text:
    Elbert C. Wicks, Appellee, v. Cyrus D. Wheeler, Appellant.
    Gen. No. 4,901.
    1. Assumpsit—when does not He. Assumpsit does not lie in the absence of an express or implied promise.
    2. Assumpsit—what does not toaive question of impropriety of action. No estoppel to urge that the action of assumpsit was the inappropriate remedy arises by virtue of procuring the court to give instructions submitting questions of fact to the jury, after the court has ruled upon the propriety of the action.
    3. Landlord and tenant—when former cannot recover of purchaser of crop. In the absence of a promise upon the part of a purchaser to pay the rent out of the proceeds of the crop purchased, a landlord has no cause of action against such purchaser unless the landlord has perfected a lien by distress or unless some act of fraud has been perpetrated by such purchaser which impaired or destroyed the landlord’s security for the rent.
    4. Evidence—what does not cure error in admitting erroneous. The exclusion of erroneous evidence after it has been admitted and heard by the jury does not necessarily cure the error in the admission; especially is this true where the excluded evidence was improperly commented upon in argument to the jury.
    5. Arguments op counsel—what improper. It is improper for an attorney to comment upon evidence which has been excluded by the court.
    6. Attorney and client—propriety of former becoming witness. It is professionally improper for counsel in a cause to testify therein. If counsel becomes a witness the proper course is for him to withdraw from the cause as attorney.
    Assumpsit. Appeal from the Circuit Court of La Salle County; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    McDougall & Chapman, for appellant.
    Butters, Armstrong & Ferguson, for appellee; James F. McCormick, of counsel.
   Mr. Presiding Justice Willis

delivered the opinion of the court

Cyrus D. Wheeler, appellant, operated a grain elevator and entered into a contract with one Sampson, a tenant on a farm owned by Albert C. Wicks, appellee, to purchase 2,000 bushels of corn at .51 per bushel. The tenant delivered 780 bushels and then sold the rest to some one else, got the money and left the country. Wicks brought this suit in assumpsit, against Wheeler in the Circuit Court of LaSalle county, to collect $330 of unpaid rent, and filed a declaration containing the consolidated common counts in assumpsit. Appellant interposed the plea of the general issue. There was a trial and a verdict for appellee for $330, motion for a new trial overruled, judgment on the verdict and this appeal.

It is urged that a recovery cannot be maintained in assumpsit. With this we are in accord, unless appellant promised to keep appellee’s rent out of the purchase price of the corn. Assumpsit will not lie for recovery in the absence of an express or implied promise, because the landlord had no right of property or right of possession in the crop except by levying a distress warrant. Watt v. Schofield, 76 Ill., 261. In the absence of a promise, the landlord’s cause of action against a purchaser of the crop from a tenant rests only on some fraudulent act of such purchaser the results of which impair or destroy the landlord’s security for the rent, and in that event his redress is in an action on the case for the tort. Finney v. Harding, 136 Ill., 573. It is urged that the landlord may waive the tort and sue in assumpsit and recover. We doubt the soundness of this suggestion for the reason that when the landlord waives the supposed tort of the elevator man in purchasing the corn of his tenant, he waives all the claim he has against him, except to seize the corn by distress warrant if he can find and identify it (unless he has, as before stated, a promise for which he waives his right under the distress proceeding).

It is argued that if assumpsit did not ordinarily lie, appellant by procuring the court to give instructions submitting questions of fact to the jury, is estopped from now arguing that assumpsit cannot be maintained, and is estopped from saying that the evidence does not tend to support the allegations of the declaration. This position is not in our opinion tenable. He had the right to try his case on such theory as the court ruled proper, and was not obliged to abandon the defense because he may then have thought the court’s view of the law incorrect. Appellee was acting on his own volition. Appellant was doing only what he was compelled to do under the ruling of the court.

Appellee testified to a direct promise by appellant to keep out his rent from the purchase price of the corn, and proved that appellant bought 789 bushels of corn of his tenant, which at the contract price amounted to $402.39. If such promise was made, and appellee thereby waived his right to reduce the corn to his possession by distress proceedings under the statute, then he is entitled to recover in this proceeding. Appellee did not see appellant, but testified to several conversations with him over the telephone, in one of which he told appellant there was $330 rent due and to be sure to hold it for him, and in another of which appellant told him he had $233 or thereabouts for him. Appellant denied that he had any conversation with appellee until several months after the corn was sold and delivered, and denied any such conversation as appellee testified to. These are the only competent witnesses on the subject of the conversations.

Over the objection of appellant, the wife of appellee was permitted to testify to a conversation she had with appellant over the telephone, in which he stated that he had $233 for Mr. Wicks on account of the corn hauled by his tenant. Afterwards, the wife’s testimony was excluded, but we doubt if its effect could be removed from the minds of the jury as corroborating appellee’s testimony.

One of appellee’s attorneys testified he called on appellant and had a conversation with him, and that in such conversation appellant stated that the only reason he would not pay the rent was that no written notice had been served on him. This appellant denied. If true, it does not tend to corroborate appellee’s proof that there was a promise to keep out the money for the rent.

In the closing argument to the jury, appellee’s attorney who had testified in the case called the attention of the jury to the testimony of the wife that had been excluded. This reference by counsel to evidence excluded from the consideration of the jury was improper and was calculated again to call the attention of the jury to the fact that the wife had corroborated her husband. The trial court in what it said undoubtedly intended to indicate that the reference was improper, but did not explicitly so announce to the jury. This attorney brought the suit, testified to an alleged conversation he supposed would help procure a verdict, argued the facts to the jury, necessarily including his own testimony, and commented on evidence that had been excluded from the record. Of this counsel for appellant complain.

