text:
    James V. Walsh, Defendant in Error, v. New England Casualty Company, Plaintiff in Error.
    Gen. No. 21,035.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 84

      —when evidence insufficient to prove contract of employment from month to month. In an action to recover salary based on the theory that the hiring was from month to month, entitling plaintiff to a month’s notice of intention to discharge, evidence examined and held not sufficient to prove a contract of employment from month to month.
    2. Master and servant, § 84*—when evidence insufficient to show that servant was not discharged for good cause. In an action to recover salary, evidence examined and held insufficient to show that plaintiff was not discharged for good cause.
    3. Master and servant, § 84*—when evidence sufficient to show discharge of servant on specified date. In an action for salary, where the evidence was conflicting as to whether plaintiff was discharged on July 31st or August 1, 1914, evidence examined and held to show that the discharge took place on July 31st.

      Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed with finding of facts.
    Opinion filed April 12, 1916.
    Statement of the Case.
    Action by James V. Walsh, plaintiff, against the New England Casualty Company, a corporation, defendant, in the Municipal Court of Chicago, to recover salary. To reverse a judgment for plaintiff for fifty-four dollars, defendant prosecutes this writ of error.
    Ryan & Condon, for plaintiff in error; Irwin I. Livingston, of counsel.
    No appearance for defendant in error.

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

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

4. Master and servant, § 34 —when evidence insufficient to sustain verdict. In an action to' recover salary, where there was no contract for hiring by the month and where the evidence showed that plaintiff was discharged for good cause, a finding for plaintiff for the amount of a month’s wages after discharge less what plaintiff earned in that time held erroneous.


source: Caselaw Access Project

author: Mr. Presiding Justice Pam

license: Public Domain

text:
    Bartholomae & Roesing Brewing and Halting Company, Defendant in Error, v. Chicago Railways Company and Langsman Teaming Company. Langsman Teaming Company, Plaintiff in Error.
    Gen. No. 21,058.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 12, 1916.
    Statement of the Case.
    Action of tort by Bartholomae & Roesing Brewing & Malting Company, a corporation, plaintiff, against the Chicago Railways Company, a Corporation, and Langsman Teaming Company, a corporation, defendants, in the Municipal Court of Chicago, to recover for damages to plaintiff’s beer wagon as a result of a collision between another wagon and a street car. To reverse a judgment for plaintiff for $78.60, defendant Langsman Teaming Company prosecutes this writ of error.
    The case was tried by the court without a jury, which dismissed the action as against defendant Chicago Railways Company. It appeared that the cause of the accident was that defendant’s wagon, which was standing in rear of plaintiff’s wagon, in front of a saloon, attempted to pull out and go round plaintiff’s wagon, and in so doing was struck by a street car in such fashion as to throw it against plaintiff’s wagon, the impact knocking off certain barrels of beer, with which plaintiff’s wagon was loaded, breaking the barrels and causing the beer to leak out.
    Abstract of the Decision.
    1. Touts, § 30

      —when evidence sufficient to sustain finding of negligence of joint tort feasor. In an action against joint defendants to recover for negligent damage to plaintiff’s beer wagon and beer, where plaintiff had a finding against one defendant, the court dismissing the action as to the other, the plaintiff need only show, to hold the finding, that some negligent act of the defendant found guilty contributed to the injury.
    2. Torts, § 30*—when evidence sufficient to sustain finding that negligence of one defendant contributed to injury. In an action to recover for negligent injury to plaintiff’s beer wagon and beer by a collision between another wagon and a street car, in such fashion as to cause such other wagon to be thrown against plaintiff’s wagon, damaging it, and causing certain barrels of beer to fall off and be broken, the beer flowing out, evidence held sufficient to warrant a finding that negligence on the part of the defendant found guilty contributed to the accident.
    3. Torts, § 23*—when plaintiff may recover against one or ail of joint tort feasors. In an action for negligence where there are joint tort feasors, plaintiff may recover against one or all of such tort feasors.
    Meek & McDonald, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendant in error.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

4. Tobts, § 34*—when joint tort feasor found guilty estopped to claim that other defendant should have been found guiltj). In an action for negligence where there are two defendants, and the action is tried without a jury, a defendant found guilty is estopped to claim that the court may have erred in not also finding the other defendant guilty, the negligence of such other defendant not excusing negligence on the part of the defendant found guilty.


text:
    Benton Warder, Defendant in Error, v. W. J. Lake, Plaintiff in Error.
    Gen. No. 21,116.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Tbial, § 305

      —what constitutes sufficient finding that defendant made unconditional promise to pay debt. In an action to recover the balance due on an account, where it appeared that defendant had been discharged in bankruptcy since the cause of action accrued, but had since the discharge made a payment on account of the debt, a finding and judgment for plaintiff must be taken as a finding that defendant made an unconditional promise to pay the debt at the time of the payment in question.

      Error to the Municipal Court of Chicago; the Hon, John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 12, 1916.
    Statement of the Case.
    Action by Benton Warder, plaintiff, against W. J. Lake, defendant, in the Municipal Court of Chicago, to recover a balance alleged to be due on an account for provisions. To reverse a judgment for plaintiff for $71.53, defendant prosecutes this writ of error.
    Donald Grover, for plaintiff in error.
    M. W. Corneil, for defendant in error.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

2. Bankruptcy, § 85*—when evidence sufficient to sustain finding for plaintiff in action on discharged, account. In an action to recover the balance due on an account, where it appeared that since the cause of action accrued defendant had- been discharged in bankruptcy, but had since the discharge made a payment on account of the debt, a finding for plaintiff held not clearly and manifestly against the weight of the evidence.


text:
    Herbert A. Matthes by Margaret Matthes, Appellant, v. Florence Matthes, Appellee.
    Gen. No. 21,265.
    1. Marriage, § 12

      —when justices of the peace have power to perform marriages. Section 60 of the Municipal Court Act (J. & A. If 3377), abolishing the office of justice of the peace in the City of Chicago, applies only to the judicial acts of such justices, and does not affect the power granted to such justices by section 4 of the Marriage Act (J. & A. If 7348) to perform marriages.
    2. Marriage, § 12*—what is nature of power of judicial officers to. perform marriages. Justices of the peace and other judicial officers empowered by section 4 of the Marriage Act (J. & A. If 7348) to perform marriages are so authorized merely as persons holding certain offices and not by reason of the judicial powers incident to their offices.
    3. Marriage, § 21*—when marriage presumed valid. In actions involving the validity of a marriage, the public is to be safeguarded by resolving all doubts in favor of the validity of the marriage.
    4. Marriage, § 8*—when marriage of minors without consent of parents valid. Section 3 of the Marriage Act (J. & A. f 7347), providing that a male minor of the age of eighteen and upwards and a female minor of the age of sixteen and upwards may marry with the consent of their parents or guardians given in a prescribed manner, is merely directory, there being no words or prohibition or nullification, and a want of such consent will not invalidate the marriage.
    5. Infants, § 20

      —What is reason for rule upholding validity of contracts of marriage of minors above age of consent. The rule that marriages of minors above the age of consent are binding contracts is an exception to the ordinary rule regarding the contracts of minors, the reason being that the body politic is directly interested in the stability of the marriage relation.
    6. Marriage—what is effect of statutes designating age at which persons may contract marriage. Statutes designating the age at which persons may contract marriage are to be regarded as raising the age of consent as established by the common law.
    7. Marriage—what was effect of statute raising age of consent for ■marriage. Section 3 of the Marriage Act (J. & A. if 7347), providing that a male minor of the age of eighteen and upwards and a female minor of the age of sixteen and upwards may marry under certain conditions was intended by the legislature to raise the age of consent or discretion from fourteen and twelve years respectively, as established by the common law, to eighteen and sixteen years respectively.
    8. Marriage, § 29*—when marriage between minors below age of consent may be annulled. A marriage between minors under the ages established by section 3 of the Marriage Act (J. & A. ff 7347) may be annulled by either party before arriving at the age of consent.
    9. Marriage, § 16*-—how marriage between persons under age of consent rendered valid. A marriage between persons under the ages prescribed by section 3 of the Marriage Act (J. & A. If 7347) is valid if after arriving at the age of consent the parties continue the marriage relation, they being deemed in such case to have ratified the marriage.
    10. Marriage, § 8*—when failure to file consent of parent to marriage of minor not conclusive as to age of minor. In a suit to annul a marriage on the ground, inter alia, of the nonage of the husband, the fact that the consent of complainant’s parent was not filed as required by section 3 of the Marriage Act (J. & A. f 7347) is not conclusive as to the age of the complainant at the time of the marriage, the statute being merely directory.
    11. Appeal and error, § 1271*—when presumed that chancellor considered questions of fact and lam and determined controverted questions of law in favor of complainant. In a suit to annul a marriage on the ground, inter alia, of the nonage of complainant at the time of the marriage, where the bill was dismissed for want of equity, it must be presumed, in the absence of anything in the record to show the contrary, that the chancellor, in so dismissing the bill, considered the question as one of fact as well as of law, and that all controverted questions of law were determined in favor of the defendant.
    12. Marriage, § 26

