text:
    John D. Mattocks, Appellee, v. Chicago & Alton Railway Company, Appellant.
    Gen. No. 5,879.
    1. Commerce, § 4

      —when train and employes engaged in interstate commerce. Where a train itself or any of its cars or merchandise therein are being shipped from a point in one State to a point in another State, the train is engaged in interstate commerce, and an employee assisting in the running of such train is engaged in interstate commerce so as to entitle him to the protection of the Federal Employer’s Liability Act, though he may not be intending to pass outside the limits of a State.
    2. Commerce, § 4*—when evidence sufficient to constitute a prima facie case that train was engaged in interstate commerce. In an action by a brakeman to recover for personal injuries, evidence adduced by plaintiff showing that some of the cars carried by the train had tags thereon indicating shipments from another State, and that the cars themselves were lettered as belonging to railroads located in other States, held sufficient when considered with other evidence to make a prima facie case for plaintiff that some of the cars and the merchandise therein came from another State, and that the train was engaged in interstate commerce so as to entitle him to recover under the Federal Employer’s Liability Act.
    3. Master and servant, § 704

      —when evidence sufficient to show negligence of engineer resulting in injury to brakeman. In an action by a head brakeman against a railroad company to recover for personal injuries received in attempting to board the head end of a freight train, evidence held sufficient to sustain a verdict that the engineer operated the train at a rate of speed which was negligent in view of the fact that he knew it was his duty to permit the brakeman to get upon the head end of the train.
    4. Master and servant, § 205*—application of fellow-servant doctrine under Federal Employer’s Liability Act. Under the Federal Employer’s Liability Act of 1908, a railroad is liable for personal injuries resulting to an employe through the negligence of a fellow-servant.
    5. Master and servant, § 430*—effect of contributory negligence in suits under Federal Employer’s Liability Act. Under the Federal Employer’s Liability Act, contributory negligence is no bar to an action for injuries sustained by an employe, but the employer is entitled to have the damages diminished by a jury on account thereof.
    6. Master and servant, § 302*—when question of assumed risk not involved in suit under Federal Employer’s Liability Act. In an action by a brakeman to recover for personal injuries for the negligence of the engineer in running defendant’s train whereby the brakeman was injured in attempting to board the train, held that there was no question of assumed risk in the case to prevent the brakeman from recovering under the Federal Employer’s Liability Act, and that the court properly refused to submit that question to the jury.
    Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed April 15, 1914.
    Rehearing denied and opinion modified May 21, 1914.
    Stevens, Miller & Elliott, for appellant.
    Weil & Bartley and Nathan H. Weiss, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

On May 21, 1911, John D. Mattocks was in the employ of the Chicago & Alton Railway Company as a brakeman and was head brakeman on a freight train of that company running between Peoria and Dwight. When the train on which he was working reached a station called Nevada, it was to meet and pass a passenger train, and, as the freight train was too long to stand upon the side track at that place, Mattocks was ordered ahead by the engineer to flag the passenger train and to so set the switches so that the passenger train could go in upon, the switch track. When the passenger train had entered the switch track, the switch was closed again and the freight train started ahead. Mattocks was about a quarter of a mile ahead of the freight engine, but as the freight train started up again Mattocks ran back to meet it and attempted to board the second car of the train, as his duties as head brakeman required him to be on the front end of the train. In attempting to board this moving train he was thrown under the wheels and his leg was run over, necessitating amputation below the knee. He brought this suit to recover damages for said injury, and had a verdict and a judgment for four thousand dollars, from which defendant below appeals.

The declaration consisted of two counts, but the jury were instructed at the request of appellant that there could be no recovery under the second count, which was at common law, and the case went to the jury upon the first count, which charged liability under the Federal Employer’s Liability Act of 1908, relating to common carriers engaged in commerce between the several states.

The first section of said act provided, among other things, that every common carrier by railroad, while engaged in commerce between any of the several states or territories, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce for such injury resulting, in whole or in part, from the negligence of any of the officers, agents or employes of such carrier. The third section provided, among other things, that in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employe, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe; provided that no such employe who may be injured shall be held to have been guilty of contributory negligence in any case where the .violation by such common carrier of any statute enacted for the safety of employes contributed to the injury of such employe. Section 4 provided, among other things, that in any action brought against any common carrier under any of the provisions of this act to recover damages for injuries to any of its employes, such employe shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury of such employe. By an amendment in 1910, the jurisdiction of the courts of the United States under said act was made concurrent with that of the courts of the several states, and it was enacted that no case under that act brought in any state court of competent jurisdiction should be removed to any court of the United States. Said original Act of 1908, and the amendatory Act of 1910, are set out in Mondou v. New York, N. H. & H. R. Co., 223 U. S. on pages 6 to 10, and said act is there sustained as valid, and as superseding any prior different statute in any State, so far as relates to injuries occurring in interstate commerce. The first count charged the duty of Mattocks to get upon the front end of his train when it reached him, and the duty of the engineer to run at so slow a speed that Mattocks might safely get upon the same, and that the engineer violated that duty, and negligently ran at a high and dangerous rate of speed, and not a moderate and safe speed, which appellant, through its said servant, the engineer, then knew, and the appellee did not know, and that while appellee, in the exercise of due care and caution for his own safety, was attempting to get on the train, he was jerked and thrown under the train on account of said negligence of appellant, and was injured; and said count further averred that appellant was a common carrier by railroad, engaged in interstate commerce, and that appellee as a workman was employed by appellant in such' commerce, and engaged therein, and that said injuries resulted from negligence of said engineer, who was employed by appellant in such interstate commerce, and engaged therein. Appellant alleges that this train was not engaged in interstate commerce; that its engineer was not negligent; that appellee was injured because of his own negligence; that appellee assumed the risk of his injury; and that the court erred in refusing instructions submitting the question of assumed risk to the jury.

This train contained twenty-two or twenty-three loaded cars, and was made up at Peoria, which was the end of appellant’s branch road in that direction. Appellee went to work upon the train at Peoria, and he was not to go outside of this State with said train. We regard it as settled by numerous decisions in the Federal courts that if the train itself or any of the cars or merchandise therein are engaged in interstate commerce, that is, being shipped from a point in one State to a point in another State, an employe engaged in assisting in running that train is engaged in interstate commerce, although he himself may not be intending to pass outside of the limits of one State. The proof showed that when a loaded ear is started upon a journey it is the custom, and usage of railroads that there he tacked upon said car a tag or card, stating the place where the shipment originated, and also its place of destination, and that said tag remains upon said car until it reaches its destination, and that then the custom and usage is to remove the tag, though it sometimes happens that through carelessness the tag is not immediately removed. The proof showed that the Iowa Central Railroad has a line which runs from a certain point in Iowa to Peoria, in this State, and that some of these cars were received from the Iowa Central at Peoria by appellant, and that there were upon some of these cars tags indicating that the shipment originated at Minneapolis and St. Paul, and that these cards were in a good state of preservation and apparently new. Appellee had not seen the merchandise which was inside these cars, nor had he any other means of tracing the origin of the cars or their shipments. They were cars which, by the lettering upon them, showed that they belonged to railroads located in other States than Illinois. We are of opinion that when all of this proof is considered together, including the testimony of appellee when recalled, a prima facie case was made that some of the cars in this train and the merchandise therein came from another State, and that the train was engaged in interstate commerce. Appellant had upon the stand several of its employes by whom this testimony could have been rebutted if not true. No evidence to the contrary was offered by appellant. Appellant must obviously have in its possession records which show the origin of these shipments, and it saw fit not to offer any testimony upon the subject. We conclude that appellee made a sufficient prima facie case that this train was engaged in interstate commerce, and that he, as an employe working upon said train, was engaged in interstate commerce, and within the protection of the Federal statute.