While it is true there is no law in this State, statutory or otherwise, forbidding an attorney to be a witness and at the same time an attorney in the case, the practice has generally been condemned by the courts as one of doubtful professional propriety and one which should be discountenanced. In Morgan v. Roberts, 38 Ill., 65, the court said, “We are not advised it is contrary to any statute, or to any maxim of the common law, to make the attorney in a case a witness in the case he is managing. This is a matter which appeals to the professional pride of an attorney, and his sense of his true position and duty.” Frear v. Drinker, 8 Penn. St, 521. All the court can do is to discountenance the practice, and when the evidence is indispensable, to recommend to the counsel to withdraw from the case. In Ross v. Demoss, 45 Ill., 447, the court said, “It is of doubtful professional propriety for an attorney to become a witness for his client without first entirely withdrawing from further connection with the case, and an attorney occupying the attitude of both witness and attorney for his client subjects his testimony to criticism, if not suspicion.” The cases above cited with others of like import were approved in Wilkinson v. The People, 226 Ill, 149, and the Wilkinson case was approved in Chicago Union Traction Company v. Ertrachter, 228 Ill., 114, and the practice of attorneys testifying in cases in which they appear again condemned in emphatic language.

Our conclusion is that under this declaration there can only be a recovery upon a promise either express or implied made from appellant to appellee that he would keep out sufficient of the purchase money of the corn to pay the rent, and that the competent evidence in the record is so nearly balanced on that subject that the improper testimony of appellee’s wife and the improper use made of it by counsel in his argument, may very likely have turned the scale in favor of appellee upon whom the burden of proof rested.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Willis

license: Public Domain

text:
    Casper Plock, Appellee, v. Henry M. Plock et al., Appellants.
    Gen. No. 4,903.
    1. Statute of limitations—when 20-year provision begins to run against landlord. The 20-year provision of the statute commences to run in favor of a tenant and against the landlord where the former refuses to attorn or to pay for the premises in question.
    2. Statute of limitations—what evidence competent to establish bar of 20-year provision. Held, that certain deeds, a mortgage, a release and certain oral testimony were competent to show the running of the 20-year provision of the statute in favor of a tenant against a landlord.
    Forcible detainer. Appeal from the Circuit Court of Carroll County; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    George L. Hoffman, for appellauts.
    O. W. Hidklekauff and II. B. -Witte, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court

This is an action in forcible detainer, brought by Casper Plock, appellee, before a justice of the peace of Carroll county, against Henry II. Plock and Lewis Stengel, appellants, to recover possession of certain farm lands. Appellee obtained judgment before the justice of the peace and appellants appealed to the Circuit Court of said county, where there was a verdict and a judgment in favor of appellee, and appellants prosecute this further appeal.

The evidence shows that in the year 1861, appellee became the owner of an 80-acre tract of land, described as part of lot 3, S. W. ½, section 16, T. 24, N. R. 7, E. 4 P. M., Carroll county, Illinois, 65 acres of which are involved in this proceeding. In the year 1882, for the consideration of a share of the crop, appellee by a verbal contract leased for one year 65 of the 80 acres to his son Henry M. Plock, one of the appellants. Upon the 15 acres not leased were the dwelling house and bams and other out-buildings which have since been in the possession of and occupied by appellee. During the term of the lease and at times since, appellant Plock has used in company with appellee some of the outbuildings on the 15 acres, and at times appellee pastured some of his stock on the 65 acres. It further appears from the evidence that ever since the year 1883, appellant Plock paid no rent and denied all right of appellee in and to the 65 acres. In the year 1906, appellant Plock leased the land to appellant Lewis Stengel. This suit was commenced in 1907.

On the trial below, appellants asked the court to give the following instruction: “The court instructs the jury that if they believe from the evidence that the defendant Henry M. Plock was in open, continuous, adverse and uninterrupted possession of the premises in question under claim of ownership for twenty years or more prior to the commencement of this suit, then you must find for the defendant.” This instruction the court refused. The theory upon which appellee attempts to justify the refusal of the instruction is that appellant Henry M. Block, having been a tenant of appellee in 1882, was under the continuous duty to deliver the possession back to appellee, his landlord, and that no Statute of Limitations ran against his performance of that duty, but that he continued a tenant under such renting, notwithstanding he had paid no rent since 1882, and denied that he held the possession under the lease of 1882.

We are of the opinion that this position is not tenable and hold that where a tenant denies his landlord’s right of possession, and refused to attorn or pay rent for the premises, a cause of action then accrues to the landlord, and the Statute of Limitations then begins to ran.

Appellants offered to show that in 1871 appellee conveyed by special warranty deed, his wife not joining therein, the 80 acres of which the 65 acres in controversy are a part, to one Lizzie Eoickle, a daughter of appellee’s wife by a former husband and a half-sister of appellant Block, the deed for which was duly recorded; and that in October, 1882, and after making the verbal lease for the rental of the 65 acres, appellee was unwilling that Lizzie Eoickle would retain the title, and urged appellant Block to buy the land from her, and that he was present- at conversations with her and helped to procure her consent to sell the property to appellant Block; and that on October 27, 1882, appellant Block bought the 80 acres from her and received a deed therefor for a consideration of $2,500 and the assumption of a-mortgage thereon for $1,300, which he afterwards paid; that after appellant received the deed of Lizzie Eoickle of the 80 acres, appellee and appellant Block agreed that appellee should occupy the 15 acres upon which the house and barns were situated; and that appellant should occupy the 65 acres in controversy, and that in 1890, appellant Block gave appellee a mortgage on the 80 acres to secure a debt of $2,000; and that in 1901 such mortgage was duly released by appellee. The court, on objection of appellee, refused to admit any of the testimony except a part of that not contained in the written documents, and excluded such as was admitted.

We are of the opinion that the deeds, mortgage, release and the oral testimony relative to the arrangement about the occupation of different parts of the 80 acres, was competent evidence as strongly tending to show that after appellant Flock, at appellee’s request, obtained the deed from Lizzie Eoickle, and they divided the 80 acres between them, appellee retaining the 15 acres with the buildings and appellant Flock the 65 acres, the relation of landlord and tenant terminated, and appellant was excused from attorning to appellee, and appellee recognized appellant Flock as the owner of the 65 acres.

