed for the South-worth loan.

At the time of the issuance of the certificate of deposit in question, and the others involved in the transaction mentioned, the appellant bank, through its vice president, exacted of the president of the Life Insurance Company an agreement in writing to return the certificates when they became due and exchange them for $15,000 of the notes secured by the Southworth trust deed, which agreement was in the form of a letter to the bank, as follows:

“Book Island, Illinois, December 13, 1910.
“Peoples Savings Bank & Trust Company,
Mr. Nelson H. Greene, Vice President,
Moline, Illinois.
Gentlemen :—
We have this day turned over to you Mortgage Notes of P. D. Southworth and wife, amounting to $15,000.00, and secured by Trust Deed on property in Lincoln County, New Mexico, for which you have issued us your Certificates of Deposit No. 4823, 4824, 4825, 4826 and 4827, aggregating a like amount. As this is a loan which we should like to have for our own investment as soon as the Territory of New Mexico is admitted as one of the States of the Union, we herewith agree that when the above mentioned Certificates fall due one year from their date, we will return them to you and take up from the proceeds thereof, the above mentioned Mortgage Notes for $15,000.00.
“Thanking you for your numerous courtesies, we are,
Tours very truly,
The Northern Lies Insurance Company of Illinois,
Hope Thompson,
(Signed) President.”

Thereafter and some months prior to the appointment of the receiver for the Northern Life Insurance Company and while the company was still transacting' its regular business of life insurance, the superintendent of insurance, in performance of his statutory duty, sent to the Peoples Savings Bank & Trust Company the following communication:

“November 27, 1911.
“Peoples Savings Bank & Trust Company,
Moline, Illinois.
Gentlemen :—
The Northern Life Insurance Company of Illinois, Bock Island, has on deposit in this Department, Certificates of Deposit issued by your bank to said company, as follows:
No. 4807, Due Nov. 29, 1911, $2500.00
No. 4823; << Dec. 13, i Í 2500.00
No. 4824, U U 13, U 2500.00
No. 4825> U ( 6 13, U 2500.00
No. 4826, i t U 13, 6 i 2500.00
No. 4828, u i 6 13, t'i 1000.00
“These certificates fall due during the next few weeks. Are they worth their face value at the present time?
“Have any payments been made to the company on any of the above certificates? Should any such payments be made in the future, kindly advise this office at once.
“These certificates are held by this Department in trust and I am desirous of ascertaining this information for the purpose of verification and comparison with my records, and will thank you for a prompt reply and a full answer to my inquiries.
Tours truly,
Insurance Superintendent. ’ ’

To which communication the appellant bank, through its vice president, made the following reply:

“Moline, Ill., December 1, 1911.
“Mr. Fred W. Potter, Insurance Superintendent,
Springfield, Illinois.
Dear Sir:—
In reply to your favor of the 27th ult., will say that our records show that we have issued to the Northern Life Insurance Company of Illinois, Certificates of Deposit; as per certificates listed in your letter.
“These certificates are worth their face value and no payments have been made on any of them.
Tours truly,
Nelson H. Greene,
Vice-President and Cashier.”

On the 20th day of December the Northern Life Insurance Company was declared insolvent, and on the application of the superintendent of insurance the appellee was appointed receiver by the Circuit Court of Sangamon county, and in conformity with an order of the court the certificate of deposit in question was turned over to the receiver by the superintendent of insurance, to be used in marshaling the assets of the company, and utilized in liquidation and adjustment of its financial affairs in accordance with the statute. After the superintendent of insurance had turned over to the receiver the certificate of deposit in question, the receiver made a demand on the appellant for payment of the same, which was refused, because of the agreement which the appellant bank had with the president of the Northern Life Insurance Company, by which the certificates in question and the other certificates were not to be paid according to their terms but were to be returned to the appellant bank and exchanged for the'Southworth notes, of like amount, and it is now contended by the appellant that the agreement was binding on the Northern Life Insurance Company and that the- receiver has no greater rights in reference to enforcing payment of the certificate in question than the insurance company would have in a suit between the company and the appellant bank.