The testimony shows that the engineer sent appellee forward to open the switch and to flag the passenger train, and that after the passenger train had entered the switch, the engineer started on with his freight train when appellee was a quarter of a mile ahead, and that appellee then ran back in the middle of the track until he had nearly reached the coming freight train and then stepped aside to get upon the head of it, and that this was his duty, and that it was the duty of the engineer to run his train then at a speed slow enough so that the brakeman could safely get upon it; and the testimony for plaintiff was that such safe speed was generally considered to be from three to five miles per hour, although some witnesses for defendant testified that brakemen were accustomed to get on at a higher speed. Appellee stepped to the side of the train, started to run with the train, so as to be in motion in the same direction, and he caught hold and attempted to get upon it, and was thrown down. This was about six o’clock in the evening. Appellee testified that he did not know the train was moving swiftly, but when he caught hold of it he found it was running some ten or twelve miles per hour. The engineer in his testimony concedes that he may have been running twelve miles per hour. The engineer did not look ahead, did not see appellee coming back, and apparently thought nothing about reducing his speed so that appellee could get upon the train. The engineer was in fact talking at that time with the conductor, who was upon the engine. The engineer was told that he was just passing the brakeman, but he did not reduce the speed of his train. There was some evidence to contradict some of these matters, but the jury have believed the witnesses whose testimony was favorable to the contention of appellee, and the trial judge has approved that conclusion, and we consider it as standing as now proven that the engineer operated his train at a rate of speed which was negligent, in view of the fact that he knew that it was his duty to permit the head brakeman to get upon the head of the train. The testimony that this caused the brakeman to be thrown and injured is not disputed. Under the Federal statute the appellant is liable for an injury resulting to appellee by the negligence of a fellow-servant. It is contended that appellee ought to have known that the train was running at a speed which made it dangerous for him to attempt to get upon it, and the proof shows that he had authority to signal the engineer to slow down if he found it necessary to do so, and it is contended that he was negligent in not refraining from climbing upon the train, and, instead, giving a signal to reduce speed. Under section 3 of the Federal statute referred to, such contributory negligence, if it did exist, would not bar a recovery, but the appellant would be entitled to have the damages diminished by the jury on account thereof; and instructions were given for each side authorizing such diminishing of the damages, if the jury found appellee guilty of contributory negligence, and no complaint is made that the damages were not sufficiently so diminished. Appellant contends that appellee assumed all the usual risks of his employment, including the risk of getting upon trains in motion. We are not unmindful that contributory negligence and assumed risk have been distinguished in Chicago & E. I. R. Co. v. Heerey, 203 Ill. 492, and in Knox v. American Rolling Mill Corporation, 236 Ill. 437. We are of opinion, however, that to apply the doctrine of assumed risk to this ease would be to practically nullify the Federal statute. Appellee certainly did not assume the risk that the engineer would negligently run the train at a high and dangerous rate of speed, contrary to his duty, as shown by the evidence. If we say that he assumed the risk of his own negligence, then we make of no effect the provision of the statute that his contributory negligence shall not bar a recovery, but shall only diminish the amount of damages to be awarded. We do not hold that appellee was negligent. Indeed, we are of opinion that the jury could fairly find- from the evidence that he was not negligent, but there is no proof of anything causing this injury except the negligence of the engineer and the possible negligence of appellee.

We are therefore of opinion that there is not in this case, any question of assumed risk, and that the court therefore properly refused to submit the question of assumed risk to the jury.

The clerk will tax the cost of the additional abstract to appellant.

The judgment is therefore affirmed.

'Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Frank Vogel, Jr., Plaintiff in Error, v. City of Rock Island, Defendant in Error.
    Gen. No. 5,929.
    (Not to he reported in full.)
    Error to the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding. Heard in this court at the April term, 1914.
    Dismissed.
    Opinion filed May 21, 1914.
    Statement of the Case.
    Action by Frank Vogel, Jr., against City of Eock Island in which the court below sustained a demurrer to plaintiff’s amended declaration. Plaintiff elected to abide by his amended declaration, and judgment was entered against him for costs. To reverse the judgment, plaintiff prosecutes a writ of error..

      Abstract of the Decision.
    Appeal and eeroe, § 278

      —when judgment entered on sustaining a demurrer not final. A judgment rendered against a plaintiff for costs on sustaining a demurrer to his declaration is not a final judgment which is reviewable on writ of error, where it does not adjudge that plaintiff take nothing by his suit and that defendant go hence without day, etc.
    W. M. Chamberlain and Sturtz & Ewan, for plaintiff in error.
    J. F. Witter, for defendant in error.

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

   Per Curiam.


text:
    H. J. Bennett, Appellant, v. Fred Nicholson et al., Appellees.
    Gen. No. 5,968.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Stark county; the John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1914.
    Dismissed.
    Opinion filed May 21, 1914.
    Statement of the Case.
    Action by H. J. Bennett against Fred Nicholson and others to recover on a promissory note. After a motion for a new trial had been denied the following entry was made: “It is hereby ordered by the court that judgment be and the same is hereby entered on the verdict. ’ ’ From such supposed judgment, plaintiff appeals.

      Abstract of the Decision.
    1. Judgment, § 2

      —when entry not a judgment. An entry which does not show for whom or against whom it is rendered is not a judgment.
    2. Appeal and ebbob, § 334*—necessity for judgment. An appeal will not lie from an entry of the court which is not a judgment, for the reason that it does not show for whom or against whom it was rendered.
    3. Appeal and ebbob, § 784*—sufficiency of dill of exceptions. On appeal from a judgment rendered after a motion for a new trial was denied, the bill of exceptions, though it embodies the motion for a new trial, is insufficient where it contains no recitation that any verdict was rendered or any motion for a new trial made, or any decision of such motion adverse to appellant.
    4. Appeal and ebbob, § 814*—necessity that dill of exceptions contain instructions. A bill of exceptions should contain all the instructions on which rulings thereon are assigned as error.
    5. Appeal and ebbob, § 768*—matter which should not de certified in record. It is not the province of the clerk to certify in the record what instructions were requested by the parties or what ruling the court made thereon.
    A. P. Miller and Daugherty & Marsh, for appellant.
    James H. Rennick and James H. Andrews, for appellees.

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

   Per Curiam.


author: Mr. Presiding Justice Carnes

text:
    Jult L. Hammalle et al., Appellees, v. Lafe Lebensberger, Appellant.
    Gen. No. 5,805.
    (Hot to be reported in full.)
    Appeal from the Circuit Court at La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed July 31, 1914.

      Abstract of the Decision.
    1. Homestead, § 114

      —title of purchaser at execution sale. A purchaser at an execution sale' of homestead property worth less than one thousand dollars, without the homestead being set off as provided by law, acquires no title or right, legal or equitable, in or to the property.
    2. Statutes, § 270*—when pleading of statute sufficiént. A bill to set aside as a cloud on title an execution sale and a certificate of sale issued pursuant thereto, on the ground that the sale was of homestead property of a value less than one thousand dollars, need not plead the homestead exemption statute other than by apt words to show that the aid of the statute is invoked.
    3. Quieting title, § 90*—when' insufficiency of Mil cannot "be complained, of on review. On appeal from a decree setting aside as a cloud on title an execution sale of a homestead estate and a certificate of sale issued pursuant thereto, on the ground that the value of the homestead interest was less than one thousand dollars, defendant cannot complain that the complainants’ bill did not aver that the value of the homestead interest was less than such amount, where the allegation on the bill as to value was by inference only, but defendant understood it, and both parties introduced evidence on that issue and the defendant did not raise the objection in the trial court.

      Statement of the Case.
    Bill by Jult L. Hammalle and Thomas Tully against Lafe Lebensberger and others to set aside an execution sale and a certificate of sale executed to the defendant as a purchaser at said sale. Issues of fact were joined and the case was submitted to the master to take proofs and report. The master reported the proofs taken by him with a recommendation that a decree be entered as prayed in the bill. Objections and exceptions were filed and passed upon by the court and decree was entered granting the relief prayed. To reverse the decree, defendant Lebensberger appeals.
    James J. Conway, for appellant.
    E. J. Kelly, for appellees.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

4. Quieting title, § 87*—when decree as to cost proper. In an action to set aside as a cloud on title an execution sale and a certificate of sale executed to the purchaser at such sale a decree granting relief and ordering the purchaser and the judgment creditor to pay the costs, held not erroneous as requiring the purchaser to pay cost, where he purchased at such sale with record notice of complainants’ title to the premises.

5. Quieting title, § 81*—sufficiency of decree. A decree setting aside as a cloud on title an execution sale and a certificate of sale issued to defendant as a purchaser at such sale held not erroneous, for the reason that it declared the judgment void as against the judgment debtors who were not made parties to the suit, where the decree finds the judgment and proceedings under it void and of no effect “as against complainants,” and the order further states that they be set aside as a cloud upon the title of complain ants.

6. Appeal and ebror, § 1696*—when objection to master’s conclusions waived. An objection that the master had no authority to report his conclusions for the reason that the reference only required him to report the evidence, held waived where the appellant appeared before the master and the court with objections and exceptions to the report without raising such question.

7. Appeal and ebror, § 1432*-—when want of authority of master to report conclusions harmless. An objection that the master was not authorized by the reference to report his conclusions is immaterial where the decree was based on the findings of the court from the evidence reported by the master.


text:
    Louis D. Garlick, Plaintiff in Error, v. The Mutual Loan & Building Association of Joliet, Defendant in Error.
    Gen. No. 5,842.
    1. Equity, § 559

      —right to file bill of review. Leave must be obtained of the court before filing a bill of review on the ground of newly-discovered evidence.