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

Reversed and remanded.


text:
    Seth Pettit, Appellant, v. Michael Burke et al., Appellees.
    Gen. No. 4,908.
    1. -Justices and constables act—section B construed. The praying of an appeal on the day of judgment within the meaning of this statute is not made by entering into an arrangement with the justice that in the event of an adverse verdict and judgment an appeal shall be entered.
    2. Appeals and errors—what not equivalent to prayer for appeal. An arrangement with a justice of the peace by which a prayer for an appeal is to be entered in the event of an adverse judgment, does not satisfy the statute and is not a legal praying of an appeal where no entry of appeal is made.
    3. Justice of the peace—when loses jurisdiction. After a justice of the peace has written up his judgment and signed it his jurisdiction over the case is ended and he has no power or authority to open and amend it, neither has the Circuit Court authority to compel a justice to amend his docket nor any right to permit him so to do.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.

      E. A. Wooley and S. E. Kenworthy, for appellant.
    Sweeney & Walker, for appellees.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

Michael Burke sued Charles Pettit before a justice of the peace and recovered a judgment, upon which an execution issued to one S. W. Bruner, a constable, who levied the execution upon certain property. Seth Pettit, appellant here, served notice upon Bruner that he owned the property levied on. ETotice was given of the day set for the trial of the right of property. The venue was changed to another justice, and a trial was had resulting in a verdict and a judgment against the claimant.' Instead of finding the right of property in Bruner, the constable, they found it in Burke, the execution creditor. The judgment was in that particular irregular, but the irregularity is of no material importance here. The verdict was returned and judgment entered June 22, 1906. On June 26, 1906, the fourth day thereafter, Seth Pettit presented an appeal bond to the clerk of the Circuit Court of Eock Island county, which was approved and a supersedeas issued to the justice and constable, reciting that an appeal had been taken from such judgment to the Circuit Court of Rock Island county, and commanding that further proceedings be suspended until the further order of the court. A transcript of the proceedings before the justice was filed with the circuit clerk on July 7, 1906. On September 19, 1906, Burke, the execution creditor, and Bruner, the constable, appeared specially and moved the court to dismiss the appeal for the reason that the court was without jurisdiction, except to dismiss the appeal, and that no appeal was prayed before the justice on the day the judgment was entered. On the first day of February, 1907, appellant moved the court for leave to the justice to amend the transcript to correspond with certain alleged facts and to show that an appeal was prayed for on the day judgment was entered. On February 11, 1907, there was a hearing of the motions upon proof by affidavits. The court denied appellant’s cross motion for leave to the justice to amend the transcript, granted the motion to dismiss the appeal, and ordered the appeal dismissed with a writ of procedendo, and that appellee recover his costs. Exceptions were preserved, a bill of exceptions taken and Seth Pettit prosecutes this appeal.

Section 5 of article 13 of chapter 79, Hurd’s Statutes, 1905, provides that in the trial of the right of property contemplated by other sections of said article, “An appeal may be taken as in other cases, provided the same is prayed on the day judgment is entered, and the bond shall be given within five days from the time of entering the judgment.”

From the proofs it appears that the case was submitted to the jury on June 20, and their verdict returned June 22, two days later. Appellant’s attorney lived in another county, and on the evening of the day the jury retired to consider their verdict, stated to the justice, that if the verdict was against him, meaning of course against appellant, he wanted an appeal, and the justice agreed to write up the docket showing an appeal prayed for by him.

Appellant’s contention is that this arrangement between his attorney and the justice is the equivalent of praying an appeal on the day of entering judgment. With this we cannot agree, as we conclude that praying an appeal two days or any other period of time before the day judgment was rendered, and at a time when the party so attempting to pray an appeal had no knowledge whether the verdict and judgment thereon would be favorable or adverse to his interest, was not praying an appeal within the requirements of the statute, and that the justice had no authority to make a contract to enter a prayer for an appeal if the verdict and judgment should be against the party so attempting to contract. All that was said on that subject by appellant’s attorney and the justice had no tendency to create a prayer for an appeal.

The justice made an affidavit for each side. For appellees he stated that the jury returned their verdict on June 22, 1906, upon which he entered judgment against Seth Pettit, and that at no time on said day did Seth Pettit or any one for him pray an appeal, and that nothing was said to him about an appeal until June 25. For appellants he stated, in addition to the conversation he had with appellant’s attorney relative to the prayer for an appeal, that Charles Pettit, the execution debtor, on the 22nd of June, 1906, within 24 hours of the rendering of judgment, presented an appeal bond which he refused to accept on the ground that he was advised the judgment was not appealable. This affidavit did not state whether this was before or after the entering of judgment. The language is so peculiarly worded that it may be that this appearance and presentation of bond by Charles Pettit was on the 22nd of June before the jury returned their verdict. With this uncertainty, it would not be a valid prayer for an appeal. Furthermore, Charles Pettit was nof entitled to an appeal. The jury in legal effect found .it was his property, but if he had been interested and entitled to appeal, this was a separate matter, and the fact that Charles Pettit prayed an appeal on the day of judgment and in compliance with the statute, if such a construction might be put upon what he did, did not tend to show that an appeal was prayed by Seth Pettit. If Charles Pettit had brought a bond to the justice executed by Seth Pettit as principal, praying an appeal from the judgment, and had presented the same to the justice on the 22nd day of June, 1906, or the day the jury returned their verdict, after judgment, that would have been a valid prayer and within the requirements of the statute, and it would have been the duty of the justice to have entered it and granted an appeal. Had this been done, Seth Pettit would not have lost his right to an appeal because the justice refused to enter the prayer for an appeal.

After a justice of the peace has written up his judgment and signed it, his jurisdiction over the cause is ended, and he has no power or authority to open and amend it; neither has the Circuit Court the authority to compel a justice to amend his docket, nor any right to permit him to do so.

The affidavit relied on by appellant does not state .that the bond presented by Charles Pettit was a bond in which Seth Pettit sought an appeal or that it was a bond in which he was the principal. But had it shown these things, still the justice having failed to note the fact and approve the bond, the appeal was lost by reason of the justice’s misconception of the law. The remedy would not he by an effort to have the justice amend the orders appearing on his docket.