While the general contention of appellant concerning the rights and powers of a receiver is sustained by the case of Republic Life Ins. Co. v. Swigert, 135 Ill. 150, it is clear that there is another element involved in the case at bar, which did not enter into the consideration of the case cited. It may be conceded that the general rule is as claimed by appellant, that a receiver appointed for an insolvent corporation is the representative of .the party whose estate and assets takes over, with regard to the sources and the extent of his title, and that he cannot assert rights with reference to such property as assets, which could not have been asserted and maintained by the insolvent corporation. But in this case the certificate of deposit, while an asset of the corporation, has another character and function, which the statute gives it, namely, that of a security that had been deposited and held as a trust fund for the benefit of policy holders, or the beneficiaries, of the life insurance policies issued by the Northern Life Insurance Company.

The evidence conclusively shows that the certificate of deposit in question was issued by the appellant bank to be used as one of the securities for deposit with the superintendent of insurance. By issuing it, the appellant bank represented it to the superintendent of insurance to be exactly what it purports to be upon its face. The certificate recites that a deposit had been made by the Northern Life Insurance Company in the bank, for the amount stated in the certificate, and that the amount stated in the certificate was payable by the appellant bank in current funds a year after its date. The appellant bank intended that the superintendent of insurance should accept it as a security for what it purported to be on its face, and he did so accept it, and by the well-recognized principles of estoppel the appellant is not now in position to deny that as a security it is something different so far as its liability, or the value, or character, or efficiency as a security, is concerned, from what it purports to be on its face. (New England Fire Ins. Co. v. Haynes, 71 Vt. 306; Smyth v. Munroe, 84 N. Y. 354; Lyons v. Benney, 230 Pa. 117; State Bank of Pittsburg v. Kirk, 216 Pa. 542; People’s Bank of California v. Stroud, 223 Pa. 33; Cushing v. Perot, 175 Pa. St. 66.) Nor is it necessary that it should appear that appellant bank had any fraudulent intent in issuing the certificate before the doctrine of estoppel can apply. (Milligan v. Miller, 253 Ill. 511.)

We are of opinion that the appellant bank, under the circumstances presented in this case, is estopped to deny that the certificate was not payable at the date it became due in current funds, and that the agreement made, without the knowledge of the superintendent of insurance by the appellant bank, with the president of the Northern Life Insurance Company, relied upon as a defense, cannot be used to defeat a recovery on the certificate in question, in its character as a security and trust fund, and that in this suit the receiver represents not only the insolvent corporation, but with reference to the certificate in question and the obligations growing out of its issuance and deposit as a security and trust fund, he stands in the place of the superintendent of insurance and is clothed with the same powers and duties with regard to it. That the appellant bank is also estopped to deny the statement made by it in answer to the official inquiry of the superintendent of insurance concerning the value of the certificate in suit, which is to the effect that the certificate has the value it purports to have on its face. That the rights and powers of a receiver are not limited to those possessed by the insolvent corporation, with reference to its assets, has been clearly held in Peabody v. New England Water-Works Co., 184 Ill. 625. The court in that case defines the status of a receiver as follows:

“A receiver is to be regarded as the representative not only of the corporation, having power of asserting its rights, taking its title and subject to its liabilities, but occupies a still broader position, for he represents not only the corporation but also its creditors, and under his duties as the representative of the latter class he is invested with powers and may do acts that could not be done by a. mere representative of the corporation. It is said in Gluck & Becker on Receivers (p. 177): ‘The receiver of an insolvent corporation, while, as a general rule, he is to be regarded as the representative of the corporation, asserting its rights, taking its title and subject to its liabilities, in one respect occupies a broader position, and represents not only the corporation but also the creditors, and when in any proceeding he occupies exclusively the latter status, he may do, and under some circumstances must do, many things which, if his acts were strictly limited to those of a representative of a corporation, he could not do.’ ”

For the reasons stated the court did not err in entering judgment against the appellant for the amount due on the certificate of deposit in suit, nor was there any error committed in the holding or refusing of the propositions of law submitted by the respective parties. The judgment is affirmed.