      2. Equity, § 573

      —application for leave to file hill of review. On application for leave to file .a bill of review, a copy of the bill proposed to be filed should be presented with the petition.
    3. Equity, § 569*—when hill of review not permitted. A bill of review to review a decree based on an accounting between the parties should not be permitted on the ground of newly-discovered evidence, on a showing that such evidence would change the result of the accounting in a sum less than would be the probable costs of prosecuting the new suit.
    4. Equity, § 570*—when showing for leave to file hill of review on ground of newly-discovered evidence insufficient. On application for leave to file a bill of review on the ground of newly-discovered evidence, the petition and accompanying affidavits held not in themselves to show newly-discovered evidence of sufficient importance to entitle the petitioner to the right to file such bill.
    5. Equity, § 570*—sufficiency of newly-discovered evidence as grounds for hill of review. A letter found in the State Auditor’s office which is not a paper required to be filed in such office cannot be availed of as newly-discovered evidence as grounds for leave to file a bill of review, where the author of the letter is dead and it amounted to nothing more than would the letter of a deceased person.
    6. Equity, § 577*—what evidence must he preserved to review or denying leave to file hill of review. On writ of error to reverse an order refusing leave to file a bill of review on the ground of newly-discovered evidence, it.is the duty of the plaintiff in error to bring before the court of review the record of the former case, fully showing what was brought to the trial court’s attention that would properly govern it in deciding the question, since if only a part of the evidence on which the court acted is before the court of review it must assume that the omitted part justified the decision of the trial court.
    Error to the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1913,
    Affirmed.
    Opinion filed July 31, 1914.
    John T. White, for plaintiff in error; Edward C. Hall, of counsel.
    J. W. Downey, 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 Carnes

delivered the opinion of the court.

This writ of error is prosecuted to reverse an order entered by the trial court in September, 1910, refusing leave to file a bill of review on a petition filed alleging newly discovered evidence. The decree sought to be reviewed was entered in a suit begun by a bill filed by Louis D. G-arliek, plaintiff in error", and his wife, in March, 1903, against the defendant in error, a Building and Loan Association, asking to have a quitclaim deed declared a mortgage and for an accounting as to an indebtedness of many years standing. A cross-bill was filed by the defendant asking an accounting and foreclosure; and subsequent proceedings included three different statements of the account, two before the court and one before the master, on such evidence as the parties were able to produce of the various numerous transactions of the kind and character usual in Building and Loan Associations when a member gets in default in paying his dues and becomes liable to fines and payment of expenses incurred in protecting the mortgaged real estate. There were three decrees of foreclosure entered by different judges of the trial court, the last of which was rendered in February, 1907, and afterwards affirmed in this court and in the Supreme Court. The defendant purchased the premises at the foreclosure sale, the time of redemption expired and in December, 1908 it, by aid of a writ of assistance, obtained possession of the property. The case has been four times in this court and is found reported in 116 Ill. App. 311, 129 Ill. App. 402, 135 Ill. App. 490, 139 Ill. App. 448, and once in the Supreme Court reported in 236 Ill. 232; in which opinions full statements of the matters involved may be found.

On May 11, 1910, plaintiff in error filed his .petition for leave in this case, defendant in error entered its appearance and the court heard the case on the petition and accompanying affidavits, the answer of defendant in error and the reply of petitioner. No copy of the bill proposed to be filed was presented with the petition. Such would have been a better if not necessary practice. We presume without investigating or deciding the matter that leave should be obtained to file the bill and not a bill. As a general rule a copy of the pleading should be set out with motion for leave to file unless the facts to be set out in the pleading fully appear in-the motion for leave (31 Cyc. 502); but no question is raised as to the method of procedure, and we will consider the question on the record before us whether plaintiff should have been permitted to file a bill of review properly setting out among other things the allegations in his petition of newly discovered evidence. It is there alleged that after the final decree and while the case was pending in the Appellate Court petitioner discovered among old papers in his basement eleven cancelled checks aggregating $1,132.09, varying in amounts from $76.50 to $252.58, and in dates' from May 28, 1891 to September 27, 1892, payable to and indorsed by defendant; and he avers in his sworn petition That he is advised and verily believes the fact to be that no credit was given him for any, and certainly not for all of said payments, represented by said newly discovered checks or receipts upon said loans upon the books of said Association.” And he files with his petition the affidavit of E. C. Hall, an attorney in the case, in which it is averred: ‘ That according to affiant’s investigation and belief, a considerable part of said payment will be found on examination not properly accounted for by the Association in its accounting heretofore rendered in this cause.”

The petition also alleges that since the final decree there has been discovered in the State Auditor’s office the report of an inspector now deceased, with reference to the condition of the defendant on July 1, 1899, to the effect that on March 22, 1899, there appeared in the cash book of the Association an entry crediting instalments with $4,321.65, and charging contingent funds with a like amount, that the secretary explained he wished to reduce a loan of $12,000 made to L. D. G-arlick but could not explain why he had credited the dues account. It is on account of these alleged discoveries of evidence that leave is sought to file a bill of review. That leave must be obtained before filing a bill of review on the ground of newly discovered evidence is settled law recognized by our Supreme Court in many cases from Griggs v. Gear, 8 Ill. (3 Gilm.) 2 down to Harrigan v. County of Peoria, 262 Ill. 36. The Court said in Schaefer v. Wunderle, 154 Ill. 577; “The prayer of the petition for leave to file a bill of review will not be granted except upon affidavit satisfying the court, that the alleged new. matter was not known to the petitioner and could not have been discovered and produced or used by him, by the exercise of reasonable diligence, before the entry of the decree sought to be reviewed. The affidavit should be positive, and. not merely upon information and belief. The new evidence relied upon must be distinctly stated, and the affidavits of witnesses must be filed in support of the averments.” And in Elzas v. Elzas, 183 Ill. 132: “It must be such as would apparently have produced a different result had it been known and brought before the court. * * * The, newly discovered evidence must be distinctly stated and the affidavits of witnesses must be filed in support of the averment. * * * When the petition is presetned the court considers its statements, and the affidavits in support of it, and the record in the original case. The court then, upon looking at the whole case, exercises a sound judicial discretion, and unless such discretion has been abused the decision will not be disturbed.”

We are of the opinion that had plaintiff presented a bill of review based on this' showing of newly discovered evidence with all other proper averments, including due diligence in discovering the evidence, he was not entitled to leave to file it. The affidavits of himself and his attorney would he true if some, small amount of the payments evidenced by the checks had not been credited in the accounting on which the final decree was based. We assume a bill of review should not be permitted in a case of this character on a showing that newly discovered evidence would change the result of the accounting in a sum less than would be the probable costs of prosecuting the new suit begun by the filing of the bill. The reply of defendant to plaintiff’s petition asked the court to consider the whole record in the former case to determine the significance of this newly discovered evidence. Plaintiff in replying to this answer denied that it was necessary to consider the whole record but admitted that certain designated pages were pertinent to the inquiry. Those pages are not preserved on the record filed here. It is obvious that in this case where there had been an accounting involving a great many items of payment by plaintiff, extending over a long period of years, it was of no significance whatever to say that he had discovered certain evidences of certain payments without further saying that he had not received credit in his former accountings for those payments, and whether he had so received credit could best be ascertained by an examination of the account stated by the master and the evidence on which he based that statement. We assume the court did so examine that account and statement in “looking at the whole case” as suggested in Elzas v. Elzas, supra; and for aught we can know he found those items credited in the account upon which the decree was based. They may have been so credited in the pages of the record, that both parties to the petition asked the court to examine. Plaintiff assumes in his argument that defendant should have preserved and brought here such parts of the original record as would have shown or tended to show that these items had been credited. This is not a correct view of the situation. The court passed on the petition on the affidavits and evidence presented to it together with such knowledge of the case as he might obtain from a view of the record. It was the duty of plaintiff to bring before this court a record fully showing what was brought to the trial court’s attention that could properly govern it in deciding the question. If only part of ^the evidence on which the court acted is before us we must assume that the omitted part justified its action.

We see nothing in the discovery of the paper mentioned in the State Auditor’s office. It was not a paper required by law to be filed in that office. The author was dead and it amounted to nothing more than would the letter of any deceased person stating that he had examined defendant’s books and found certain indications and got certain admissions from the secretary that plaintiff was entitled to a credit. At most the showing is that plaintiff might have proven something by the inspector if he had not unfortunately died. “If a person in official station is bound to record a fact, the proper proof is a copy of the record duly authenticated. ‘But as to matters which he was not bound to record, his certificate, being extra-official, is merely the statement of a private person.’ ” Schaefer v. Wunderle, supra.

Various other reasons sustaining the action of the court below are suggested by defendant in error and discussed in the briefs; but finding that we have not a sufficient record of the facts on which the trial court is presumed to have acted to warrant a reversal of its order, even if the newly discovered evidence seemed on the record before us to require a reversal, and also being of the opinion that the petition and accompanying affidavits fail in themselves to show newly discovered evidence of such importance as" to entitle petitioner to relief, we need not consider such other matters.

The judgment is affirmed.