If Seth Pettit had filed a bond within five days of the day of judgment and the court had been satisfied that an appeal was actually prayed on the day of judgment, then it should have refused to dismiss the appeal, hut no such case was made by Seth Pettit and he cannot be heard to complain of the result of his own laches.

There was no error in dismissing the appeal and the judgment is affirmed.

Affirmed.


text:
    Lizzie M. Slagle, Administratrix, Appellee, v. Village of Averyville, Appellant.
    Gen. No. 4,923.
    Master and servant—limitations of rule requiring former to furnish safe place to work. It is a general rule that a master must exercise reasonable care to furnish, a reasonably safe place for his servant to work, but that rule is subject to limitations and exceptions. One exception universally recognized is that the general rule does not apply where the conditions are changing from time to time in the prosecution of the work.
    Action on the case. Appeal" from the Circuit Court of Peoria County; the Hon. Theodore N. Green, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed March 11, 1908.
    Jos. A. Weil, A. Jacobson and Irwin L. Fuller, for appellee.
    Jos. Wiliielm and Quinn, Quinn & Otman, for appellant.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This was an action on the case brought by appellee, Lizzie L. Slagle, administratrix of the estate of Philip R. Slagle, deceased, in the Circuit Court of Peoria county, against appellant, the Village of Averyville, to recover damages resulting from the death of said. Slagle while shoveling gravel in a pit owned and operated by appellant. Appellee filed a declaration containing two counts which in substance averred that, on September 4, 1906, and theretofore, appellant owned, operated and controlled a certain gravel bank or pit, and that it had negligently permitted the gravel in said pit to be so excavated as to cause a large amount of heavy gravel to-be left overhanging the topmost edges thereof and caused gravel to be negligently excavated without properly supporting the overhanging gravel upon the top edges of said bank, and that deceased, while working on said day in said gravel pit under the direction of appellant’s servant, and with due care for his own safety, without knowledge of, and without reasonable opportunity to judge of the dangerous condition of said gravel pit, and without reasonable opportunity to escape, was killed by the caving in or falling down of said overhanging ledge of said bank. A demurrer to the declaration was interposed and overruled. A pica of not guilty was filed. There was a trial and a verdict for appellee for $4,000. A motion for a new trial was denied, judgment was entered on the verdict, and this appeal was taken.

The evidence shows that the gravel pit where the accident happened was one which had not been worked since the middle of the preceding June, at which time deceased, a man of ordinary intelligence, mature years and good eyesight, had been employed in it for a day and a half. The bank, at the point of the accident, was about 9 feet high. The pit was semicircular in form and about 16 feet long. Its different strata of earth were, at the top, a coat of dark sand, gravel and black soil, 3 or 4 inches in thickness; next, a red clay mixed with gravel and sand 18 to 20 inches in thickness. Below that was a finer light sand, and below that, at the bottom of the pit, was coarse gravel. At 8 o’clock a. m., September 4, 1906, the day of the accident, the men were taken to the bank by one John Melzer, appellant’s superintendent of streets, and told to go to work, but to be careful not to dig under the bank. He remained for a time, and then went away and did not return until after the accident. The men were provided with shovels, a pick and an iron bar, and placed themselves and worked as suited their convenience. They used the pick or iron bar to loosen or pick the top coat of heavy soil and carry down the sides of the bank together with the gravel and other material into the bottom of the pit, from which place it was shoveled into wagons. The finer sand, immediately under the top coat of heavy soil and gravel, was loose and required but little effort to bring it down, leaving the top overhanging ledgelike until it v?as picked or pried off by some of the men. When the men commenced 'work on that morning there was an overhanging ledge of the top stratum from 6 inches to a foot wide. Twelve wagon loads of the contents of the pit had been shoveled into wagons and drawn away before the accident. At about 11 o’clock, while deceased with two other shovelers and a teamster were loading another wagon, the overhanging ledge gave way, and with the top of the bank settled, and fell in upon deceased, killing him.

At the close of plaintiff’s evidence in chief, and again at the close of all the evidence, appellant asked the court to instruct the jury to return a verdict of not guilty and tendered instructions to that effect, which were refused, and the refusal is assigned for error. In consideration of that assignment, the testimony favorable to appellee is to be taken as true and if such evidence fairly tended to prove any wrong or neglect of duty on the part of appellant, the court was right in refusing to give the instructions. On the other hand, if the appellant was not at fault in any way and did not fail in the performance of any duty which it owed deceased, it cannot be held liable for the resulting damages merely because it employed deceased to work in the pit, however unfortunate the accident to deceased may have been or however great the loss or damage to his next of kin.

It will be seen that there is no evidence tending to prove appellant did not properly support the overhanging edges of the pit. It neither directed nor controlled the way in which the gravel was excavated, which was under the control of deceased and his fellow-servants who were shoveling the gravel from the pit into the wagon, and it did not fail in the performance of any duty to warn the plaintiff of the dangers incident to undermining the bank by shoveling gravel from underneath the overhanging ledge.