      —when evidence to rebut presumption of validity of marriage sufficient. The presumption which arises in the absence of evidence to the contrary that a marriage is regular and valid may be rebutted, but the rebutting evidence must be strong, distinct, satisfactory and conclusive.
    13. Marriage, § 26*—when evidence sufficient to sustain finding in favor of validity of marriage. A finding in favor of the validity of a marriage will be sustained if there is any evidence to support it.
    14. Marriage, § 29*—when marriage relation not dissolved. Since the standard of public morals is in large measure affected by the degree of vigilance exercised to preserve the sanctity of marriage, the courts view with a jealous eye any attempt to tear asunder the bonds of matrimony.
    15. Evidence, § 475*—when chancellor may consider demeanor of witnesses in determining preponderance of evidence. A chancellor hearing the evidence in a suit to annul a marriage on the ground of the nonage of one of the parties has the right, where the evidence is conflicting, to take into consideration the appearance and demeanor of the witnesses on the stand in determining where the preponderance lies.
    16. Appeal and error, § 1395*-—when finding of chancellor not disturbed on appeal. A court of review will not disturb the finding of a chancellor who sees the witnesses and hears them testify unless it can be seen from the whole testimony that the finding is clearly and manifestly against the weight of the evidence.
    17. Marriage, § 29*—when finding for defendant in suit to annul marriage sustained by evidence. In a suit to annul a marriage on the ground of the nonage of one of the parties at the time of the marriage, and on other grounds, where the evidence was conflicting, a finding for the defendant held not clearly and manifestly against the weight of the evidence.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 12, 1916.
    Rehearing denied April 26, 1916.
    George C. Guthrie, for appellant; Harry F. Brewer, of counsel.
    A. H. Marshall, for appellee.

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

      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 Cunmlativo Quarterly, same topic and section number.

   Mr. Presiding Justice Pam

delivered the opinion of the court.

This is an appeal from a decree dismissing for want of equity the bill of complainant (appellant) to annul his marriage with the defendant (appellee).

The amended bill of complaint (which was filed November 6, 1913) alleged that a marriage ceremony was performed between the parties hereto on March 20, 1913; that at the time of said marriage complainant was under the age of eighteen years; that under the statute of our State he was therefore not capable of consenting to or entering into a marriage contract. The bill further alleged that complainant' did not enter into said marriage with voluntary consent but was compelled to do so by force and under duress, and set forth facts in support of such allegation; and finally, that the marriage ceremony was performed by a justice of the peace residing in Oak Park, Illinois, whose jurisdiction was limited to Cook county outside of the confines of the City of Chicago; that by reason of the Municipal Court Act said justice had no authority to perform a marriage ceremony within the limits of Chicago; for all of which reasons complainant prayed that said marriage be annulled.

Defendant in her answer neither admitted nor denied complainant’s age as alleged in the bill, but stated on information and belief that he was older than eighteen years at the time the ceremony was performed, having been so informed by the complainant himself; that immediately following said marriage, complainant and defendant began living together as husband and wife, and continued to do so until about May 23, 1913; that complainant appeared in person before the county clerk of Cook county on March 20, 1913, and applied for a marriage license for himself and defendant, and that he made affidavit at that time that he was twenty-one years old. The answer further denied that complainant was entitled to have the said marriage annulled.

The first point raised by complainant is that a justice of the peace cannot perform a valid marriage ceremony in the City of Chicago, because the office of justice of the peace has been abolished in the City of Chicago. In this we cannot concur.

Section 4 of our Marriage Act, Rev. St., ch. 89 (J. & A. 7348), provides that marriages may be celebrated either by a judge of any court of record, by a justice of the peace, etc. Section 60 of our Municipal Court Act, Rev. St., ch. 37 (J. & A. 3377), abolishes the office of justice of the peace in the City of Chicago, but in our opinion this provision has reference only to judicial acts of a justice of the peace. Such persons are authorized to perform marriage ceremonies not by reason of the judicial powers incident to their office but merely as persons holding certain positions. The solemnization of the marriage in question was an act with which the Municipal Court Act has no concern.

Our attention has been directed to Bashaw v. State, 1 Yerg. (Tenn.) 177, as being opposed to this view. In that case the marriage was solemnized in one county by a justice of the peace whose jurisdiction was in another county. The validity of the marriage was assailed on the ground that the officiating justice was acting outside his jurisdiction, and the court held the marriage invalid on the ground that a justice of the peace had no jurisdiction whatever outside his county. The court in its opinion made no distinction between judicial and ministerial acts. However, this decision is not in accord with the principle that now appertains as to safeguarding the public by resolving all questions of doubt in favor of the validity of a marriage. (Reifschneider v. Reifschneider, 241 Ill. 92, 97; Jones v. Gilbert, 135 Ill. 27.)

The main contention of complainant, however, is that the marriage is void because at the time it was entered into he was under the age of consent according to the provisions of section 3 of our Marriage Act (J. & A. 7347) supra, which provides as follows :

“Male persons of the age of 21 years and upwards, and female persons of the age of 18 years and upwards, may contract and be joined in marriage: Provided, that a male person of eighteen years of age and upwards or a female person sixteen (16) years of age and upwards may contract a legal marriage if the parent or guardian of such person shall appear before the county clerk in the county where such minor person resides, and shall make affidavit that he or she is the parent or guardian of said minor and give consent to the marriage.”

Complainant maintains that the foregoing section raises the age of consent, from fourteen in males and twelve in females, as at common law, to eighteen and sixteen years respectively; that the age of consent having been raised by act of Legislature in our State, any marriage entered into by a male person under eighteen or a female person under sixteen years of age is void or voidable, and can therefore be annulled or affirmed by either party upon attaining the legal age of consent.

Defendant contends, however, that inasmuch as the section relied upon by counsel for complainant does not contain any direct prohibition or any act of nullification, it is merely directory, and that the common-law age of consent is not thereby repealed, hence a person having attained the common-law age of consent may enter into a valid marriage.

The precise question as raised by thes'é contentions has never been passed on in this State. In Reifschneider v. Reifschneider, supra, the facts differ from those here before us. In that case both parties to the marriage were more than eighteen years of ag*e but the consent of the parents was lacking.' The court held that in the absence of express words of nullification or prohibition in our statute, the language with respect to the consent of the parents was merely directory and did not render the marriage invalid. This principle of law has been adhered to by the courts in other States where similar statutes obtain, and in connection with these decisions must be borne in mind the fact that the parties there involved had at least reached the. age of consent. In the case at bar, however, the contention of the complainant is based upon the presumption that he was less than eighteen years of age at the time the marriage in question was entered into. The holding valid of a marriage contract entered into by minors above the common-law age of consent is an exception to the ordinary rule with reference to contracts of minors. There can be no question that this exception exists because of the fact that a marriage contract differs from all other contracts in its far-reaching consequences to the body politic which is directly interested in and is never indifferent to the importance to the State of maintaining the stability of the marriage contract. Our Legislature, in passing the provision with reference to the age at which persons may contract marriage and in designating eighteen as the age of males and sixteen years as the age of females, was but following the general trend in that direction. The reason therefor is well set forth in Shafher v. State, 20 Ohio 1. In that ease the question arose whether or not the age of consent had been raised by such- statute, and the court said, p. 4:

“Although the marriage relation has its foundation in nature, and is indispensable to the moral improvement and happiness of mankind, a great variety is found to exist in the municipal regulations of civilized states as to the age at which it may be lawfully entered into. Nature has fixed no precise period, and each state must for itself, by fixed and reasonable rules, regulate the matter with regard to its own peculiar circumstances. The common law, as is well known, borrowed from the Roman law, fixed the age at fourteen in males and twelve in females. The code Napoleon fixed it at eighteen in males and fifteen in females. In some of the states of this Union the common law rule prevails, and in others the matter is regulated by statute. In Massachusetts and Illinois it is fixed at seventeen in males and fourteen in females; (as it then existed in Illinois) Michigan and Indiana follow the provisions of our own law. This diversity of regulation is not in all cases accidental. Nature herself in many cases demands such variation. An age that would be right and proper in Spain and Italy would not be adapted to Norway and Sweden. A state of society and a system of policy that makes marriage in many cases a convenient means of controlling estates and confining property in particular channels, as in Great Britain, is best subserved by allowing marriages at a period of life when parental influence and authority is not likely to be overcome by the strong current of affection and independence incident to maturer years. But such a regulation would be poorly adapted to a state of society like our own, where no such policy is to be promoted, where fidelity to the marriage vow has all the sanctity of a religious sentiment, and where all experience has shown that the blessings of the marriage relation can only be realized when entered into with the utmost freedom of choice, and between persons of matured judgment and discretion.”