Affirmed.


text:
    Frank Watters, Appellee, v. P. E. Kroehler Manufacturing Company, Appellant.
    Gen. No. 5,870.
    1. Master and servant, § 98a

      —what may he recovered under Workmen’s Compensation Act for injury to hand. Where an employe sustains injuries resulting in the amputation of the forefinger of his right hand at the second joint and also an injury to the thumb and was unable to return to work until fifteen weeks after the injury, when he was able to earn as much wages as before the injury, held that he was entitled to recover under paragraphs “a” and “b” of section 5 of the Workmen’s Compensation Act of 1912, J. & A. If 5453, and also under paragraph “e” of such section, for disfigurement of his hand.
    2. Master and servant, § 98a*—right of employe to recover compensation for disfigurement of hand.' Paragraph “c” of section 5 of the Workmen’s Compensation Act of 1912, J. & A. T 5453, construed as not preventing an employe from recovering thereunder for a permanent disfigurement of his hand for the reason it caused him to quit work for a number of days.
    3. Master and servant, § 833*—when error in admission of evidence harmless. In an action by an employe to recover compensation for injuries, admission of incompetent evidence as to the manner of the injury held harmless, where it did not induce an excessive Verdict and it could not have harmed appellant in any other way.
    Appeal from the County Court of Kankakee county; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed July 31, 1914.
    Ralph F. Potter, for appellant; J. Bert Miller, of counsel.
    Burns & Burns, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Appellee, Frank Watters, was in the employ of P. E. Kroehler Manufacturing Company, the appellant, October 14, 1912, and on that date sustained injuries arising out of and in the course of his employment, resulting in the amputation of. the first finger of his right hand at the second joint, and an injury to the thumb, whereby a portion of the flesh from the end was cut off. He was receiving wages at the rate of twelve dollars per week and did not return to work until fifteen weeks after the injury, when he. became able to earn as much or more wages in the same or some other employment. The parties were subject to the terms of the Workmen’s Compensation Act, approved June 10, 1911, in force May 1, 1912 (J. & A. jff[ 5453 et seq.), and after arbitration proceedings under that act the case was tried with a jury, resulting in a verdict and judgment of four hundred dollars for appellee. Appellant claims that under that act compensation is measured solely in terms of lost wages, and that it was intended only to reimburse an injured employe for a portion of the wages he loses by reason of disability, or inability to earn his customary wage.

The amount of compensation to be - paid in a case resulting in disability, but not in death, is determined by section 5 of that Act (J. & A. j]" 5453), and the issues presented here depend upon the construction of paragraph “c” of that section. Paragraph “a” provides for the payment of certain items of medical, surgical and hospital expenses. Paragraph “b” for the payment of one-half of the earnings of the employe during the period of disability, commencing on the eighth day after his injury. Appellant recognized its liability and paid in full everything due under these two paragraphs. Paragraph “c” provides: “If any employe, by reason of any accident arising out of and in the course of his employment, receive any serious and permanent disfigurement to the hands or face, but which injury does not actually incapacitate the employe from pursuing his usual or customary, employment so that it is possible to measure compensation in accordance with the scale of compensation and the methods of computing the same herein provided, such employe shall have the right to resort to the arbitration provisions of this Act for the purpose of determining a reasonable amount of compensation to be paid to such employe, but not to exceed one-quarter (%) the amount of his compensation in case of death.” Paragraph “d” applies where “The employe has been partially, though permanently incapacitated from pursuing his usual and customary line of employment. ’ ’

The contention of appellant is that while appellee received a serious and permanent disfigurement of the hand, still the injury did not actually incapacitate the employe from pursuing his usual or customary employment, therefore that he cannot recover under that paragraph. We are of the opinion that the following clause of the paragraph must be considered, and that while it did not actually incapacitate appellee from pursuing his usual employment, yet it is impossible to measure compensation for such disfigurement under the methods of computing the same provided by the act. We agree with appellant that there can be no recovery under paragraph “d,” which provides for a recovery of the difference of his earnings before and after the injury.

Appellant’s" construction of the statute finds some support in the language of the section under consideration. But if that construction be adopted it leaves an employe to recover for a disfigurement, for instance of the face, that did not result in incapacitating him from pursuing his usual employment, and therefore left bim without any claim under paragraph “b,” but if his injury incapacitated him long enough so that he received something under that clause, then he was left remediless. We do not think it reasonable that the Legislature intended such a result. Paragraph “c” is intended to provide compensation for a disfigurement, and it seems to us unreasonable to construe it as providing such compensation in cases where the disfigurement did not cause any cessation of work and denying it in other cases - where disfigurement did cause a few days incapacity for work.

We had a similar ease before us at the last term (Stevenson v. Illinois Watch Case Co., 186 Ill. App. 418), and there reached the-conclusion here announced as to the construction of the statute. We now see no reason for holding otherwise.

Evidence was admitted over defendant’s objections as to the manner of the injury. If incompetent, and we assume it was, for the court directed the jury to disregard it, it did not induce an excessive verdict, and we see no other way in which it could have harmed appellant.

The judgment is affirmed.

‘Affirmed.


text:
    Anna Hoffman et al., Appellants, v. John Hanley, Sr. et al., Appellees.
    Gen. No. 5,908.
    1. Mortgages, § 605—rights. of foreclosure purchaser when heirs of a comortgagor not made parties. Where, in an action to foreclose a mortgage executed by a husband and wife who were tenants in common of the mortgaged premises, the wife died pending the suit and her death was suggested of record on the mistaken assumption that she had only a dower interest in the premises and the case proceeded to a decree without making the wife’s heirs parties, held that the heirs of the wife were not bound by the decree, and that the purchaser at the foreclosure sale was not thereafter entitled to file a bill to subject the interest of such heirs to the lien of the mortgage.
    2. Mortgages, § 677*—when mortgage sale discharges the mortgage. When a mortgage sale realizes the whole amount of the debt, interest and costs, the mortgage has expended its force and the property is no longer subject to its provisions.
    3. Mortgages, § 605

      —caveat em/ptor. The rule of caveat emptar applies to foreclosure sales.
    Appeal from the Circuit Court of Bureau county; the Hon. Joe A. Davis, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    H. H. Dicus and Edward L. Eagle, for appellants; Russell Jackson, of counsel.
    Josef T. Skinner, for appellees John Hanley, Jr., and Joseph Gentz, Jr.

      See Illinois Notes Digest, Veis 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 Carnes

delivered the opinion of the court.

Appellant Anna Hoffman filed a bill to foreclose a mortgage on a lot in Spring Valley, Illinois, given by appellee John Hanley, Sr. and his wife Isabella Hanley, who held the title to the land as tenants in common, to secure Hanley’s debt of five hundred and fifty dollars, making Hanley and his wife and the tenant in possession defendants. While the suit was pending Mrs. Hanley died intestate, leaving five children surviving. Her death was suggested of record, but on the mistaken assumption that she had in her lifetime only a dower interest in the land, the case proceeded to a decree, finding that she had only a dower interest, without making her heirs parties. Anna Hoffman bid at the master’s sale under the decree a sufficient amount to cover the debt and costs and received a master’s certificate of purchase, which she assigned to August Uihlein, now deceased, and he in due time received a master’s deed of the premises.

Afterwards, discovering the mistake as to the title, the appellants Anna Hoffman and Bobert Uihlein, executor, filed this bill to subject the interest of the five children to the lien of the mortgage. Three of the children were adults and were defaulted for want of answer. A guardian ad litem was appointed for the two that were minors and answered for them. There was a trial before the chancellor in which the above facts appeared in evidence, and a decree dismissing the bill for want of equity, from which this appeal is taken.

It is not contended that the foreclosure proceedings have any effect on the rights of the heirs of Isabella Hanley by way of binding them by any of the provisions of the decree, but it is argued that they inherited only an equity of redemption in the land, and have no greater rights than Isabella Hanley had in her lifetime. We presume they have only the rights she would have if living and not a party to the action. She owned only an equity of redemption in her half interest in the land until the mortgage debt was satisfied; and until that time- she would have been compelled to redeem to clear her title, and failing to do so the mortgage could have been foreclosed as to her interest in the land as well as the interest of her husband. But on the satisfaction of the mortgage debt, either by payment by her husband, the debtor,' or otherwise, her title was discharged from the mortgage. The effect of the foreclosure decree and sale for the amount due on the mortgage debt was to satisfy the debt and discharge the mortgage. The court so held in Ohling v. Luitjens, 32 Ill. 23, a case very similar to this, and we do not find that decision overruled or modified in later cases. It seems to us controlling here.

When the mortgage sale realizes the whole amount of the debt, interest and costs, the mortgage has expended its force and the property is no longer subject to its provisions. Bogardus v. Moses, 181 Ill. 554; Ogle v. Koerner, 140 Ill. 170; Davis v. Dale, 150 Ill. 239; Rawson v. Bethesda Baptist Church, 221 Ill. 216. The law has been applied in foreclosure sales, where the purchaser neglected to take out a deed within five years in cases that seem to work more hardship than this case. Lightcap v. Bradley, 186 Ill. 510, and later cases following that decision.

The hardship here comes from a mistake by. a purchaser at a judicial sale as to the title he will acquire by his purchase. Many cases have arisen where such mistakes have been made, and the law has been long settled that the rule of caveat emptor applies.

The decree is affirmed.