Affirmed.


text:
    Sadie Coonan, Appellee, v. James Straka et al., Appellants.
    Gen. No. 6,296.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Witnesses, § 253

      —what is province of jury in determining credibility of. The jury who see and hear the witnesses are in the best position to properly determine which of the witnesses giving conflicting testimony give the most nearly correct and truthful version of the facts.
    2. Automobiles and garages, § 3*—when evidence sufficient to show negligence of operator of automobile in violating ordinance. The evidence held to prove defendants’ servants violated a city ordinance requiring automobiles to run on the right-hand side of streets and turn around at an intersection of two streets, and that such negligence was the proximate cause of plaintiff’s injury, in an action to recover damages for such injury.

      Appeal from the Circuit Court of Will county; the Hon. Frank L. Hoover, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Action by Sadie Coonan, plaintiff, against James Strata and Josephine Strata, trading as Joliet Steam Dye House, defendants, to recover damages for personal injuries claimed to have been sustained as a result of being struct and thrown down by defendants’ automobile when she was crossing a public street in the City of Joliet. From a judgment for plaintiff for nine hundred dollars, defendants appeal.
    E. Meers, for appellants.
    Garnsey, Wood & Lennon, 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 Niehaus

delivered the opinion of the court.

3. Negligence, § 135 —what does not constitute variance between pleading and proof. Where a declaration charged plaintiff was injured on account of a specific act of negligence, and also charged that the act causing the injury was wanton and wilful, held that proof of negligence alone furnished sufficient basis for recovery without evidence also of a wanton or wilful act.

4. Negligence, § 214*—when instruction is not misleading. An instruction expressly limited to the negligence charged in the declaration cannot be considered as having misled the jury in believing it referred to anything else.

5. Instructions, § 151*—when refusal proper. Refusal of instructions which were merely repetitions of others already given held proper.

6. Instructions, § 88*—when on determination of preponderance of evidence is erroneous. An instruction referring to the number of credible “and disinterested” witnesses as a proper element for consideration in determining the preponderance of the evidence, held to be erroneous.

7. Appeal and error, § 1535*—when giving of erroneous instruction on preponderance of evidence is harmless error. Error in giving an erroneous instruction referring to the number of credible and “disinterested” witnesses as a proper element for consideration in determining the preponderance of evidence is cured by the giving of another accurate and correct instruction on the same subject.

8. Damages, § 114*—when verdict for personal injuries to woman is not excessive. Where the plaintiff in an action to recover damages for personal injuries had as a result retroversion or retro-displacement of the womb, incurable except by a major operation, held that a verdict for plaintiff for nine hundred dollars was not excessive.


text:
    R. A. Young, Appellee, v. Frank Gschwendtner, Appellant.
    Gen. No. 6,307.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Trial, § 155

      —what is province of jury. It is the province of the jury to determine the facts which are in dispute in a ease.
    2. Appeal and error, § 1411*—when Appellate Court will not set aside finding of jury. The Appellate Court will not set aside a finding of the jury based merely upon conflicting testimony.
    Appeal from the Circuit Court of Livingston county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Action Toy R. A. Young, plaintiff, against Frank Gschwendtner, defendant, to recover compensation for preparing certain plans and specifications for the construction of a dwelling house. From a judgment for plaintiff for one hundred and fifty dollars, defendant appeals.
    R. S. McIlduff and B. R. Thompson, for appellant.
    Grant C. Armstrong, for appellee.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    William P. MacCracken, Appellant, v. First National Bank of Wheaton et al., Appellees.
    Gen. No. 6,308.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Replevin, § 14

      —what is prerequisite to maintenance of action of to recover bonds deposited by third person as collateral security

      for his own debt. Where a bank had obtained possession of and was holding certain bonds legally, as collateral security for a note held by the bank, which belonged to a third person who had loaned them to the maker of the note for the purpose of being so pledged, held that replevin for such bonds by the owner thereof would not lie without a legal tender of the amount due on the note.