The opinion in People v. Slack, 15 Mich. 192, is also illuminating on this point. In that case Mr. Justice Cooley, speaking for the court, said, p. 197:

“The age of legal consent is fixed by our statute at eighteen in males and sixteen in females (citing statute) ; and it is provided by another section that, ‘In case of a marriage solemnized when either of the parties was under the age of legal consent, if they shall separate during such non-age, and not cohabit together afterwards, * * * the marriage shall be deemed void without any decree of divorce or other legal process.’ (citing statute). It was suggested, rather than urged, on the argument, that the age of legal consent intended by the section quoted, was that of the common law, which, in the case of females, would be twelve years; but we think there is no foundation for this suggestion. When one part of the statute fixes the age of consent, we should do violence to the plain intent of the legislature if we should hold-that the ‘age of legal consent’ mentioned in any other part of the same statute meant anything else than the legal age thus fixed. The common law rule having been abrogated in this state, there is nothing to which we can refer this phraseology but the rule which the statute has thus substituted.”

The court therefore clearly held that the words “age of legal consent” must be held to mean the age of eighteen and sixteen as fixed by the statute.

In numerous other decisions wherein similar statutes were construed, the courts adopted the reasoning in the aforesaid cases, holding that where a statute designates the age at which persons may contract marriage, even in the absence of words of prohibition or nullification, such provision must be regarded as raising the age of consent as established by the common law. State v. Lowell, 78 Minn. 166; Beggs v. State, 55 Ala. 108; Eliot v. Eliot, 77 Wis. 634, 46 N. W. 806; Willits v. Willits, 76 Neb. 228, 107 N. W. 379; Fitzpatrick v. Fitzpatrick, 6 Nev. 63; Hunt v. Hunt, 23 Okla. 490, 22 L. R. A. (N. S.) 1202, 100 Pac. 541. The leading case to the contrary, and relied upon by defendant, is that of Goodwin v. Thompson, 2 (Greene) Iowa 329. However, we are in accord with the reasoning employed in the foregoing cases, and as they represent the weight of authority, we are of the opinion that when our Legislature designated who may contract marriage it was their intention to raise the age of discretion or consent from fourteen and twelve years, as established by the common law, to that of eighteen and sixteen years respectively; therefore, if a marriage is performed between people under such age it may be annulled by either party before arriving at the age of consent. Necessarily, if after arriving at the age of consent the parties should continue the marriage relation, then they must be considered to have ratified same and the marriage thereby becomes valid and binding.

In the case at bar, however, the question is not only one of law but also one of fact, viz., whether the evidence shows that complainant was under the age of eighteen years at the time he entered into the marriage. If the chancellor’s decree of dismissal was based upon the finding that complainant was more than eighteen years of age and less than twenty-one at the time of entering into the marriage, then the holding in Reifschneider v. Reifschneider, supra, is decisive. The fact that the consent of complainant’s parent was not filed with the county clerk, as provided for in our statute, is not controlling, because, as held in Reifschneider v. Reifschneider, supra, that provision, in the absence of prohibitory language or words of nullification, is merely directory. Had the court found that complainant was more than twenty-one years of age, the question necessarily would not have arisen.

In connection with the question of fact as to the actual age of the complainant was the further question whether or not he had really assented to the marriage, i. e., whether he entered into it as his free and voluntary act or as the result of coercion and duress.

In the absence of anything in the record to show the contrary, it must be presumed that the court," in dismissing the bill for want of equity, did not consider it a question only of law, but also one of fact, and that all controverted questions of fact were determined in favor of the defendant. The law is well established that in the absence of evidence to the contrary, an actual marriage is presumed regular and valid, and though such presumption may be rebutted, yet evidence of invalidating facts must be strong, distinct, satisfactory and conclusive; and if there is any evidence to support a finding in favor of the marriage it will be sustained. (26 Cyc. 897, and cases there cited.) In following this rule of law, the courts no doubt were actuated by the fact that the marriage relation had a direct bearing upon the welfare of the community, especially with reference to the protection of any children born of such marriage, as in the case at bar. The standard of public morals is, in a great measure, affected by the degree of vigilance exercised to preserve the sanctity of this sacred institution, and for this reason alone our courts have adopted the salutary policy of viewing with a jealous eye any attempt to tear asunder the bonds of matrimony.

A marriage had been performed and the parties thereto had entered upon the marital relation and a child was afterwards born. On the questions whether complainant was of nonage or whether the marriage was procured by duress or fraud, the evidence was conflicting. The chancellor found for the defendant. He saw and heard the witnesses testify and was in a more advantageous position than we now are, to determine where the preponderance lay. He had the right to take into consideration the appearance and demeanor of the witnesses while on the stand. We should not be warranted in disturbing his finding unless it is clearly and manifestly against the weight of the evidence. In Phelan v. Hyland, 197 Ill. 395, the court said on this point, p. 397:

“The rule has been often announced by this court that where the chancellor sees the witnesses and hears them testify, we will not disturb his finding and decree unless we can see, from the whole testimony, that it is manifestly against the weight of the evidence. ’ ’

To the same effect are Delaney v. Delaney, 175 Ill. 187, and Burgett v. Osborne, 172 Ill. 227. In Calvert v. Carpenter, 96 Ill. 63, Mr. Justice Mulkey, in delivering the opinion of the court, said, p. 67:

“It can scarcely be repeated too often, that the judge and jury who try a case in the court below have vastly superior advantages for the ascertainment of truth and the detection of falsehood over this court sitting as a court of review. All we can do is to follow with the eye the cold words of the- witness as transcribed upon the record, knowing at the same time, from actual experience, that more or less of what the witness actually did say is always lost in the process of transcription. But the main difficulty does not lie here. There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the identity of the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillful cross-examination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is exposed, in the very nature of things can not be transcribed upon the record, and hence they can never be considered by this court. ’ ’

Having in mind the views so clearly expressed in the foregoing decisions, and after a careful examination of the record, we cannot say that the finding of the court on the questions of fact in issue is clearly and manifestly against the weight of the evidence. The decree must therefore be affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Seymour R. Simpson, Plaintiff in Error.
    Gen. No. 21,674.
    1. Criminal law, § 423

      —when objections to argument of State's Attorney not considered on review. Objections to the argument of the State’s Attorney in a criminal case cannot be considered on review where such argument does not appear in the record.
    2. Conspiracy, § 50*—when evidence sufficient to sustain verdict in criminal prosecution. In a prosecution for conspiracy to defraud by means of the confidence game, evidence examined and a verdict of guilty held not manifestly against the weight of the evidence.
    3. Criminal law, § 570*—when refusal to instruct jury to find defendant not guilty on quashed counts harmless error. Where an indictment contains four counts, one of which is quashed and another withdrawn from the jury at the close of all the evidence, it is not reversible error to refuse to instruct the jury to find defendant not guilty on the counts quashed and withdrawn where the court instructs the jury that they can only find defendant guilty on two counts, and he is found guilty only on one of such counts, defendant not being harmed by the action of the court complained of.
    4. Conspiracy, § 37*—when counts in indictment for conspiracy not merged. A count in an indictment charging conspiracy to commit an offense is not merged with another count charging the commission of the offense, the two counts charging other and different offenses.
    5. Conspiracy, § 54*—when exclusion of evidence on cross-examination harmless error. In a prosecution for conspiracy, the action of the court in excluding a question put to a witness who had turned State’s evidence as to whether he expected a lighter sentence as a result of so doing, although erroneous, is not reversible error as unduly restricting cross-examination, where the- court permitted the witness to answer questions ,as to the witness’ expectation of going free and as to whether any one in the State’s Attorney’s office had told him it would go lighter with him as a result of his action, and where the jury could not have found otherwise under the evidence, the error in such case being harmless.
    6. Criminal law, § 372*—when judgment not in exact accord with verdict not void. The fact that a judgment in a criminal case is not in exact accord with the verdict is merely an informality and does not render it void, where the verdict is in accord with the count under which defendant was convicted and where the punishment fixed by the jury and the sentence imposed are in accordance with the statute for the crime of which defendant was convicted.
    Error to the Criminal Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915._
    Affirmed.
    Opinion filed April 12, 1916.
    Stedman & Soelke, for plaintiff in error.
    Maclay Hoyne, for defendant in error.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

By this writ of error it is sought to reverse a judgment whereby plaintiff in error (defendant below) was adjudged guilty of the crime of obtaining money by means of the confidence game and required to pay a fine of $1,000 and costs. This judgment was rendered upon a verdict of the jury finding defendant guilty of the crime of conspiracy to obtain money by means of the confidence game, the punishment being fixed by the jury at the aforesaid fine.

The indictment contained four counts: The first charg’ed the crime of extortion; the second, conspiracy to obtain money under false pretenses; the third charged conspiracy to obtain money by means of the confidence game; the fourth, the obtaining of money by means of the confidence game. The first count was quashed, and, with the fourth count, was withdrawn by the court from the consideration of the jury, at the close of all the evidence. One R. H. Hickman was jointly indicted with defendant but never arrested or tried. The subject-matter of each count in the indictment was the obtaining unlawfully, by Hickman and defendant, of the sum, of $7 from one Nicholas Gann, a peddler.