In the case of the Village of Montgomery v. Robertson, 229 Ill., 466, which was a case where the plaintiff was injured while shoveling loose gravel from the bottom of a pit into a wagon, by the gravel caving in and catching him between the reach of the wagon and the bank, the court said: “Whether a laborer has ever shoveled gravel or not is wholly immaterial on the question of the duty of the master to explain dangers and warn a servant against them. It requires no experience in a person of ordinary intelligence to understand the danger of shoveling loose gravel from the bottom of a bank. The plaintiff could not plead ignorance of the law of gravitation, and if he was, in fact, ignorant of the probable consequences of removing gravel and depriving the upper soil of its support, the defendant would have no reason to presume such ignorance or that he needed instruction on that subject. Any one who hires a laborer rightfully presumes that he understands the laws of nature, which operate with uniformity, and there is no duty to warn of dangers which are patent to ordinary intelligence. (C. & A. Ry. Co. v. Bell, 209 Ill., 25.)” It is a general rule that a master must exercise reasonable care to furnish a reasonably safe place for his seiwant to work, but that rule is subject to limitations and exceptions. One exception universally recognized is that the general rule does not apply where the conditions are changing from time to time in the prosecution of the work. If the nature of the work is such as to produce changes and temporary conditions in the place where the work is performed, the rule does not require the master to keep the place reasonably safe under such changed conditions which the work renders necessary. Thompson on Negligence, 3876. Village of Montgomery v. Robertson, supra. In such case the master does not make or create the place or conditions, but they are created by the progress of the work and the workmen engaged in it. In this case, the evidence shows the removal of the gravel from underneath the overhanging ledge created the attendant dangers, and while appellant might become liable for an injury on account of some other fault or neglect, it would not be made liable under the rule here invoked. A master cannot be held to make a gravel pit safe for employees from moment to moment, when the natural support of the bank is being constantly removed, and where the changing conditions must be watched and provided against by the laborers themselves. Village of Montgomery v. Robertson, supra.

Counsel for appellee, in support of the ruling of the trial court in refusing to direct a verdict, cite and rely on Cobb Chocolate Company v. Knudson, 207 Ill., 468, and C. & E. I. R. R. Co. v. Knapp, 176 Ill., 128. In the Cobb Chocolate Company case, the plaintiff’s hand was injured in a machine composed of rollers. He was wiping the machine with waste under the immediate direction of a foreman, and while so engaged the waste caught and drew his hand into the rollers. The question was whether plaintiff acted recklessly or as a reasonably prudent person would have acted, under the circumstances, and the court held that that was a question of fact to be decided by the jury. In this case there was no machinery to avoid, nor any order of the foreman. He was not present, and had not been since he put the men to work in the morning. In the C. & E. I. R. R. Co. case, plaintiff was a freight conductor whose duty it was to inspect the train before starting. While making the inspection, he noticed a coupling pin not exactly in place. The cause of this condition he could not tell without examination. He stepped between the cars for this purpose and took hold of the pin. At that moment the train moved back and the draw bar pushed back under the car so as to cause the pin head to strike the dead wood at the end of the car and crush plaintiff’s hand. The negligence charged there was, that. the draw bar was not reasonably safe and properly equipped. There it was insisted that the danger being known and obvious, and the plaintiff having voluntarily occurred it, could not recover. The court said that notwithstanding the obvious conditions referred to, had the car been equipped with other usual appliances, plaintiff’s act would not necessarily have been dangerous, and held that the trial court did not err in refusing to direct a verdict. In neither of these cases was the servant engaged in service where he could control surroundings. In this case, deceased could have taken down the overhanging ledge and kept from under it.

We cannot find in the record in this case any evidence fairly tending to prove the cause of action, or which standing alone and admitted to be true, was sufficient to sustain the verdict. We are of the opinion that the court erred in refusing to give the instructions directing a verdict.

The judgment is reversed.

Reversed, with finding of facts.

Finding of facts, to be incorporated in the judgment of the court: The death of Slagle was caused by the caving in of the gravel pit or bank in which he was working. The danger or risk pf working there was assumed by him, and appellant is not liable therefor.


author: Mr. Justice Dibell,

text:
    Nelson A. Steele, Defendant in Error, v. George P. Wynn et al., Plaintiffs in Error.
    Gen. No. 4,790.
    1. Equity pleading—duty of court upon conservator’s failure to answer. When the conservator of an insane defendant fails to file an answer for him, it is the duty of the court to appoint a conservator or guardian ad litem to answer and to protect his interests.

      2. Equity pleading—effect of immaterial issue. Where an immaterial issue has been joined in equity, the court will disregard it.
    3. Equity practice—when error to enter default. It is error to enter the default of an insane defendant for want of an answer, but error in entering such default becomes harmless where on review it is made to appear that such insane person has interest in the subject-matter of the litigation and had none at the time of the filing of the bill.
    4. Service op process—when certificate of publication sufficient. Held, that the following certificate, aided by other matters appearing of record, was not vulnerable either to the attack that it did not sufficiently appear that the newspaper was secular arid of general circulation, or to the contention that it did not show that the first publication of notice was made at least thirty days before the term, or that it did not give the dates of the first and last papers containing the notice.
    “a newspaper printed and published at Waukegan, in the county of Lake and State of Illinois, and that the annexed notice was published once in each week for four weeks successively in said paper, the first publication of which said notice was dated the 25th day of January, A. D. 1902, and the last publication thereof was dated the 15th day of February, A. D. 1902.”
    5. Idem sonans—what are. Held, that Hosea E. Wynn and Hosia E. Wynn are idem sonans.

      6. Transcript of record—when rules of court not part of. Rules of court do not become part of the transcript of the record by being appended thereto accompanied by the clerk’s certificate that they are “true copies” and in force at a time specified.
    7. Rules of court—when non-observance of immaterial. The action of the court in disregarding its own rules is immaterial and will not reverse in the absence of harm having resulted.
    8. Decree—effect of clerical mistake in. Held, that a mere clerical mistake in a name was not so material as to require a reversal of the decree entered in this cause.
    9. Master’s sale—what rebuts claim of irregularity in certificate of publication of notice. Held, that the finding of the court that the master in making his sale had proceeded in due form of law and in accordance with the decree, was sufficient to meet any question raised in this case as to the sufficiency and regularity of the certificate of publication.
    10. Writ of error—who may sue out, on behalf of insane person. A next friend may sue out a writ of error for an insane person if his conservator fails to act.