Affirmed.


text:
    The City of Aledo, Appellee, v. Tri County Light and Power Company, Appellant.
    Gen. No. 5,910.
    1. Injunction, § 190

      —sufficiency of bill to restrain electric power company from bringing electric current into city. A bill to enjoin an electric light and power company from bringing electric current into the city from an outside source, held to allege with sufficient certainty that the company was about to do the act, where it alleged that the company had begun to construct power lines through the city and was proposing to conduct electric current from a plant outside the city.
    2. - Eeectbicity, § 2*—right of power company under its franchise to change its current system. Under an ordinance granting an electric light and power company the right to install either “the three wire direct or the alternating system,” the company after having elected to use the three wire direct current system is not entitled to change to the other system where a part of the citizens of the city have expended large sums of money to connect with that system, which would be lost if such change were made.
    Appeal from the Circuit Court of Mercer county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.

      Church & Church, for appellant.
    Graham & Carlstrom, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

This is an appeal "by the Tri County Light and Power Company from an order denying a motion to dissolve a temporary writ enjoining it from bringing electric current into the City of Aledo, appellee, and distributing it upon the streets, alleys and public grounds of the City; and also enjoining it from changing from a three wire direct current system to an alternating current system. It is claimed that the bill, on the face of which the injunction was granted, does not state with certainty that it was about to do the act complained of, and that under the ordinance in question appellant had a continuing option to use either system.

The ordinance of appellee authorized appellant’s grantor “To erect, establish and maintain an electric light, heat and power plant in the City of Aledo, Illinois.” Granted permission to “Enter upon and use the streets and avenues within the said city for the erection of poles and other apparatus necessary to operate an electric light, heat, and power plant within the said City of Aledo;” and further provided “The three wire direct or the alternating system must be installed.”

The bill was filed September 8, 1913, and alleges that appellant and its grantors had operated their electric light heat and power plant in said City ever since 1905; that the system originally installed was the three wire direct current that citizens of said City had invested money aggregating $50,000 in electric apparatus of various kinds only adapted to the three wire current electric system and incapable of use with any other type of current; that such investment will be lost if the current is changed; that appellant has begun to construct power lines through said City without authority, installing large poles, cross-arms and other electrical fixtures and is proposing to conduct electrical current from a plant maintained at or near Mathersville, in Mercer county, through the City of Aledo, and is proposing to transmit into Aledo from said plant at Mathersville an alternating current at a voltage of 33,000 volts, highly dangerous to the lives of the inhabitants of the City and a danger to the property of its citizens and taxpayers.

Counsel discuss two questions: (1) Has appellant the right to bring current into the City from an outside source? (2) Has appellant a continuous option to change its system of electric current? As to the first, appellant concedes it has not the right, but says the bill is insufficient in its allegations that it was about to do so. We are of the opinion that the purpose of appellant to bring electric current from a point outside the City and distribute it within the City is stated with sufficient certainty, and therefore that the injunction was properly granted to restrain it from doing so.

As to the second question, there is much more difficulty. Counsel say there is no direct authority on the subject. Appellant relies on holdings that where a railroad company is authorized to use either one or the other of two specified motive powers, its adoption of one is not final, and it may subsequently change to the other. This seems to be settled law. McCartney v. Chicago & E. R. Co., 112 Ill. 611; 33 Cyc. 381; Howley v. Central Valley R. Co., 213 Pa. 36 (2 L. N. S. 138); and extensive note to the latter case in L. N. S.

Appellees rely on a line of authorities holding that where a railroad company has an option as to terminals it cannot change after once exercising the option without the consent of the granting power. This also seems to be settled law. Mills v. County of St. Clair, 7 Ill. (2 Gilm.) 197; Cairo, V. & C. Ry Co. v. Woodyard, 226 Ill. 331; People ex rel. Walker v. Louisville & N. R. Co., 120 Ill. ,48. In the last cited case the Court said it was “In accordance with the ancient rule of common law, that ‘If a man once determines his election it shall be determined forever.’ ”

Appellant’s contention is that the City, in filing its bill to enjoin the change of system, is endeavoring to protect private rights, and many authorities are cited holding if a person is damaged by changes in public streets, etc., he has his remedy at law and equity will not interfere to prevent the injury by injunction, either at this instance or at the instance of the municipality. We are dealing, as said in Mills v. County of St. Clair, supra, “with a public grant to private persons, chiefly designed by the grantor for the benefit and accommodation of the public.” Appellant is given the use of the streets, and the license to carry on his business in the City, for the mutual benefit of itself and the public and a part, probably a substantial part, of the benefit to the public, contemplated was that the citizens of the City would individually at their own expense prepare to receive and use the commodity sold by appellant. In the absence of authority we are not prepared to hold that it is not within the province of the City to control appellant in its use of electric system after it has once elected to use one of two optional systems, and that part of-the public for whose benefit the license was granted has expended large sums of money to connect with that system, that would be lost if it is changed. The situation seems to be quite as analogous to that of the change of railway terminals, after an option has been once exercised, as to the change of motive power by a railroad after it has once elected between two permissible powers.

The decree is affirmed.

Affirmed.


text:
    In re Estate of Sarah M. Colton, Deceased. John B. Colton et al., Appellants, v. W. H. Coffey, Administrator, Appellee.
    Gen. Nos. 5,939, 5,955.
    1. Executors and ádministe atoes, § 559

      —jurisdiction to allow administrator compensation. The matter of an administrator’s compensation for his services is peculiarly within the province of the Prohate Court.
    2. Costs, § 52*—power of court to pass on amount of' attorneys’ fees. A court may, to some extent, exercise an independent judgment in passing on questions as to the amount of attorneys’ fees to he allowed in any given case.
    3. Executors and ádministe atoes, § 561*—amount of commissions allowable to administrator. An allowance to an administrator of $1,500 for his commissions, held to be sufficient where the personal estate amounted to $100,000, consisting principally of bonds, some tangible chattel property of small value, some rent due from real estate leases, some bank stock and some promissory notes.
    4. Executors and administrators, § 526*—what considered in aMowing administrator attorneys’ fees. Though an administrator is entitled to be reimbursed for reasonable attorneys’ fees paid for necessary services, the fact that he employed counsel to render the service that should have been performed by himself and the fact that the estate pays for his bond should be taken into account in fixing his compensation.
    5. Executors and administrators, § 526*—amount allowable to administrator for fees of couns*7 A” allowance of $2,500 to an administrator to reimburse him !,/•■ . of counsel employed, held sufficient where there was nothing It in the settlement of a personal estate amounting to abo .000.
    Appeal from the Circuit Court x county; the Hon. Harry M. Waggoner, Judge, presiding. H<. this court at the April term, 1914.,
    Reversed and remanded rections.
    Opinion filed July 31, 1914.

      Moreland & Moreland and R. D. Robinson, for appellants.
    Lawrence, Welsh & Green and F. O. McFarland, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Sarah M. Colton, an aged maiden lady, died at her home in Galesburg, Illinois, intestate in May, 1911. She left a personal estate of about $100,000, consisting principally of bonds that were on special deposit in a bank in New York City, and subject to the payment of a transfer tax. There was tangible chattel property of small value, some rent due from real estate leases, some bank stocks and some promissory notes. There was little indebtedness. Her only heirs at law were two brothers, a niece and a grandnephew, all adults and nonresidents- of this State.

Her banker, L. A. Townsend, had for some time been in charge of her business affairs, and her brothers and niece, who attended her funeral, petitioned the County Court for his appointment as administrator. He was appointed and qualified filing a bond which the petitioning heirs signed as sureties. A few days thereafter W. H. Coffey, the Public Administrator, petitioned the court to remove Townsend and for his own appointment. The heirs appeared and asked that Townsend be retained as coadministrator, receiving one-third of the commission to be allowed. This was resisted by Coffey and he was appointed sole administrator and proceeded to qualify giving a surety company bond, the cost of which was charged to the estate. Townsend filed a report showing that no assets of the estate had come to his hands, and was discharged. The administration proceeded in the ordinary way, i' ‘hiding the necessary proceedings for ■assessing and collecting the inheritance tax and paying the transfer tax on said bonds. Ancillary administration in New York was suggested by some one there, as it usually is in such cases, and was avoided, as it usually can be in an estate like this. There was some question as to local taxes, some effort to continue the household and have the administrator pay the expenses. There was also the loss of a building by fire and some question as to a land title and some collection, of rents that the administrator took some part in, though he was charged with no duty as to any matter touching the real estate except the collection of rents past due at the time of the death. Two servants of the intestate presented claims against the estate, one of which was allowed without a contest, and the other was defeated as to all. but a small amount that the heirs were willing to pay. There were two trials of this last mentioned claim, one in the County and one in the Circuit Court. One of the heirs made assignments of portions of his interest as distributee, and some annoyance and trouble was occasioned thereby. The distributees employed counsel who assisted in many matters requiring the services of a lawyer.