The evidence on behalf of the People showed that one Nicholas Gann was a licensed huckster, doing business in the City of Chicago; that there were in force in the City of Chicago at the time in question certain ordinances concerning weights and measures which were required to be used by peddlers in making sales; that the enforcement of these ordinances was under the control of the city sealer and his deputies; that these deputies were provided with official badges or stars, and clothed with the power of arresting violators of the ordinances in question; that the said Gann, on the fifth day of October, 1914, was out on the streets of Chicago peddling potatoes from a wagon; that shortly after he had made a sale to a housekeeper, using a peck measure instead of a scale, for the purpose of determining weight, thereby violating the city ordinance, two men stepped up to his wagon, one of whom was Hickman, who was named as a joint defendant in the indictment, and one Oliver Ashe; that these men charged the said Gann with the violation of the city ordinance because he used a peck measure instead of a scale, and ordered Gann to drive to the police station; that he (Gann) suspected that these men were not authorized inspectors; that upon Ashe’s showing his star, he was confirmed in that belief because the star exhibited was a bogus star, and not the official star then in use. The testimony further showed that he had been informed that there were bogus inspectors threatening peddlers with arrest in order to make a “shake-down”; that while Gann talked with Ashe, the latter told him that for $15 he would let him go; that finally Ashe agreed to take $7, which was all the money Gann then had; that Gann observed a detective near at hand while talking with Ashe; that he signaled to the detective to come up; that Hickman had, up to this time, been following behind, but fled when he saw the detective approach; that as the detective came up, Ashe was promptly placed under arrest, and Hickman made his escape. This testimony was given by Gann and corroborated by Ashe.

Ernest Griffith, the detective who made the arrest, testified that the man with Ashe at the time he was arrested ran away; that he took Ashe to the station, searched him and took $7 and the star away from him.

The evidence further showed that Ashe was indicted for obtaining money by use of the confidence game; that he plead not guilty to this charge; that subsequently Ashe made a confession; implicating the defendant ; that thereafter Ashe withdrew his plea of not guilty and entered a plea of guilty to the charge of petit larceny, upon which sentence was deferred and Ashe was released on his own recognizance.

The testimony further showed that defendant, who was a deputy inspector in the city sealer’s office, had proposed to Hickman and Ashe that they pose as deputy city sealers for the purpose of making pretended arrests of violators of the city ordinance; that the said Hickman and Ashe agreed to act upon defendant’s suggestion, and it was also agreed that whatever moneys were secured on “shake-downs” were to be divided equally among the three, i. e., defendant, Hickman and Ashe; that this arrangement was entered into at a place known as Moffett’s; located at 686 North Clark street, which was a pool room, barber shop and cigar stand combined, where Hickman was employed, and a place frequented by the defendant; that defendant suggested that Hickman and Ashe obtain a book containing the correct weights and measures, to show that they were bona fide inspectors; that defendant furnished them with the star in question, and furthermore promised that if trouble ensued they would be taken care of.

The evidence further showed that Ashe and Hickman had, prior to the pretended arrest of Gann, made a “shake-down” on Irving Park boulevard which netted them $10, which sum was divided equally among the three as per agreement.

Ashe further testified that after his arrest he went to see the defendant and was by him taken to the office of Daniel Cruice, an attorney; and that the defendant there arranged with Mr. Cruice to defend Ashe, and paid Mr. Cruice a retainer.

There was additional testimony by Gann that he saw the defendant in West Pullman while on the streets, and again at his (Gann’s) home, and that during one conversation defendant requested him to be careful as to his testimony and not say “anything bad” about him (the defendant), and in the second, defendant asked him not to go to court at all but to leave the city.

On behalf of the defendant, Mr. Cruice testified that he had not been retained by the defendant nor paid any money as a retaining fee, to appear on behalf of Ashe, and had not seen Ashe in the presence of the defendant, at his office. Defendant himself took the witness stand and denied categorically all of the testimony of Ashe. He did admit that when he was in the vicinity he called on Gann and asked him whether or not he knew anything against him, and that Gann replied that he did not know anything. He denied, however, that he had asked Gann not to say “anything bad” against him, and further, that he had asked him not to go to court or to leave town.

John J. Higgins testified that he saw defendant when he met Gann the first time; that he was present during the entire conversation and that he did not hear defendant request Gann not to say “anything bad” against either himself (defendant) or Ashe.

Upon this state of the record, defendant insists that the finding of the jury is contrary to the weight of the evidence, and, furthermore, that the jury were influenced in arriving at their verdict by the conduct of the State’s Attorney in commenting upon the testimony of Cruice and also in reading a case to the jury to the effect that the Supreme Court did not favor attorneys taking the witness stand.

The argument of the State’s Attorney complained of is not in the record; moreover, the record is barren of any objection to such acts on the part of the State’s Attorney, if they actually did take place, therefore we cannot consider defendant’s reference thereto.

In their argument for a reversal, counsel rely upon the claim that the State depended entirely upon the uncorroborated testimony of Ashe, an accomplice. In urging this contention counsel, while recognizing that a conviction may be obtained upon the uncorroborated testimony of an accomplice, insist that the law does not look with favor upon such testimony; that such testimony is subject to grave suspicion and should be acted upon only with the utmost caution. Defendant argues that therefore the verdict, based, as he contends, on the uncorroborated testimony of Ashe, a self-confessed accomplice, cannot be upheld in the face of evidence by the defendant denying in every way the testimony of Ashe, and the contradiction of Ashe on matters ‘ ‘ of the most vital materiality” by Mr. Cruice. In support of this argument, counsel comment upon the fact that Ashe had not only admitted his guilt in the case at bar, but had also admitted having been convicted for robbery theretofore; and the further fact that Ashe had a strong inducement to testify falsely because under the facts and circumstances in evidence, he had reason to believe that in return for his turning State’s evidence, he would receive immunity from punishment. It is fair to presume that this argument was made not only to the jury but also to the court, in counsels ’ argument on their motion for a new trial, but apparently without avail, as the jury found the defendant guilty and the court overruled his motion for a new trial.

The jury and court, in arriving at their determination, while believing Mr. Cruice’s testimony, may have taken into consideration the fact that Mr. Cruice testified that he had never known Ashe prior to the time he was retained to defend Ashe on the charge of operating a confidence game; that he did know the defendant and liad been retained to defend him on charges arising out of this transaction when before the trial board of the civil service commission, and from these facts may well have arrived at the conclusion that Ashe had been sent to Mr. Cruice by the defendant,—a conclusion that may well have had an important bearing in arriving at a determination as to the defendant’s guilt. The jury and the court may also have taken into consideration the further fact that the defendant, in statements to Peter Zimmer, city sealer, and William F. Cluetts, a deputy inspector of weights and measures, had denied knowing Ashe, and that afterwards on the trial admitted he had known him for more than a year. In addition, there were other circumstances which the court and jury may have taken into consideration in arriving at their conclusion, viz., the fact that defendant, although his home was five or six miles distant from Moffett’s place, was a frequent visitor there; that in that place Hickman had been employed, and that defendant had had previous business dealings with Hickman. Gann’s testimony with reference to the defendant’s visiting him and asking him not say “anything bad” against him in court, and on another occasion suggesting that he leave the city, were circumstances properly to be taken into consideration by the jury with reference to the defendant’s testimony. We cannot, therefore, look with favor upon defendant’s contention that the verdict must have been based entirely upon the uncorroborated testimony of an accomplice. From a careful examination of the facts and circumstances in evidence in this case, we are not only of the opinion that the verdict is not clearly and manifestly against the weight of the evidence, but that the jury were fully warranted in arriving at their conclusion.

Counsel argue that the court erred in not instructing the jury to find the defendant not guilty on the first and fourth counts of the indictment; that the action of the court in withdrawing these counts from the consideration of the jury was not a compliance with defendant’s request, and that the court was without power to take such action. In such contention we cannot concur. The record shows that when the case was submitted to the jury they were told that they could find the defendant guilty on but two counts in the indictment. Defendant was found guilty on but one of these two counts. Therefore we cannot see wherein defendant was harmed by the action of the court.

Several other reasons are urged by defendant for a reversal of the judgment, which involve as a necessary promise that there was a merger of the third count with the fourth count in the indictment. These are argued under points three, four, five and six of defendant’s brief. The third count charged a conspiracy to obtain money by means of the confidence game. The fourth count charged the obtaining of money by means of the confidence game. The crime charged in the third count is distinct and separate from that alleged in the fourth. Under the well-settled law in our State, there was no merger of the third and fourth counts in the indictment. This distinction is clearly set forth in People v. Darr, 255 Ill. 456, where a similar contention was made, and the court said, p. 462: “A conspiracy to commit a crime is one offense; the commission of the crime is another and different offense,” and held that there was no merger. We therefore cannot concur in the argument advanced by defendant on the aforesaid four points.

With reference to defendant’s contention that there is a fatal variance between the evidence and the allegations in the indictment, we are of the opinion that this is without merit, as is also his contention that the court erred in refusing to give to the jury instructions submitted by him as to the fourth count in the indictment', which the court withdrew from the consideration of the jury.