      Foreclosure. Error to the Circuit Court of Lake County; the Hon. Charles H. Doxnelly, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Statement by the Court. On January 22, 1902, defendant in error filed a bill in equity in the court below to foreclose a mortgage upon certain real estate in Lake county, Illinois, given by William Wynn and his wife, Leorah C. Wynn, to secure a promissory note for the principal sum of $5,000 executed by said William Wynn and by Robert D. Wynn. The note and mortgage were given and dated January 23, 1893, and the note was due five years after date with interest at 6 per cent per annum, payable annually. The bill alleged that afterwards, on February 4, 1894, William Wynn died testate, bequeathing to his wife a sum of money in lieu of dower and homestead and of all her other rights (which sum the bill alleged that she accepted) ; devising a certain lot not here involved to one child; and giving all the rest of his real and personal estate to his children, John D., Hosea E., George P., Sarah E., Robert D., Emily A., and Hannah D., now Hannah D. Taylor; that thereafter Hosea E. Wynn and John D. Wynn conveyed their interests in the real estate covered by said mortgage to Bobert D. Wynn; that George P. Wynn had been adjudged insane by the County Court of Lake county, and Robert D. Wynn had been appointed his conservator, and had duly qualified, and was acting as such; that the principal of said note was past due and unpaid, and that all the interest thereon from January 23, 1898, was unpaid; and the bill set up various tax sales of said property and redemptions thereof by defendant in error; for all which expenditures, and for a solicitor’s fee of $50 as well as for the principal and interest due upon said note, defendant in error claimed a first lien upon said real estate under the terms of said mortgage. The bill then averred that James G. Smith, Lettie B. Smith, his wife, Hosea Wynn, Martha A. Wynn, his wife, John D. Wynn, Ella Wynn, his wife, Charles A. Wiard, trustee, and Chauncey J. Jones, have or claim some interest, either as purchasers, judgment creditors, tenants or otherwise, in said premises; but which interest, if any said parties have, the bill averred was subject to the rights of defendant in error io foreclose said mortgage for the amounts so due him. Certain defendants were personally served with summons, and the decree recites that certain others personally appeared. The service upon Sarah E. Wynn was by publication and mailing. The decree found jurisdiction of all the parties, and all the defendants were defaulted. The cause was referred to the master in chancery to take and report the proofs, with his findings of law and fact. He took proofs and reported them, with his findings. The note and mortgage and certain certificates of tax redemption were attached as exhibits to the report. A decree of foreclosure was then entered on March 7, 1902. It approved the master’s report, and then recited that the case was heard upon the bill of complaint, taken as confessed against all the defendants, and upon said report of the master, and also upon proofs both oral and documentary produced and heard in open court. There was a sale of said premises on April 22, 1902, by the master in chancery pursuant to said decree; and a report of said sale was submitted to the court on October 6, 1902, and it was on.that day approved.
    On February 15, 1907, within five years after said decree, a writ of error was sued out in the name of all the defendants below; and on October 1, 1907, after the Practice Act of 1907 went into force, limiting writs of error to three years, the record of the court below was filed herein. We assume the writ of error is governed by the limitation in force when it was sued out. Defendant in error filed four pleas in bar. The writ of error as to George P. Wynn, insane, is prosecuted here in his name by Simon Hamberg, his next friend. The first plea sought to bar the writ as to George P. Wynn upon the allegation that Robert D. Wynn was and is the lawful conservator of said George P. Wynn, insane, and that therefore the insane person could not prosecute the writ by a next friend. The second plea averred that Robert D. Wynn was appointed conservator of said George P. Wynn by the County Court of lake county, Illinois, on August 1, 1896, after said George P. Wynn had been adjudged insane by said court, and that said conservator on September 12, 1899, filed a petition for leave to sell the one-seventh interest of said G'eorge P. Wynn in certain real estate; that due notice of said proceeding was given pursuant to law, and was served upon George P. Wynn more than ten days before the October term, 1899, of said court, to which term said petition was brought; that afterwards, on October 11, 1899, at said October term, a decree was entered for the sale of said real estate, and a sale thereof was held by said conservator pursuant to said decree, and said real estate was sold to Janies G. Smith, and the same was reported to and approved by-said court, and a conveyance thereof by the conservator to said James G. Smith was ordered hy the court and was made under date of November 18, 1899, which'deed was recorded in the recorder's office of said Lake county on August 30, 1902; and the plea averred that the real estate so conveyed included all the real estate involved in the decree in the case now before us. The plea averred that, by reason of said sale and conveyance to James G. Smith, said.George P. Wynn' had not at the time this writ of error was sued out nor has he since then had, any right, title or estate in the land covered by said foreclosure decree, and therefore he is barred from prosecuting this writ of error.
    The third plea sought to bar the writ of error as to Sarah-E. Wynn, because,-as the plea alleged, she died May 26, 1905, and before this writ of error was sued out. The fourth plea sought to bar the writ of error as to plaintiffs in error, Robert D. Wynn, James G. Smith, Lettie B. Smith, Charles E. Wiard, trustee, and Chauncey J. Jones, because, as the plea averred, on September 5, 1907, after the rendition of the decree here sought to be reviewed, said five plaintiffs in error, “by their deed of that date duly signed, acknowledged and delivered,” released all errors which may have arisen in said suit and in the said decree.
    Defendant in error demurred to the first, second and fourth pleas, and formed an issue of fact on the third. The cause has been submitted upon these pleadings, and upon an implied joinder in error by the other plaintiffs in error.

      A reversal of the decree is sought on the ground that it was fatal error to enter a default against George P. Wynn, insane; that the certificate of publication of notice to the nonresident defendant, Sarah E. Wynn, was fatally defective; that the return of service as to Hosea E. Wynn showed service on Hosea E. Wynn and did not confer jurisdiction over the person of Hosea E. Wynn; that in entering defaults, in referring the case to the master, and in the proceedings before the master, and in the action of the court after the master’s report was returned, the court violated its own rules; that the decree erroneously found that the mortgage was executed by Sarah G. Wynn, as wife of William Wynn, and treated Sarah C. as the wife of William throughout the decree; that the certificate of publication of the notice of the master’s sale was fatally defective; that there was an improper. taxation of costs; and that in many other respects the proceedings were inaccurate and defective.
    Joinsr L. Fogle, for plaintiffs in error.
    Elam L. Olabke, for defendant in error.
   Mr. Justice Dibell,

delivered the opinion of the court.