The administrator filed a report, which his counsel in their brief say: “Was treated at the special request, and stipulation of counsel for the heirs before the Probate Court as a final report, ’ ’ and ask us to treat it as such, which we will do. It showed the estate for the most part distributed, most of the bonds being distributed in kind, and it asks that the administrator be allowed $5,000, paid as attorneys’ fees and $6,019.06 for his commissions as administrator. The County Court on a hearing fixed the commissions at $3,364.70, and the allowance for attorneys’ fees at $3,500. The objectors (distributees) appealed to the Circuit Court, where there was another trial resulting in reducing the allowance for commissions to $1,000 and allowing the credit for attorneys’ fees at $3,500 the amount fixed by the County Court. An appeal is prosecuted by the administrator from the order of the Circuit Court fixing his commissions, and another appeal is prosecuted by the objectors from the order fixing the allowance for attorneys’ fees. Separate records have been filed here, but the same counsel are employed in both cases and cross-references are made in the arguments. We will in this opinion discuss the facts with reference to both cases.

We recognize the law several times announced by our Supreme Court, that the matter of an administrator’s compensation for his services is peculiarly within the province of the Probate Judge. Griswold v. Smith, 214 Ill. 323; and we note the case of Elder v. Whittemore, 51 Ill. App. 662, where the Appellate Court of the Third District affirmed an allowance of six per cent, commissions on a large estate, which allowance the court seems to have regarded too much, but because of the credit that should be given to the judgment of the Probate Judge did not feel warranted in reducing the amount. It is also the law that a court may, to some extent, exercise an independent judgment in passing on questions as to the amount of attorneys’ fees to be allowed in any given case. The authorities on that subject are collected and discussed in Gilbert v. Lloyd, 170 Ill. App. 436; see also Gentlemen v. Sanitary District of Chicago, 260 Ill. 317, and Reinke v. Sanitary District of Chicago, 260 Ill. 380. There are no other disputed questions of law of controlling importance in this case.

There was nothing difficult in the settlement of this estate. The securities were in excellent condition, and were such as prudent business men are accustomed to select for people unaccustomed to business, and so situated that investments may be made with security and ease of conversion the main consideration. A competent banker or business man would have easily arranged the whole matter and distributed the estate with the aid of attorneys in preparing formal papers to be filed in court, trying the litigated claims and advising about a few other matters, and could have employed competent lawyers for that service, and would have done so if it had been his own personal matter, for perhaps $500, certainly not over $1,000, and that fee would have been based more on a consideration of the amount involved than on the time and skill required. If it was necessary for this administrator to engage the services of lawyers to a much greater extent, it was because of his incapacity for work of that character, and he should not be paid for the exercise of ability he did not possess, and for that reason was compelled to employ others and pay them out of the estate funds.

An allowance of $1,500 for the administrator’s commission and $2,500 for fees paid his attorneys, added to the price paid by the estate for his bond, will make an expense of nearly five per cent, of the personal property administered in settling and distributing this estate. Were it not for the weight we are required to give the judgment of the County Court we would be disinclined to assent to that much tax on this estate. The Legislature has fixed six per cent, as the maximum commission to be allowed the personal representative in cases involving the greatest amount of judgment, skill and labor. It is true he is entitled to counsel and to be reimbursed reasonable fees paid them for necessary service; but where counsel are employed to render the service that should be performed by the administrator himself, and the estate pays for his bond, those facts should be taken into account in fixing his compensation.

Treating the report as final, and commissions and attorneys’ fees to be allowed the same as though it were a final report, and no further allowance to be made for attorneys’ fees except for services rendered after the hearing on. the report in the County Court, the judgments of the Circuit Court are reversed and the cause remanded with directions to fix the commissions of the administrator at $1,500 and his credit for attorneys’ fees at $2,500, entering the proper orders therefor and certifying them to the County Court for its action thereunder, the taxable costs in these proceedings, in this court and in the court below to be paid by the administrator in due course of administration.

Reversed and remanded with directions.


text:
    Oscar Bauwens and Theophiel Claeys, Appellees, v. Maurice Goethals, Appellant.
    Gen. No. 5,942.
    1. Damages, § 60

      —ialien evidence sufficiently certain to sustain recovery for breach of contract not to engage in business. In assumpsit for breach of a contract not to engage in a business in a certain locality within a specified time, evidence introduced by plaintiff showing that he had incurred a loss in the amount of sales and profits, that defendant had solicited trade in the neighborhood and that he was so doing business there, and that on a certain date a large percentage of defendant’s former customers who had been trading with plaintiff entered defendant’s store, held not to be of so indefinite and uncertain a character as not to sustain a verdict for substantial damages.
    2. Contracts, § 376*—when acts of breach down to time of trial admissible. In assumpsit to recover for a breach of a contract not to enter into a certain business in a specified community for a certain time, acts of the defendant in breach of the contract down to the date of the trial may be shown.
    3. Assignments, § 1*—when contract not personal. A contract to refrain from entering into competition is not personal but inures to the benefit of one to whom it is assigned.
    '4. New trial, § 67*—when juror's statement after the trial incompetent. An affidavit setting out a conversation after the trial with a juror tending to show that the jury method of reasoning in arriving at their verdict was improper, field, incompetent to support a motion for a new trial.
    5. New trial, § 67

      —when newly-discovered evidence not ground for. Upon a recovery for breach of a contract, affidavits that plaintiff had made declarations that he was not damaged, and that witnesses had been discovered by whom they could be proved, held not to warrant the granting of a new trial.
    6. Damages, g 200*-—when instruction as to damages for breach of contract not to engage in business proper. In assumpsit for breach of a contract not to engage in a certain business in a specified locality for a stated time, an instruction telling the jury that they might fix the amount of damages from all the testimony and facts and circumstances appearing in the evidence, at such sum as would compensate the plaintiffs for all the damages or loss actually suffered by them, if any, by reason of the defendant again engaging in the business, either directly or indirectly, etc., held to state the law.
    7. Appeal and error, § 1031*—when excessiveness of verdict will not be reviewed. The question whether a verdict is excessive will not be considered on review where the case is not presented and argued on that theory.
    Appeal from the Circuit Court of Rock Island county; the Hon. Robert W. Olmsted, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    J. B. & J. L. Oakleaf, for appellant.
    George W. Wood, for appellees.

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

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

This is an action in assumpsit for breach'of a contract not to engage in a certain business in a specified locality for stated time. There was a verdict and judgment of $7,500 for the plaintiffs, Oscar Bauwens and Theophiel Claeys, from which the defendant Maurice Goethals, prosecutes this appeal. The difficult question presented is as to the measure of damages, or rather the degree of certainty of evidence required as a basis on which damages may be assessed.

The facts are as follows:

Maurice Goethals, a Belgian, in February, 1910, was and for some time has been the owner of a clothing and boot and shoe business located in the city of Moline, in a neighborhood where there were about five hundred Belgian families, whose trade he had with little competition. He sold the fixtures, merchandise and good-will of the business to Oscar Bauwens and Theophiel Claeys for $7,305. The purchase price was fixed on the basis of $300 for the fixtures and 95 cents on the dollar for clothing, 100 cents for shoes and 90 cents for miscellaneous goods, ascertained by an inventory of the goods completed February 12, 1910, when appellees took possession. A writing evidencing the transaction was, in the presence of the parties, drafted by an attorney February 5, 1910, containing a stipulation that appellant would not within five years from the date thereof engage, directly or indirectly, or concern himself in carrying on the business -of selling clothing, gents furnishing goods, boots and shoes in the city of Moline, either as principal, agent or servant. This writing was not signed at the time. Appellant went to Belgium soon thereafter, and while there in July, 1910, the writing was presented to him and he signed it. He claims there was no agreement that he should not re-enter business, and that his signature to the writing was obtained by fraud, on the representation that it was for the purpose of transferring the insurance on the goods; but we are satisfied from the evidence that the agreement as stated in the contract was made and understood by him, that he signed the contract knowing its contents, and that a substantial part of the consideration for the purchase was the good-will of the business. There certainly is sufficient evidence supporting that conclusion to compel its acceptance when supported by the verdict of the jury.

Appellant returned from Belgium in the Spring of 1911, and about June 3rd a store was opened in the same neighborhood, ostensibly run by his brother, selling the same character of goods in which enterprise appellant aided and assisted, in violation of the provisions of his contract. Afterwards, December 2,1911, he moved into a new store he had been building during the summer in the same neighborhood, and openly solicited trade and sold the same character of goods. Soon thereafter this suit was brought and declaration filed December 15, 1911, setting up the contract, its violation and damages resulting therefrom. Claeys sold his interest in the business to his partner, Bauwens, in February, 1912. The case was tried in October, 1913.

Appellees introduced evidence that their sales for the first year of their business were $27,000, with a gross profit of thirty-three and one-third per cent, for the second year $12,000, and for the third year $15,000, and tending to show that their net profits for the first year were fifteen per cent, on the amount of sales, or $4,050. They proved that appellant solicited trade of the Belgians in the neighborhood, by advertisements and personal application all the time that he was so doing business there; that the two nearest stores, one eleven and the other twenty blocks away, selling the same character of goods had no appreciable Belgian trade, and that on one Saturday evening after this suit was brought, out of thirty-three customers that entered appellant’s store, twenty-two were Belgians who had been customers of appellees after they bought this store.