Defendant also contends that the court erred in unduly restricting the cross-examination of Ashe as to his motive in turning State’s evidence. The record upon this point in the case is as follows:

“Mr. Soelke:

“Q. Do you expect to be allowed to go free in consideration of your testifying against Mr. Simpson? A. No, sir.

“ Q. Do you expect to have your punishment in this case made lighter than it otherwise would be, by reason of your testifying against Mr. Simpson, now and in payment therefor?”

The court sustained an objection to the latter question. Then came the following question:

“Mr. Soelke:

“Q. Now, has anyone connected with the state’s attorney’s office told you that if you would testify in this case against Mr. Simpson it would go lighter with you? A. No, sir.”

Counsel, in support of their contention that the ruling of the court constituted reversible error, refer us to Stevens v. People, 215 Ill. 593. There is, however, a difference between that case and the case at bar. In that ease the court allowed no questions to be answered by the witness as to his expectations. In the case at bar, the court did permit the question whether the witness expected to go free entirely in consideration of his testifying, which was answered in the negative. Moreover, there was the question whether the State’s Attorney had told him that he would receive a lighter sentence, and this question was answered in the negative. Under these facts and circumstances, we do not think the case cited by counsel is applicable, as we do not think the cross-examination in the case at bar was unduly limited. While under the reasoning in Stevens v. People, supra, we think the court should have permitted the question to be answered, yet being of the opinion that under the facts and circumstances in evidence in the case at bar the verdict of the jury could not have been otherwise, even had the question been answered in the affirmative, such error must he considered harmless. (People v. Cleminson, 250 Ill. 135; People v. Strosnider, 264 Ill. 434.)

There is the further contention by the defendant, that the judgment does not conform to the verdict of the jury. The jury found the defendant guilty' of conspiracy to obtain money by means of the confidence game, while the judgment entered thereon adjudged defendant guilty of the crime of obtaining money by means of the confidence game. The verdict was in accord with the count in the indictment on which defendant was found guilty; the punishment fixed by the jury was the one provided by statute for the crime of which he was found guilty. The sentence imposed was the payment of a fine of $1,000, in accordance with the verdict of the jury. Therefore, the most that can he said is, that the judgment is informal. Such informality, however, does not render the judgment void. People v. Murphy, 188 Ill. 144.

Finding no reversible error, the judgment will be affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Hattie Zimmerman, Appellee, v. Arthur Rhoede, Appellant.
    Gen. No. 21,910.
    (Not to be reported in full.)
    Abstract of the Decision.
    Bastabds, § 22

      —when evidence insufficient to sustain finding of defendant's guilt. In a bastardy proceeding where there was evidence that relatrix met other men about the time when the child must have been begotten, if it was a full-term child when born, and the evidence was conflicting as to when the intercourse took place between relatrix and defendant, defendant testifying that such intercourse took place at a time which would make the child when born a seven months’ child, and being corroborated in such testimony, evidence examined and finding of guilty held clearly and manifestly against the weight of the evidence.
    Appeal from the Municipal Court of Chicago; the Hon. Arthur J. Gray, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 12, 1916.
    Statement of the Case.
    Bastardy proceeding by the People of the State of Illinois, on the relation of Hattie Zimmerman, against Arthur Rhoede, defendant, in the Municipal Court of Chicago, charging defendant with being the father of the bastard child of the relatrix. From a judgment of conviction, defendant appeals.
    Emil A. Meyer, for appellant.
    Maclay Hoyne, for appellee.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.


author: Mr. Justice Goodwin

text:
    Isidor Cohn and Herman Cohn, trading as Cohn Brothers Cigar Company, Plaintiffs in Error, v. Edward M. Malo et al., trading as Sesti & Ash, Defendants in Error.
    Gen. No. 20,409.
    1. Garnishment, § 24

      —what assets garnishment process will reach. Garnishment process will reach only such assets in the hands of the garnishee as can be reached by an action at law, and does not affect assets which are purely equitable.
    2. Garnishment—when defense against nominal plaintiff not available against real party in interest. In garnishment proceedings, a defense which is good against the nominal plaintiff alone, but which has no merit as between the real parties, cannot be availed of as against a beneficial owner in whose name the action is brought.
    3. Statutes, § 216*—when construed in accordance with decisions of other States having similar statutes. Where a statute, such as the Bulk Sales Act, is substantially the same as statutes in other States which have received a judicial construction in the States where adopted, it is to be assumed that the General Assembly, in passing the act intended that such act should receive the construction given it by the courts of such other States, unless such construction is inconsistent with the spirit and policy of our laws.
    4. Garnishment, § 24*—when goods and chattels obtained by void bulle sale from debtor subject to garnishment. Goods and chattels obtained by a sale from a debtor contrary to the provisions of the Bulk Sales Act, and therefore void as to the creditors of the vendor, may be reached by such creditors in garnishment proceedings.
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiviele, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed April 12, 1916.
    Blum, Wolfsohn & Blum, for plaintiffs in error.
    Nash & Ahern, for defendants in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Plaintiffs in error, hereinafter referred to as plaintiffs, brought an attachment suit against defendant in error Malo, hereinafter referred to as the defendant, and made defendants in error Fred Sesti and William Ash, copartners, trading as Sesti & Ash, parties thereto as garnishees. It appears that while the defendant was indebted to the plaintiffs in the sum of $76.25, he sold his entire saloon business, including all fixtures and merchandise, for $2,200 to the garnishees, who did not demand and receive of him a written statement under oath containing a list of his creditors, or send any notice to said creditors in accordance with the terms of the Bulk Sales Law. It appears that at the time of the service of the attachment writ and at the date of the trial, the garnishees had possession of the goods purchased. It was admitted that the defendant himself had no rights against the garnishees. Upon this showing the court discharged the garnishees, and it is to reverse that order the plaintiffs sued out this writ of error.

The act upon which the plaintiffs rely, entitled “An Act to Regulate the Sale or Transfer of Goods, Wares, Merchandise and Other Chattels in Bulk, and to Provide Certain Penalties in Connection Therewith,” (Cal. Ill. St. Supp. 1916, 1021-1 to 1021-81) went into operation July 1, 1913, and its constitutionality was sustained by our Supreme Court in G. S. Johnson Co. v. Beloosky, 263 Ill. 363. Under the provisions of this statute the failure of the vendee to comply with its terms rendered the sale of the property in question “fraudulent and void as against the creditors of said vendor.” The court below, however, sustained the garnishees’ contention that these goods could not be reached by garnishee process for the reason that so far as the garnishment proceedings are concerned, the action is one in which the plaintiffs, in effect, maintain a suit against the garnishees in the name of the debtor for their own use, and that in consequence the plaintiffs can succeed against the garnishees only where the debtor could have maintained his action against them. It may be noted here that the earliest case in which the question of the proper procedure in garnishment proceedings was discussed, is Stahl v. Webster, 11 Ill. 511, in which Mr. Justice Trumbull, speaking for the court, stated that in eases of garnishment, “The proper practice would, therefore, seem to be, to enter the judgment against the garnishee, in favor of the defendant in the attachment, for the benefit of such attaching and judgment creditors as are entitled to share in its proceeds.” He continued: “There is a peculiar fitness in entering the judgment in favor of the party with whom the debt was contracted, and to whom it is due; and if the judgment exceeds what is due the attaching and judgment creditors, the balance will be for his benefit.”

. As counsel for garnishees in defense have cited a number of Illinois cases in support of their contention that a plaintiff can proceed against a garnishee only where the defendant could have maintained a successful action against him, we wish briefly to refer to those cases.

In Cariker v. Anderson, 27 Ill. 358, the court said, p. 364:

“The object and design of the garnishee process is to subject the debt he may owe the absent or absconding debtor, or his property in the hands of the garnishee, to the payment of the plaintiff’s debt. The garnishee, then, is the defendant to the suit, the law institutes in favor of his creditor, the absent debtor, and he is the plaintiff in that suit. ’ ’

The court in that case reversed a judgment as the suit was brought by the creditor directly against one who should properly have been a garnishee.

In Webster v. Steele, 75 Ill. 544, an attempt was made to reach equitable claims of the debtor. The court, in holding that such claims could not be reached by garnishment, said, p. 547:

“We are entirely satisfied with the construction heretofore given to this statute, that only legal indebtedness can be subjected to garnishment. Equitable indebtedness is not within the purview of the statute. This is plain from the fact, the proceedings authorized can only be had in the law courts, and which are not adapted to ascertaining and adjusting the rights of parties where only equitable interests are involved.
‘1 Our conclusion is, this proceeding cannot be maintained against any of the garnishees, for they are not legally indebted to Webster, in whose name the suit is being prosecuted.”

The same conclusion was reached in Richardson v. Lester, 83 Ill. 55, which was an action to reach equitable assets. The court said, p. 56:

“We are not aware the execution creditors can assert any rights in regard to the property or the proceeds that Robinson could not. Indeed, the action is in the name of Richardson & Robinson, and if they could not recover in an action against defendants, it follows, as a matter of course, the gamisheeing creditors can not, for if they recover at all it must be in the name of the execution debtors. ’ ’

The garnishees in that case were lawfully in possession under a chattel mortgage of the property sought to be garnisheed, and the equitable interest of the mortgagors, if any, could not, of course, be reached at law.