When the conservator of an insane defendant fails to file an answer for him, it is the duty of the court to appoint a conservator or guardian ad litem to answer and to protect his interests. Hall v. Davis, 44 Ill., 494. It is error to enter the default of an insane defendant for want of an answer. White v. Kilmartin, 205 Ill., 525. But the second plea filed here alleges that George P. Wynn was adjudged insane, that a conservator was duly appointed for him, and that said conservator took such due and orderly proceedings in the court having jurisdiction of the person and estate of said George P. Wynn, insane, that all his interest in the real estate covered by the mortgage foreclosed in this suit was duly sold and conveyed to James G. Smith, the conveyance having been made on November 18, 1899, long prior to the filing of this bill to foreclose. The demurrer to this plea is based on the ground that it sets up matters occurring long prior to the filing of the bill, and that it contradicts or is inconsistent with the allegations of the bill and with the position of the defendant in error in the court below, and that therefore it cannot be allowed. It will be seen from the statement preceding this opinion that while the bill avers that William Wynn owned this real estate when he mortgaged it, and that by his will, which became effective on February 4, 1894, he devised a one-seventh interest therein to said George P. Wynn, it does not aver that George P. Wynn remained the owner of that interest when the bill was filed. It does name defendants who have or claim some interest in the premises, and includes James G. Smith among the number, and does not apply that allegation to George P. Wynn. It does not aver that the latter had any title or interest in the premises when the bill was filed. The averments of the plea furnish an explanation for making George P. Wynn a defendant, and also for the failure of the conservator to answer for him, namely, that the title and interest of G'eorge P. Wynn had been conveyed to James G. Smith long before the bill was filed but the deed had not then been filed for record, and was not so filed till after the decree of foreclosure was entered. We conclude that the plea does not contradict but only supplements the bill, and that the demurrer thereto should be overruled. The plea stands admitted. It therefore appears that George P. Wynn has no interest in the premises and had none when the bill was filed. The error of entering his default was therefore harmless.

Jurisdiction of defendant Sarah E. Wynn, one of the devisees of William Wynn, was obtained by the publication and mailing of notice. The publisher, a corporation, in a certificate signed in the corporate name by its president, certified that it is the publisher of the Waukegan Gazette, “a newspaper printed and published at Waukegan in the county of Lake and State of Illinois, and that the annexed notice was published once in each week for four weeks successively in said paper, the first publication of which said notice was dated the 25th day of January, A. D. 1902, and the last publication thereof was dated the 15th day of February, A. D. 1902.” It is objected that it does not appear that said newspaper was a secular newspaper of general circulation. The decree found that said Waukegan Gazette was a public newspaper printed and published at the city of Waukegan, in the county of Lake, in the State of Illinois. It is further objected that the certificate of publication does not show that the first publication of notice was made at least thirty days before the term, nor does it give the dates of the first and last papers containing said notice. The term to which the notice was returnable was to be held on the first Monday of March, 1902. While the use of the word “dated” is not so explicit as the word “made” would have been, yet we think the certificate should be construed to mean that the paper in which the first publication was made was dated January 25, 1902, and that the paper in which the last publication was made was dated February 15, 1902, and that the date of each paper was the true date of its issue or publication. But jurisdiction of Sarah E. Wynn does not depend upon such an assumption. The court could hear further proofs of due publication of notice to her, besides said certificate of publication. The clerk’s certificate of the mailing of notice to said defendant recites that a copy of the said notice was mailed to her on January 25, 1902, within ten days after its first publication. As January 25 was more than thirty days before the first Monday of March, it thus appeared that the first publication was made within the time required by law. The bill was filed on January 22, and the first publication therefore could not have been made earlier than J anuary 22 nor later than January 25. The court had authority to hear still further proof to establish due publication and mailing, and it found that due notice of the pendency of the suit had been given said defendant Sarah E. Wynn by publication and by the mailing of notice.

The summons was returned as to the defendant Hosea E. Wynn served upon Hosia E. Wynn. We regard these as idem sonans. The court found that defendant Hosea E. Wynn had been personally served with process more than ten days before that term of court. The bill averred and _ the decree found that before the bill "was filed Hosea E. Wynn and his wife conveyed his interest in the mortgaged real estate to Robert D. Wynn. Hosea E. Wynn was therefore not a necessary party to the foreclosure suit. The fourth pica shows that Robert D. Wynn has released all errors herein. We are of opinion that the decree should not be reversed because of the error in spelling the name of Hosea E. Wynn in the return of the summons.

It is argued that the court violated certain of its rules in its proceedings in this cause. The record of this cause, certified by the clerk of the court below, to be complete, except as to a missing entry of appearance by certain defendants, does not contain any rules of court. The clerk has appended to the record of this cause copies of certain rules and has certified that they are true copies and that they were in force at the March term, 1902. • We are of opinion that the rules cannot in that way be established and incorporated into the record of a cause wherein no action pertaining to such rules was ever taken. Ho defendant asked for delay because of said rules. It is not shown that any defendant was injured because of said action. One of these rules required that evidence in default cases should be written up and certified by the official stenographer and filed with the clerk, and it is urged that the proof beard by the court after the receipt of the master’s report should have been thus written up and filed. Such a transcript of oral proof could not be made a part of the record by the certificate of the official stenographer. It could only be made a part of the record by the certificate of the judge of the court. If such a transcript had been filed it would not have aided plaintiffs in error in a review of the case here. Moreover, there is nothing in this record to show that the court below had an official stenographer at the time when these proceedings were had.

The master’s report set out in full the oral evidence heard by him, and the note and mortgage and tax redemption certificates-essential to make complainant’s case, and contained a memorandum only of certain other documentary evidence offered, and it is argued that it was error not to set out all said documents in full in said report. As tire decree recites that the cause was heard not only upon the report of the master, hut also upon oral and documentary proofs produced and heard in open court, we must assume that this defect, if the omission of said documents from the master’s report was a defect, was cured by their production in open court.