Appellant contends that this character of evidence is so indefinite and uncertain as to the amount of damages sustained by the violation of the contract that no verdict except for nominal damages can be based thereon. He does not argue that the verdict is excessive if it can be properly based on that character of evidence. He specifically assigns here as error that the verdict is excessive, but in his written motion for a new trial he presents the usual objections that the verdict is contrary to the evidence and contrary to law, and particularly states: 11 That there is no data in the record upon which the jury could predicate the damages awarded to the plaintiffs. That there was no evidence presented to the jury upon which they could base their verdict for damages.” And does not in terms say the verdict is excessive.

Counsel say that the question here presented has not been decided in this State by the Supreme or Appellate Court, and we know of no such decision. In Stewart v. Challacombe & Ramsey, 11 Ill. App. 379, it is said the law enables the plaintiff to recover the actual damage sustained; that the difficulty of ascertaining it has long been recognized, but that does not preclude recovery; the difficulty is in the subject about which the parties have chosen thus loosely to contract. Appellant in his brief says, quoting from Shaw v. Jones, Newton & Co., 133 Ga. 446, and a Missouri case, Sessinghaus Milling Co. v. Hanebrink, 247 Mo. 212: “Upon the" breach of a contract of sale of the good-will of a business the measure of damages is the loss suffered by the purchaser by reason of the wrongful acts of the seller constituting the breach, and in estimating such damages all the facts and circumstances tending to show the extent thereof may be considered by the jury ; but if the plaintiff fails to furnish sufficient data to enable the jury with a reasonable degree of certainty, and correctness to estimate the actual damages sustained by the purchaser, then his recovery will be restricted to nominal damages.” “Appellant will be called upon, in order to recover substantial damages, to furnish sufficient data to enable the jury with a reasonable degree of certainty and exactness to estimate the actual damages.” The Supreme Court of Louisiana in Moorman & Givens v. Perkerson, 131 La. 204, says: "The amount of damages in a case of this kind is difficult ’ of proof. As said, however, in Sutherland on Damages, vol. 3, § 658 (3d Ed.) p. 1914: ‘The uncertainty is not to work a denial of justice to a party who has been wronged; the damages must be ascertained from all the facts and circumstances as best they may.’ ” And it is said in 20 Cyc. 1282: “Upon the breach of a contract of a sale of the good-will of a business, the measure of damages is the loss suffered by the purchaser by reason of the wrongful acts of the seller, and not the profits realized by defendant as the result of his wrongful enterprise; and if plaintiff fails to furnish the data from which the court or jury can estimate his actual damages his recovery will be restricted to nominal damages. But there are cases in which it is impossible to prove the injurious consequences of each particular act; and the substantial damages should be determined by the combined result of the wrongful acts upon the business, and to this end all the facts and circumstances tending to show the extent of the injury should be considered by the court or jury in estimating the damages.” Citing Burckhardt v. Burckhardt, 42 Ohio St. 474, 51 Am. Rep. 842.

The court instructed the jury for plaintiff (the only instruction complained of): If they found for the plaintiff they might fix the amount of damages from all the tesimony and facts and circumstances appearing in evidence, at such sum as would compensate the plaintiffs for all the damages or loss actually suffered by them, if any, by reason of the defendant’s again engaging in the clothing or boot and shoe business either directly or indirectly or concerning himself in conducting or carrying on such business in the city of Moline.

This instruction seems to be in accordance with general principles that are quite well settled. The difficulty is in determining what evidence is sufficient to measure loss of profits. That courts usually refuse to compensate for loss of prospective profits is familiar law. But the rule may be different when the prospect itself is made the subject of bargain and sale. A party may not sell a prospect- for" a valuable consideration received and on breach of his contract defend on the ground that the subject-matter is of too uncertain value to permit its measurement in a court of law.

In Hitchcock v. Anthony, 83 Fed. 779, 28 C. C. A. 80, the Court speaking through Judge Burton on this question of proof of damages said: “Evidence was admitted over objection of plaintiff in error for the purpose of showing a loss of profits in Anthony’s coal business as damages resulting from the breach of this contract. This was objected to upon several grounds, namely: That such loss of profits was not the natural and proximate result of the breach complained of; that the profits of such a business as that conducted by Anthony was dependent on too many contingencies, was speculative and too uncertain to be the basis of any judgment; and, finally, that no damages except nominal damages could be recovered in a case of this kind unless they are stipulated in the contract. It has been sometimes said that the general rule is that anticipated profits cannot be a basis for recovery in any action for a breach of contract. But there is no sufficient authority for so broad a statement, for profits are always recoverable if proximate, natural, and certain. Sedg. Meas. Dam. (8th Ed.), §§ 176, 177, 192, 193.

In Brigham v. Carlisle, 78 Ala. 243, 249, Clopton, J., properly stated the principle when he said:

‘Profits are not excluded from recovery because they are profits, but, when excluded, it is on the ground that there are no criteria by which to estimate the amount with the certainty on which the adjudication of courts and the finding of juries 'should be based. ’

In Griffin v. Colver, 16 N. Y. 489, 491, Seldon, J., in discussing the supposed rule that profits were not recoverable, said:

‘It is not a primary rule, but is a mere deduction from that more general and fundamental rule which requires that the damages claimed should in all eases be shown by clear and satisfactory evidence to have been actually sustained. It is a well-established rule of the common law that the damages to be recovered for a breach of contract must be shown with certainty, and not left to speculation or conjecture; and it is under this rule that profits are excluded from the estimate of damages in such cases, and not because there is anything in their nature which should per se prevent their allowance. Profits which would certainly have been realized but for the defendant’s default are recoverable ; those which are speculative and contingent are not.’

Most frequently, profits prevented are excluded as an element of damages, because such an injury was not a normal and proximate consequence of the breach of the contract. Such was the leading case of Hadley v. Baxendale, 9 Exch. 341, where the decision was that loss of profit of a mill was not a natural consequence of a carrier’s delay in delivering machinery, the special circumstances not being communicated to the carrier. But the court in that case added that: ‘If the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendant, and thus known to both parties, the damages resulting from the breach of such a contract which they could reasonably contemplate would be the amount of injury which would ordinarily follow from a breach of contract under their special circumstances so known and communicated. ’

The general subject was considered in Howard v. Manufacturing Co., 139 U. S. 199, 206, 11 Sup. Ct. 500, and U. S. v. Behan, 110 U. S. 338, 344, 4 Sup. Ct. 81. In the latter case, Justice Bradley, on this subject of. damages for a breach including profits prevented, said:

‘Profits cannot always be recovered. • They may be too remote and speculative in their character, and therefore incapable of that clear and direct proof which the law requires. But when, in the language of Chief Justice Nelson, in the case of Masterson v. Mayor of Brooklyn, 7 Hill, 69, “they are the direct and immediate fruits of the contract,” they are free from this objection. They are then part and parcel of the contract itself, entering into and constituting a portion of its very elements,—something stipulated for, the right to the enjoyment of which is just as clear and plain as to the fulfillment of any other stipulation. ’

But in the case before us the very object of the contract which has been broken was to secure the coal business of Anthony against any loss of business and consequent profit which might result from a competitive business conducted on the dock sold by him to Hitchcock. To protect his business, and secure the possible profits resulting therefrom against competition, was the occasion of this agreement; and, if plaintiff in error has knowingly and purposely rented this dock for the purpose of enabling his lessee to carry on a competing coal business, the damages which are recoverable naturally and proximately include any gain prevented which could be certainly shown to have resulted from the competition. The evidence offered was relevant and competent. It related directly to the business conducted by Anthony both before and after the contract, and before and after its breach, and did not touch any mere collateral business or anticipated collateral profit. * * *

But it is further objected that the evidence upon which plaintiff relied to show loss of profits was vague and speculative, and did not amount to legal evidence of any loss of profits, and that the court should so have instructed the jury, having been so requested. There was evidence of the amount of coal sold by defendant in error to steamers for a series of years before and after this breach, and of a reduction in the profit per ton, caused by the lower price at which the competing dealer offered and sold coal. There was also evidence that while the demand for coal by steamers at Detour increased from year to year, as the tonnage navigating the St. 'Mary’s river increased, the value of Anthony’s business declined. This was competent evidence from which the jury might reasonably infer some damage by loss of profit. It was therefore not error to refuse an instruction limiting a recovery to nominal damages.

The question as to whether the- verdict was for too great a sum, under the evidence, is not one for our consideration, being one remediable only under a motion for a new trial.”