In Wilcus v. Kling, 87 Ill. 107, Mr. Justice Breese, speaking for the court, said, p. 109:

“It is urged by appellants, that, the process of garnishment being a legal proceeding, given by statute, a party is only entitled to recover such indebtedness as could be recovered in an action of debt or indebitatus assumpsit in the name of the attachment or judgment debtor, against the garnishee, referring to Webster et al. v. Steele et al., 75 Ill. 546. That case goes upon the ground the claim sued for must be a legal, not an equitable claim, and such an one as would sustain an action of debt or assumpsit, and this is doubtless the proper view.”

It will be seen that in all the foregoing cases the point actually decided was that the plaintiff could only succeed against the garnishee where the assets in his hands could be reached by an action at law, and that the statute did not intend to permit him to reach assets which were purely equitable. This is also, apparently, the ground of the decision in Chatroop v. Borgard, 40 Ill. App. 279.

In support of their claim that a judgment creditor cannot recover from the garnishee anything which a judgment debtor himself could not recover, garnishees cite Hibernian Banking Ass’n v. Morrison, 188 Ill. 279. The court in that case say, p. 281:

“The general rule is, that a judgment creditor garnisher cannot recover from a garnishee anything which the judgment debtor could not himself recover. Indeed, a garnishee proceeding based upon a judgment is a separate suit in the name of the judgment debtor for the use of the judgment creditor. The fact that the suit is for the benefit of a usee does not enlarge or change the right of the nominal plaintiff, as against the garnishee.”

The court, however, points out that the judgment debtor was engaged in litigating the question of his right to the property in question at the time this suit was brought, and continuing, says:

“Their relative and respective rights were therein presented for adjudication by petitions and pleadings. That court had jurisdiction of the parties and of the subject matter prior to the time plaintiff in error obtained its said judgment against said Blackalls. The rights and lien of plaintiff in error, if any it ever had or acquired by reason of its said judgment or garnishment proceedings, were obtained lis pendens.”

In these circumstances, of course, the plaintiff iu error could acquire no greater rights than his judgment debtor.

In Siegel, Cooper & Co. v. Schueck, 167 Ill. 522, upon which the garnishees also rely, it appeared that the claim sought to be garnisheed was not one owing from the garnishees to the judgment debtor firm, but to one of the partners alone, and was obviously one which could not be reached by a proceeding at law. The court points out that the debtor firm could not have brought an.action against the garnishees, because they were not indebted to it, and therefore as this claim against the garnishees was not the property of the firm, it could not be reached in a garnishment proceeding brought by one of its creditors.

Is the case at bar governed by the cases cited? It is clear that upon the authority of those cases, the plaintiffs ’ rights in this garnishment proceeding must be worked out upon the theory of an action brought in the name of the judgment debtor against the garnishees. Upon that theory, and assuming this garnishment proceeding to be, in substance, an action brought in the name of the defendants against the garnishees, and for the use of the plaintiffs, can the action be sustained? At common law the beneficial owner of a chose in action or other property could not enforce his claim in a court of law, but later, there grew up the theory of the use plaintiff under which the beneficial owner was permitted to bring his action in the name of the legal owner, but for his own benefit. It was, however, necessary that every step in the case should be taken in the name of the nominal plaintiff.

As early as 1848, however, our Supreme Court, in the case of Dazey v. Mills, 5 Gilm. (10 Ill.) 67, so far recognized the party for whom the suit was brought as the real and substantial plaintiff, as to exclude declarations and admissions made by the nominal plaintiff after he had parted with his interest in the subject-matter of the suit. In that case the court said, p. 70:

“It seems to be the tendency of modem decisions to recognize the rights of the beneficial party, and to protect him against the acts of the party possessing the naked legal interest, whenever it can be done without injuriously affecting the rights of the debtor; and subject to this qualification, we are inclined to adopt the rule in its fullest extent.”

Very clearly the admissions of the plaintiff would have been admissible against him if he had been suing for his own benefit, but they were excluded as against his usee.

Assuming, then, that an action in indebitatus assumpsit had been brought in the name of the debtor for the benefit of the creditor against the garnishees for the value of the goods conveyed, what defense could be made to such an action? It is obvious that if the suit had been brought for the benefit of the nominal plaintiff, no action could be successfully maintained by him because he had been paid. Would this also be a defense to an action brought for the benefit of his judgment creditor? It was very early decided in this State in McHenry v. Ridgely, 2 Scam. (3 Ill.) 309, that “when the plaintiff on the record is a mere trustee for another, the defendant may avail himself of any defense, which he might set up against the real owner of. the instrument, provided the action had been brought in his name.” In other words, for the purposes of the suit, the beneficial plaintiff was from the first considered in this State as the real plaintiff, and defenses good as against him were admitted even where they would not have been good against the nominal plaintiff. This early decision was followed in Merrill v. Randall, 22 Ill. 227. The logical corollary to be drawn from this principle which recognizes defenses which are good only against the real plaintiff and not against the nominal plaintiff, is that a defense which is good against the nominal plaintiff alone, but which has no merit as between the real parties, cannot be availed of against a beneficial owner in whose name the action had been brought.

In Jones v. Witter, 13 Mass. 304, the Massachusetts Supreme Court, in an action brought by the assignee in the name of the payee of a note not negotiable at law, held that the defendant having had notice of the assignment before he obtained a discharge from the payee, he could not avail himself of that discharge in prejudice to the assignee. In other words, while the defense was a perfect defense to an action if brought for the plaintiff’s own benefit, it was not a defense to an action brought in his name for the beneficial use of the purchaser.

It was also held in Lamb v. Vice, 6 Meeson & Welsby, 466, that in an action on a bond brought in the name of the obligee, a defense which would have been good against the nominal plaintiff was not a good defense as against the real party in interest. Lord Abinger, C. B., remarked: “If the defendant had pleaded the bankruptcy of the plaintiff, it would have been a good replication that he was suing merely as trustee.”

In the case at bar, so far as the actual parties to this proceeding are concerned, no sale of the goods in question has been made, for it is expressly declared by the statute to be void as between them. That being so, it seems clearly to follow that in a suit brought in the name of the vendor for the use and benefit of his creditor, a sale and payment cannot be set up as a defense which, so far as the real party plaintiff is concerned, does not exist. This conclusion is certainly in harmony with the intimation contained in the opinion of Mr. Justice Cartwright in Commercial Nat. Bank v. Kirkwood, 172 Ill. 563, where in speaking for the court, he said, p. 567:

‘ ‘ The law gave to the plaintiff, upon the commencement of its attachment suit, the right to avail itself of debts due to Rush, and, upon obtaining judgment against him, to use his name and recover for its use whatever might be due from Orr. In so doing it could not, in the absence of fraud or collusion affecting its rights, acquire any better right against Orr than Bush would have if he had brought the suit, but it would have the same right.” (The italics are ours.)

We think the conclusion indicated above is further borne out by the decision of the Supreme Court in G. S. Johnson Co. v. Beloosky, supra, which was an appeal from a judgment in favor of the vendees of property where creditors of the vendors had levied an attachment upon the property sold, basing it upon a failure to comply with the Bulk Sales Act. This judgment was reversed and the rightfulness of the attachment was thereby necessarily sustained. If the goods so transferred by a sale void as to the creditors can be directly attached as the property of his debtor, we see no reason why they may not also be reached by garnishment proceedings. In support of the right of plaintiffs to reach the goods by garnishment proceedings, their counsel have cited Jaques & Tinsley Co. v. Carstarphen Warehouse Co., 131 Ga. 1, which is, in all material respects, similar to the case at bar. In that case, although the general rule that a garnishee’s liability to a creditor of the principal defendant is conditioned upon his liability to such defendant is recognized, a distinction is pointed out in .the case of a conveyance fraudulent and void as to the creditor. They also cite Kohn v. Fishbach, 36 Wash. 69, and Appel Mercantile Co. v. Barker (Grand Dry Goods Co.), 92 Neb. 669, 138 N. W. 1133, which are to the same effect. Counsel further maintain that as the Bulk Sales Law here under consideration is substantially the same as that adopted in Georgia, Washington and Nebraska, and as these decisions construing the statute were published long before the enactment of the Illinois statute, the General Assembly in adopting the statute presumably intended that it should receive the construction given it by the courts of the States from which it was adopted. That this is so unless such a construction is inconsistent with the spirit and policy of our laws, is fully sustained in ReQua v. Graham, 187 Ill. 67.

For the reasons given we are of the opinion that goods and chattels obtained by a sale from a debtor contrary to the provisions of the Bulk Sales Law, and consequently void as to creditors of the vendor, may be reached by such creditors in garnishment proceedings. The judgment of the Municipal Court will, therefore, be reversed and the cause remanded.