      Appeal from the Circuit Court of Du Page county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Action of replevin by William P. MacCracken, plaintiff, against First National Bank of Wheaton, Alexander Metzel and M. E. Taylor, defendants, to recover possession "of two bonds and of trover to recover for conversion thereof. From a judgment for defendants for costs, plaintiff appeals.
    These bonds, for $1,000 and $500 respectively, were loaned by plaintiff to one C. B. Howard for the purpose of being pledged by him as collateral security for a note of $1,200 given by Howard to the defendant bank for money borrowed, and were so pledged. Howard shortly afterwards became bankrupt. The other defendants were officers of the bank.
    Louis E. Hart, for appellant.
    John A. Russell, for appellees; Charles W. Hadley, of counsel.

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

2. Appeal and error, § 1414 —when finding of trial court will not be set aside. The finding of a trial court upon a controverted question of fact, where the evidence was conflicting, is entitled to the same consideration as the verdict of a jury would be under the same circumstances, and a court of review would not be warranted in setting aside such finding unless it is clearly against the weight of the evidence.


text:
    J. R. McDole, Appellee, v. German American National Bank of Aurora, Appellant.
    Gen. No. 6,312.
    (Not to be reported in full.)
    Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Action by J. R. McDole, plaintiff, against German American National Bank of Aurora, defendant, to recover the amount of a. deposit account in the defendant bank. From a judgment for plaintiff for $96.36 defendant appeals.
    The defendant had charged against plaintiff’s deposit account the amount of a certain check for $90 drawn in the State of Indiana upon a bank in that State and claimed to have been indorsed by plaintiff in the State of Illinois, which was thereupon cashed by the defendant but was refused payment by the Indiana bank upon which it was drawn when presented there, to which defendant added protest fees in charging same against plaintiff’s account.
    Abstract of the Decision.
    1. Bills and notes, § 7

      —what is foreign bill of exchange. A check drawn in another State upon a hank in that State and indorsed and presented for payment in the State of Illinois is a foreign hill of exchange in the latter State.
    2. Bills and notes, § 289*—what are requisites for protest for nonpayment of foreign bill of exchange. Protest for nonpayment of a foreign bill of exchange must be shown and annexed to the bill or a copy thereof and be under the hand and seal of the notary making it in order to hold an indorser on the bill.
    3. Appeal and eebor, § 1300*—-when assumed that paper was properly excluded from evidence. Where a paper excluded from the evidence by the trial court does not appear in a bill of exceptions it must be assumed it was properly excluded.
    4. Bills and notes, § 272*—tohat is not accommodation note making notice of protest unnecessary. A check indorsed for the accommodation of some one else than the indorser is not accommodation paper which would make notice of protest unnecessary.
    5. New trial, § 69*—what does not constitute newly-discovered evidence entitling to. Newly-discovered evidence which, when added to the evidence already in the record, would not show proper proof required by law is not such riewly-diseovered evidence as would entitle a party.to a new trial.
    Frank G. Plain, for appellant.
    Fred B. Shearer, for appellee.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    August C. Jahnke, Defendant in Error, v. Stanley Biolos et al., Plaintiffs in Error.
    Gen. No. 6,316.
    (Not to be reported in full.)
    Abstract of the Decision.
    Mechanics’ liens, § 196

      —when evidence insufficient to show that owners knowingly permitted contract purchaser to contract

      for repairs and improvements. Evidence held insufficient to show that the defendant owners of the building in possession of their codefendant under a contract of purchase of the premises knowingly permitted said codefendant to contract with the plaintiff for certain repairs and improvements on the building so as to authorize a lien on the premises for such repairs and improvements, in a suit to enforce a mechanic’s lien claimed because thereof.

      Error to the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed.
    Opinion filed February 10, 1917.
    Statement of the Case.
    Suit by August C. Jahnke, complainant, against Stanley Biolos, William A. Birk and Birk Brothers Brewing Company, a corporation, defendants, to enforce a mechanic’s lien claim. From a decree finding the complainant entitled to a lien for $452 and ordering a sale of the premises involved to satisfy same, defendants bring error.
    The complainant, a contractor and builder, furnished the defendant Stanley Biolos on his verbal contract certain repairs and improvements on a building in the possession of Biolos under a contract of purchase of the premises from the other defendants, who were the owners thereof.
    E. V. Orvis, for plaintiffs in error; Butz, Von Ammon & Johnston, of counsel.
    A. V. Smith, for defendant in error.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.