We have quoted at length from that opinion because it clearly expresses what seems to us the correct view •of the law. The case of Salinger v. Salinger, 69 N. H. 596, is to the effect that the plaintiff may recover for loss of profits during the stipulated term, and for diminution in value of the good-will at the end of the term. In Sessinghaus Milling Co. v. Hanebrink, 247 Mo. 212, the Missouri case decided in 1912, before referred to, authorities are collected holding that goodwill is a species of property, a thing of value which may be bought and sold, and property which the law protects. And in speaking of The difficulty in making proof of damages the Court says, quoting from Sutherland on Damages, vol. 3, sec. 658 (3d Ed.): “His (de- _ fendant) is the loss which may arise from the uncertainty pertaining to the nature of it and the difficulty of accurately estimating the results of his own wrongful act.”

It is objected that the court allowed evidence of the acts of defendant in breach of the contract down to the date of the trial. Counsel also suggest that Claeys having sold his interest in the business in February, 1912 (after the suit was brought), that fact may have some bearing on the admission of such evidence. The law seems to be settled that an agreement to refrain from entering into competition is not personal but inures to the benefit of one to whom it is assigned. It is so held and the authorities collected in Knowles v. Jones (Ala.), 62 So. 514. Damages may be shown occurring after the commencement of the suit to show more clearly the gains prevented. Sutherland on Damages, vol. 3 (3d Ed.), p. 1917; Hercules Coal & Mining Co. v. Central Investment Co., 98 Ill. App. 427; Mount Hope Cemetery Ass’n v. Weidenmann, 139 Ill. 67. The fact that the vendor, plaintiff, had disposed of his interest in the business was held no defense in Boyce v. Watson, 52 Ill. App. 361. •

Appellant supports his motion for a new trial by several affidavits, one of which sets out a conversation after the trial with a juror, in which it was learned that the jury’s method of reasoning in arriving at their verdict was improper. This was clearly incompetent. Other affidavits supported the claim that declarations of appellees, tending to show that they were not damaged by the competition complained of, had been made and witnesses discovered, by whom they could be proved. We see nothing in these affidavits warranting the granting of a new trial.

It is true the damages awarded are large compared with the purchase price of the property; but the purchase price is not the criterion. Large damages may result from breach of contract to do or not do something for a small consideration. As we have before said, the case is not presented and argued on the theory that the verdict is excessive, but on the theory that no substantial verdict can rest on the charaeer of evidence introduced. Holding that a substantial verdict may be supported on that, character of evidence and perceiving no substantial error in the record, the judgment is affirmed.

Affirmed.


text:
    Camille F. Ribordy, Appellant, v. Commissioners of Drainage District No. 3, Town of Montmorency, Appellees
    Gen. No. 5,950.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Bill by Camille F. Bibordy against Commissioners of Drainage District No. 3 to recover back money paid by complainant to the district on a void drainage assessment. The prayer of the bill was that defendant be restrained from expending any moneys paid into the treasury by the complainant for the purpose of paying any costs or expenses attendant upon the levy and collection of the assessment and proceedings preliminary thereto, and that it be required to pay complainant the full amount of the assessment paid by him, or if they have expended any of said moneys and therefore can repay the whole of said sum that they be decreed to pay such portion of said sum as they have in the treasury and levy an assessment to make up the deficiency and on its collection pay the same to the complainant. A decree was entered ordering the defendants to return to complainant $178.91 of the money so paid by him and retain the balance. The complainant failing to obtain all the relief prayed, appeals.
    The complainant at the time of the levy and collection of the assessment was treasurer and the assessment on his own land he paid to himself as treasurer, but prior to the filing of his bill he had ceased to be treasurer and had turned over to his successor in office the moneys collected on the assessment.

      Abstract of the Decision.
    1. Drainage, § 164

      —right to recover hack money paid under void assessment. Where a treasurer of a farm drainage district paid to himself as treasurer a void assessment on his land, and the greater part of the sums collected on such assessment was paid out for the cost of making and collecting the assessment, held on a bill filed by him after he had ceased to be treasurer and had turned over the money in his hands to his successor that he was not entitled to his full proportionate share of the money left in the treasury as against persons who had unpaid just claims in the creation of which he was an active participant.
    2. Drainage, § 128*—power of commissioners to levy assessments. Drainage commissioners cannot create a debt and then levy an assessment to pay it.
    3. Drainage, § 128*—when drainage commissioners cannot he required to levy assessment to refund void taxes paid. Where ■ a landowner has paid a void drainage assessment and a portion of the funds paid has been expended in paying the cost of making and collecting the assessment, he is not entitled on bill filed to recover back the money paid to a decree requiring the drainage commissioners to- levy ah assessment to make up the deficiency.
    Part of the landowners refused to make payments under the assessments and were returned delinquent, and on application for judgments objections to the assessments were stricken and judgment entered as applied for. The objectors appealed from the judgment to the Supreme Court and the judgment was reversed and the cause remanded in People ex rel. Vaughn v. Welch, 252 Ill. 167. No further effort was made to collect the assessment.
    Henry C. Ward, for appellant.
    Carl E. Sheldon, for appellees.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    Elias B. Anderson, Appellant, v. William P. Benson et al., Applelees.
    Gen. No. 5,953.
    (Not to fee reported in full.)
    Appeal from the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Suit in equity by Elias B. Anderson against William P. Benson, Louis A. Bittorf and Herman V. Bittorf to compel an accounting of profits made by defendants in manufacturing “Big Four Barn Door Hangers,” a patented article, which complainant alleged he invented and furnished a sketch of to defendants about ten years before this suit was begun, and that defendants then promised if they could make use of the invention they would do so and inform complainant and pay him what it was reasonably worth. It was also alleged that defendants immediately began and have since continued the manufacture and sale of said article in large quantities and sold it extensively; that they obtained a patent therefor as the invention of one of the defendants and that complainant did not learn of such manufacture and sale until just before filing his bill. The answer denied the allegations that complainant was inventor of the article, denied any contract with him in relation thereto, and claimed it was an.invention of one of the defendants. The cause was referred to a master who reported a finding that complainant had failed to establish his case by a preponderance of the evidence. The chancellor approved the master’s report and dismissed the bill. From the decree, complainant appeals.
    A. A. Wolfersperger, for appellant.
    Henry C. Ward, for appellees.

      Abstract of the Decision.
    1. Patents, § 21*—when finding as to arrangement for use of an invention sustained by the evidence. On bill to compel an accounting of profits made in manufacturing and selling a patented article which complainant alleged that he invented and furnished a sketch of to the defendants about ten years before the bill was filed, and that defendants had promised if they could make use of the invention they would so inform the complainant and pay him what it was reasonably worth, a finding of facts by the master approved by the chancellor that complainant had failed to establish by a preponderance of the evidence his alleged arrangements with defendants, held sustained by the evidence.
    2. Appeal and error, § 1399*—when finding of facts by master conclusive. A finding of facts by the master approved by the chancellor is conclusive upon appellant and supports the action of the court in dismissing his bill, unless the Appellate Court can say that the decree was clearly and palpably contrary' to the weight of the evidence.
    3. Patents, § 21*—evidence tending to show laches. On bill to compel an accounting for the profits derived from the manufacture, and sale of a patented article which complainant- alleged he invented and of which he alleged he furnished defendants a sketch about ten years before filing the bill, under an arrangement that defendants were to pay for it in case they made use of it, held that evidence to the effect that the article had been in use for several years ■where complainant must have repeatedly seen it, and allegations of complainant’s bill that it was extensively manufactured and sold by defendants, were considerations not only tending to support a defense of laches but also to impeach complainant’s testimony that he was author of the invention and had not before asserted his rights because he did not know of its use.
   Mr. Presiding Justice Carnes

delivered the opinion of the court.


text:
    Orin Sherman, Appellee, v. Simeon P. Ash, Appellant.
    Gen. No. 5,957.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Appeax and eerob, § 1016

      —necessity of certificate of what instructions were offered, given or refused. Errors in instructions cannot be considered, where there is no certificate of the court that any instructions were offered, given or refused, though several instructions are copied in the record.
    Appeal from the Circuit Court of Stark county; the Hon. John ' M. Nibhaus, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed July 31, 1914.
    Statement of the Case.
    Action Tby Orin Sherman against Simeon P. Ash for slander. The declaration alleged words spoken by defendant amounting to a charge of larceny. Defendant filed a plea of not guilty and there was a jury trial resulting in a judgment against him for five hundred dollars from which he appeals.
    The errors relied on for reversal are: That there is no evidence of the slanderous words charged in the declaration; that the verdict is against the weight of the evidence; that the court erred in permitting evidence of slanderous words spoken by defendant other than those charged in the declaration; and that the jury did not follow the instructions of the court.
    Allen P. Miller and John Dailey, for appellant.
    James H. Rennick, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

2. Appeal and ebbob, § 1003*—necessity of certificate that bill of exceptions contains all the evidence. In the absence of a certificate of the court that the bill of exceptions contains all the evidence, a reviewing court will not examine the record to determine whether the evidence there shown sustains the verdict.

3. Libel and slander, § 175*—when admission of proof of words not alleged harmless. In an action for slander, admitting proof of words spoken by defendant other than those laid in the declaration, held not error if there was evidence otherwise of the speaking of the words charged.