Reversed and remanded.


text:
    Johanna Kurowski, Defendant in Error, v. Louis Schurder and Pauline Schurder, Plaintiffs in Error.
    Gen. No. 21,114.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 12, 1916.
    Statement of the Case.
    Action by Johanna Kurowski, plaintiff, against Louis Schurder and Pauline Schurder, defendants, in the Municipal Court of Chicago, to recover money deposited with defendant Pauline, and alleged to have come to the possession of the defendant Louis,, which money was so deposited to be used by defendants for their own benefit and to be returned to plaintiff on demand. To reverse a judgment for plaintiff for $446, defendants prosecute this writ of error.
    Frank F. Tollkuehn, for plaintiffs in error.
    O’Donnell & O’Donnell, for defendant in error.

      Abstract of the Decision.
    1. Assumpsit, action op, § 89

      —when evidence sufficient to establish claim as to amount of money deposited. In an action to recover money deposited with defendants to be used for their own benefit but to be returned on demand, where the evidence as to one portion of the money claimed by plaintiff to have been deposited was conflicting, evidence held sufficient to establish plaintiff’s claim as to the amount deposited.
    2. Assumpsit, action op, § 89*—when evidence sufficient to sustain finding that money loaned prior to specified date. In an action for money loaned, where the evidence was conflicting as to whether a sum of money was loaned prior or subsequent to a named date, evidence held to show that such money was loaned prior to such date. '
    3. Assumpsit, action of, § 18*—when no duty to return deposited money until demand. Where one deposits money with another with the understanding that the recipient shall use it for his own benefit and return it on demand, there is no duty or obligation resting upon such recipient to return it until a demand is made.
    4. Limitation op actions, § 20*—when statute begins to run against claim for money loaned. Where money is deposited with another to be used for the benefit of the recipient, and to be returned on demand, the statute of limitations does not begin to run until such demand is made.
    5. Assumpsit, action of, § 89*—when evidence sufficient to sustain 'finding that one depositing money did not intend to make gift. In an action to recover for money deposited with another to be used for the recipient’s benefit and to be returned on demand, evidence examined and held that plaintiff did not intend to give the money to defendant.
    6. Assumpsit, action of, § 89*—when evidence sufficient to sustain judgment in action to recover money deposited with another. In an action to recover money deposited with another to be used by the recipient for her own benefit, and to be returned on demand, a judgment for plaintiff held sustained by the evidence where it appeared that plaintiff did not intend to give the money to defendant, and where no demand was made vrntil shortly before bringing suit.

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

   Mr. Justice Goodwin

delivered the opinion of. the court.


text:
    Devoe & Raynolds Company, Defendant in Error, v. Patrick O’Malley, Plaintiff in Error.
    Gen. No. 21,191.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 475

      —uihat constitutes preponderance. The question of the preponderance of the evidence does not depend solely on the number of the witnesses testifying.
    2. Sales, § 329*—what evidence may be considered in determining preponderance of evidence in action against oumer of building for materials sold. In an action to recover for paints, etc., where the defense was that defendant did not order the goods, which defendant claimed were for the benefit of his lessee, the court trying the case without a jury has the right to take into consideration, in determining the preponderance of the evidence, the fact that the goods were delivered at and used in decorating defendant’s building, and that when defendant received a bill for the goods he did not repudiate liability, although such facts, of themselves, might not be sufficient to warrant the inference that defendant admitted responsibility for the bill.

      Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 12, 1916.
    Statement of the Case.
    Action by Devoe & Raynolds Company, a corporation, plaintiff, against Patrick O’Halley, defendant, in the Municipal Court of Chicago, to recover for paints, etc., delivered at and used in decorating defendant’s building. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Thomas J. O’Hare, for plaintiff in error.
    Elbert C. Ferguson, for defendant in error.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

3. Saxes, § 329 —when evidence sufficient to sustain finding that owner of building assumed responsibility for payment for goods. In an action to recover for paints, etc., delivered at and used in decorating defendant’s building, where the evidence was conflicting as to whether defendant assumed responsibility for the bill, a finding for plaintiff held supported by the evidence.


text:
    Maurice Spitzer, Defendant in Error, v. Evelyn Meyer, Plaintiff in Error.
    Gen. No. 21,237.
    (Not to foe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed April 12, 1916.
    Statement of the Case.
    Action by Maurice Spitzer, plaintiff, against Evelyn Meyer, defendant, in the Municipal Court of Chicago, to recover for architect’s services. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Moses, Rosenthal & Kennedy, for plaintiff in error; Julius Moses and Sigmund W. David, of counsel.
    Rieger & Rieger, for defendant in error; Franklin S. Catlin and Louis Rieger, of counsel.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Witnesses, § 33 —when husband competent witness for wife. The husband of a married woman is a competent witness in her behalf under section 5 of the Evidence Act (J. & A. If 5522), in a suit against the wife to recover for architect’s services.

2. Tbial, § 68*—when denial to counsel of right to make full offer of what mil be proved by witness reversible error. It is reversible error to deny to counsel the right to make fully his offer of what he intends to prove by a witness whose testimony the court has intimated an intention to exclude, although the other side objects that the offer was merely to prove what another witness had already testified to.


text:
    Ida Osberg by Jacob Osberg, Appellee, v. Cudahy Packing Company, Appellant.
    Gen. No. 21,292.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mabcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 12, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Ida Osberg, a minor, by Jacob Osberg, her next friend, plaintiff, against Cudahy Packing Company, a corporation, defendant, for personal injuries alleged to have been caused by the negligence of the defendant. From a judgment against it for $3,000, defendant appeals.
    The declaration originally consisted of six counts, but prior to the trial, on motion of plaintiff’s attorneys, it was amended by dismissing the fourth, fifth and sixth. The first count alleged, in general terms, that the defendant carelessly and negligently drove its automobile truck, and in consequence the plaintiff was struck and run over. The second count charged that the defendant carelessly and negligently drove the truck at a high, dangerous and excessive rate of speed, to wit, forty miles an hour, while the third count charged that the defendant failed to ring the bell or sound the horn with which the truck was equipped, or otherwise to warn the plaintiff of the danger.
    The evidence disclosed that a chauffeur and helper in the employ of the defendant were driving a truck weighing about 8,700 pounds, loaded with about five tons of meat, in a westerly direction along the north side of Hastings street. The chauffeur and helper were seated in the cab or covered seat, which had celluloid curtains front and back, but open at the sides. The back curtain had holes covered with celluloid about twelve inches square, but there was no testimony as to how the front curtain was constructed.
    The truck entered Hastings street at Loomis street, in the vicinity of Laflin street. On the north side of Hastings street a band was playing, and there were children running about in the street. About seventy-five feet from Laflin street, the plaintiff, a little girl about four years of age, ran out into the street arid was struck and run over by the truck. As a result it became necessary to amputate her left arm about three inches from the shoulder.
    The testimony of all the witnesses substantially agrees in regard to the physical condition of the street and the presence of the children in the vicinity, but there was a conflict in regard to the rate of speed at which the truck was going, and the question of whether there were wagons and a buggy along the north side of Hastings street near the curbstone.
    The chauffeur’s testimony was to the effect that there were two wagons and a buggy; that the little girl ran out from in front of the horse attached to the buggy; that she was about eight feet from him when he saw her; that he used the emergency and foot brakes, and did all he could to stop the ear; that he could make an emergency stop in about twenty feet; that she was about ten feet behind the car when it stopped; that his helper was blowing the whistle; that when he entered Hastings street he was going about twelve miles an hour, but before the accident he slowed down to eight miles an hour. He was corroborated by the testimony of his helper, who, however, said that he did not see the little girl until after the accident. He was also corroborated by a policeman, who said that the truck was going at a slow rate of speed, and that there was a large crowd of little children running around the street to hear the band.
    The witness Stein, for the plaintiff, testified that there were no wagons nor buggy near the place of the accident; that the little girl was about ten feet from the curbstone when she was struck; that he did not hear any horn or bell, and that there was a band playing on the other side of the street.
    A witness who saw the accident from a window said the car was going ten or twelve miles an hour; that there were no buggies nor vehicles along the north side of the street, and that the truck was about fifteen or twenty fe.et beyond the place of the accident. Her testimony was corroborated by that of another witness.
    Counsel for defendant contended that the evidence did not establish any negligence on its part. The undisputed evidence showed the gross weight of the loaded truck was about nine and one-half tons. Plaintiff’s witnesses testified that it was going from ten to twelve miles an hour, while defendant’s testified it was going from seven to eight miles an hour. All agreed that there were many little children in the street in the vicinity of the truck, attracted by the playing of a band.
    John A. Bloomingston, for appellant.
    Daniel A. Levy, for appellee.

      Abstract of the Decision.
    1. Negligence, § 191

      —when question of fact. In an action to recover for injuries by an automobile or other vehicle, the question whether the speed at.which such automobile or other vehicle was driven was negligent .is a question for the jury where the evidence is conflicting.
    2. Appeal and error, § 1411*—when verdict not set aside where evidence conflicting. Where the evidence as to whether or not the rate of speed at which an automobile truck was being driven was negligent is conflicting, the verdict will not be set aside on appeal when not against the weight of the evidence.
    3. Instructions, § 135*—when failure to give unaslced instruction not error. Failure to instruct as to the dismissal of certain counts of a declaration is not error when such instruction was not asked and the declaration as it existed at the time of the trial did not contain the counts in question.
    4. Instructions, § 110*—when instruction as to right to recover not objectionable. In an action to recover for injuries alleged to have been caused by defendant’s auto-truck, certain counts in the declaration of which were dismissed on plaintiff’s motion before trial, an instruction that “if the defendant carelessly and negligently drove the auto-truck as charged in the declaration,” they should find the defendant guilty, is not objectionable as permitting the jury to find defendant guilty on a count which had been dismissed.
    5. Damages, § 211*—when instruction as to amount recoverable for personal injuries not objectionable. In an action to recover for personal injuries, it is proper to give an instruction allowing a recovery for “all damages, present and future, if any, which from the evidence can be treated as a necessary and direct result of the injury complained of.”
    6. Instructions, § 96*—when instruction as to credibility of witness not improper. An instruction that if the jury believe “that any witness has wilfully and knowingly sworn falsely to any material element in this case, then they have a right to reject the entire testimony of this witness, except in those matters, if any there be, where his or her testimony is corroborated by other credible evidence or by facts and circumstances appearing in the case,” is proper.
    7. Instructions, § 89*—when instruction as to preponderance of evidence not objectionable. An instruction to the jury as to determining the preponderance of the evidence, which tells them that they may take into consideration the number of witnesses testifying, is not objectionable.

      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 Goodwin

delivered the opinion of the court.

8. Instructions, § 131 —when refusal of instruction ignoring theories of case proper. In an action to recover for personal injuries to a child by defendant’s automobile, an instruction that “if the child ran in front of the automobile so suddenly that the driver had no notice of any danger,” etc., then plaintiff could not recover, is properly refused since it fails to take into consideration the question whether the accident was the result of such negligent driving as made it impossible for defendant’s chauffeur to avoid the accident after seeing the child.

9. Evidence, § 52*—when refusal of evidence not connected with physical facts of case not error. In an action for personal injuries, the refusal to permit a witness to testify as to what was visible to him at a certain point is not error, where such point was not the one from which the accident was seen by another Witness to whose testimony the question related.


text:
    Paul A. Hart by George A. Hart, Appellant, v. Jessie Hart, Appellee.
    Gen. No. 21,351.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 12, 1916.
    Rehearing denied April 24, 1916.
    Statement of the Case.
    Bill by Paul A. Hart, a minor, by George A. Hart, Ms next friend and guardian ad litem, complainant, against Jessie.Hart, defendant, to annul the marriage of complainant and defendant.
    Complainant exhibited his bill of complaint relating that he was nineteen years of age, that while under the age of eighteen, a marriage ceremony was performed between the complainant and the defendant, that immediately upon the performance of the ceremony complainant and defendant separated, that the marriage was never consummated, that the parties never entered into the marriage status nor lived together as man and wife, and that said marriage was never ratified by complainant in any manner thereafter, and therefore he asked that the marriage be declared null and void. The answer of the defendant admitted the marriage, asserted its validity, averred that defendant and plaintiff lived together as man and wife, and that as a result of the marriage two children were bom, that defendant was living separate and apart from complainant without any fault on her part, that complainant had abandoned her and neglected and refused to contribute to the support of herself and children. Thereafter, she filed her. cross-bill containing allegations similar to those in her answer, and asked that her husband be decreed to provide for her support and maintenance and for the support and maintenance of said children, and alleged that she was then dependent for support upon the charity of her friends; that complainant was employed as a bank clerk, receiving at least twenty dollars a week, that he was a strong, healthy man, able to provide for and support cross-complainant and her children, and asked for separate maintenance and for temporary solicitor’s fees. The cross-bill was sworn to. The affidavits of the complainant, his father and mother sustained the allegations in the bill, and tended to show that he was attending school, and not engaged in any business.
    Upon reading the bill of complaint, cross-bill, answers and affidavits, the court entered an order allowing temporary alimony and solicitor’s fees, from which the complainant appealed upon the ground that the court was without authority to enter it, for the reason that defendant was not complainant’s wife, because the marriage was void, and, if only voidable, had long since been repudiated by the complainant.
    Abstract of the Decision.
    1. Marriage, § 29

      —when allowance of temporary alimony and solicitor’s fees proper in suit to annul illegal marriage. The word “wife” in section 15 of the Divorce Act (J. & A. If 4230), providing for temporary alimony and solicitor’s fees, is not to be construed as limiting the authority of the court to grant such allowances only in cases of lawful marriages, but to permit it to do so in suits to annul void or voidable marriages also.
    2. Divorce, § 1*—when term applicable to annulment of illegal marriage. The term “divorce” as used in the Divorce Act (J. & A. If 4215 et seq.) is not confined to the annulment of lawful marriages, but embraces also suits to declare the nullity of illegal marriages, though void ab initio.

    3. Divorce, § 1*—when term “wife” includes one entering into void marriage. The term “wife or wives” as used in section 19 of the Divorce Act (J. & A. 1f 4234) includes those who have entered into void marriage contracts.
    4. Marriage, § 29*—when allowance of temporary alimony and solicitor’s fees proper though validity of marriage denied. In an action to annul a marriage as invalid, it is not error to allow temporary alimony and solicitor’s fees where there is a prima facie showing of a valid marriage.
    5. Marriage, § 29*—when entry of order in personam for temporary alimony and solicitor’s fees proper without service of process on cross-bill for separate maintenance. Where a minor has exhibited a bill in chancery to have his marriage annulled as invalid and defendant files a cross-bill for separate maintenance, the chancellor may enter an order in personam for temporary alimony and solicitor fees without service of process on the cross-bill.
    Rankin & Dunn, for appellant; Ode L. Rankin, of counsel.
    Caswell & Healy, for appellee.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Abraham Fiedler and Yetta Fiedler, Appellees, v. James F. Bishop, Administrator, Appellant.
    Gen. No. 21,400.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed April 12, 1916.
    Statement of the Case.
    Action by Abraham Fiedler and Yetta Fiedler, plaintiffs, against James F. Bishop, as administrator of the estate of Anna Lietzau, deceased, defendant. Defendant appeals from a judgment of the Municipal Court denying his motion to vacate a judgment entered August 6, 1913, by confession against his decedent for $2,000 and $200 attorney’s fees, on a judgment note dated Chicago, August 5, 1913, for $2,000, payable thirty days after date to the plaintiffs. An order was entered October 13, 1914, allowing the entry of a motion on behalf of defendant’s administrator to vacate the judgment, and setting the hearing for October 23, 1914. On the same day, defendant filed his petition reciting the giving of the judgment note by his decedent August 5,1913, for $2,000, and alleging upon information and belief that his decedent, on August 5, 1913, and for a long time prior thereto, and from thence until her death on August 18, 1915, was an habitual drunkard, and under medical treatment therefor; that on said 5th Jay of August, anJ for a long time prior thereto anJ from then until her Jeath, her reason, mind and memory had been broken down by a long-continued course of excessive indulgence in intoxicating drinks; that for a long time prior thereto she was so frequently and continuously intoxicated that she did not clean her flat or cause it to be cleaned, nor the dishes used by her, and that for two weeks prior to August 5th her condition had been such that she was unable to leave the flat; that plaintiffs supplied her with intoxicating liquors and that her condition was such that plaintiffs must have known that she was about to die shortly thereafter; that she did die on August 18th, on account of and because of the excessive use of the intoxicating liquors, of cirrhosis of the liver; that she was on the 5th day of August mentally incompetent to execute the note in question or to transact business; that at the time of signing the note she did not know the nature of the instrument signed by her, and that it was executed without any valuable consideration given therefor; that she did not thereafter remember that she had signed it, and that said note was fraudulently obtained by plaintiffs. Petitioner further represented that his first information or knowledge of these facts was obtained in July, 1914, when the attorney for one Lucille Kreplin, a minor, and Louisa Lietzau G-eier, the only heirs at law of the decedent, informed him of them; that he verily believes that he has a good defense, and asks that the judgment be set aside and vacated, and that he have leave to file an affidavit of defense, and tenders the sum of $6 costs for a jury. Petitioner filed a number of affidavits tending to sustain the allegations as to his decedent’s incapacity.
    Walter A. Brendecke, for appellant.
    Fred W. Kraft and George F. Pfirshing, for appellees.
   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 58*—when judgment by confession set aside. On timely application to set aside a judgment by confession, it is the court’s duty to allow defendant to plead if a meritorious defense is shown by proper affidavits.

2. Judgment, § 82*—when affidavits sufficient to warrant granting of motion to set aside judgment by confession. Affidavits on a motion to set aside a judgment by confession examined and held to set up a meritorious defense.

3. Judgment, § 82*—when application to set aside judgment by confession not defeated by laches. Affidavits on motion to set aside judgment by confession examined and held not to show such laches as to require the denial of the motion.