The decree contains one mistake. The bill averred that Leorah C. Wynn was the wife of William Wynn, and that she executed said mortgage; and that her husband willed her a sum of money in lieu of all her dower and homestead and other rights in his property. The proof showed that Leorah C. Wynn executed said mortgage as wife of William Wynn. The decree however named Sarah G. Wynn as the wife of William Wynn and the one who executed said mortgage. This is evidently a clerical mistake. Neither Leorah C. nor Sarah G. Wynn was made a party to this suit. As the decree finds that the wife of William Wynn accepted a bequest of money from him in lieu of all her interest in these lands, we are of opinion that this mistake in name does not call for a reversal of the decree.

The certificate of publication of the notice of the master’s sale is substantially in the same form, except as to the number of weeks of publication, as the certificate of publication by the same publishers in the same newspaper already discussed. The considerations already suggested are in part applicable. The court found that the master had proceeded in due form of law and in accordance with the terms of the decree. We conclude that the objection to the certificate of publication of the notice of sale is unfounded. Objection is made to the amount of costs paid by the master. Apparently the amount is correct, but if not plaintiffs in error should ask the court below for a re-taxation of costs. The fee book is not in this record, and the record does not disclose rvhat items were taxed as costs. The decree directed the clerk to tax the costs and the master to pay them, and the receipt of the clerk shows that the master paid what he taxed.

As we find no reversible error in the record, but little further need be said about the pleas. We hold that a next friend could sue out a writ of error for an insane person, if his conservator failed to act, and that if that course were irregular it would not bar a writ of error, and we sustain the demurrer to that plea. We overrule the demurrer to the second plea, for the reasons already stated. Issue of fact should not have been joined upon the.third plea. The death of Sarah E. Wynn would not bar a writ of error in behalf of the interest she had owned. The fact of her death should have been presented by motion or by plea in abatement, and the other plaintiffs in error could then have amended by substituting the parties who succeeded to her interest. The joinder of an issue of fact upon said improper plea in bar raised an immaterial issue, which we disregard. It is argued that the fourth plea does not aver a consideration for the release of errors. It avers that the plaintiffs in error named in said plea released all errors “by their deed” duly signed, acknowledged and delivered. The term “deed” means a sealed instrument, and a seal imports a consideration. Anderson’s Law Dict., title, “Deed”; Rendleman v. Rendleman, 156 Ill., 568. We overrule the demurrer to the fourth plea.

It is argued that there are many other slight inaccuracies in the record, but we find in them no reversible error.

The decree is affirmed..

Affirmed.


author: Mr. Justice Dibell

text:
    Theodore T. Hix, Appellee, v. William T. Nolin, Appellant.
    Gen. No. 4,881.
    Appeals and errors—when questions raised not subject to review. If the hill of exceptions contains no motion for a new trial, no exception to the overruling thereof and no exception to the judgment sought to be reviewed, the sufficiency of the proof and the propriety of the rulings upon the trial are not open to review.

      Action commenced before justice of the peace. Appeal from the Circuit Court of Iroquois County; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Crangle & Vennum, for appellant,
    O. F. Morgan, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Appellee sued appellant before a justice of the peace to recover commissions of 10 per cent alleged to be due him upon a sale of a stallion named “Field Marshal” by Nolin to one Wilt for $600. Appellee recovered before the justice, and again before a jury in the Circuit Court, and had judgment, from which defendant below appeals and sets up as ground for reversal (1) that the proof did not show that the minds of the parties met upon the terms of the alleged contract, (2) that if a contract was made it was rescinded before the sale, and (3) that the court erred in not admitting in evidence an advertisement inserted by appellee after the sale in a newspaper in the village where the parties lived. The bill of exceptions does not contain any motion for a new trial nor any exception to the overruling thereof nor any exception to the judgment. The clerk has improperly inserted in his record points supposed to have been filed upon a motion for a new trial, and has recited that the court overruled it. This, however, does not cure the defect of failing to state these matters in the bill of exceptions. This record therefore does not present for our decision the questions argued by appellant.

Nevertheless, as both parties have earnestly argued these questions, we have examined the testimony. We find there is no substantial difference between the testimony introduced by appellee and that introduced by appellant as to the language used by the parties when the contract is alleged to have been made, and that the ordinary meaning of the words used was that if appellee would sell the horse for appellant for $600, appellant would pay him 10 per cent commission. Appellant claims that his meaning was that he should have $600 for the horse, and that the commissions should be obtained in addition thereto. That was not the ordinary meaning of the language used by the parties and the jury were justified in finding for plaintiff in the sum of $60, as they did, appellee having hunted up a party who wanted such a horse and brought him to see the horse and introduced him to appellant, who thereupon sold the horse to said party for $600. Appellant testified that after appellee had begun work which resulted in the sale of the horse, he called up appellee by telephone and told appellee that he must have $600 for the horse with no “rake-off” to anybody; and that at a meeting shortly thereafter between the parties appellee told appellant that he was not seeking to sell “Field Marshal” for the sake of the commission, but because the sale of that horse would enhance the reputation of “St. Peter,” sire of “Field Marshal,” “St. Peter” being owned and kept as a stallion by appellee. Appellant relies upon this testimony as proving a rescission of the contract. The burden of proving a rescission was upon appellant. Appellee denied each of these conversations. The jury were therefore warranted in finding against appellant on that point. The jury might well conclude that it was not probable that appellee would thus waive his commissions when he had already done considerable work in trying to sell the horse and had a purchaser then in sight. Appellant sought to prove that after1 the sale had been made, appellee, in advertising his horse, “St. Peter,” in a local newspaper, mentioned the fact that some of “St. Peter’s” colts had been sold at good prices and that “Field Marshal” had been sold by appellant for $600. Appellee would be just as likely to insert such an advertisement after the sale had been made whether he had been connected with the sale or not, and whether he had procured the sale for a commission or merely for the sake of advertising the sire. The offered proof had no tendency to show that appellee had relinquished his contract for commissions. The court therefore properly refused to admit the advertisement in evidence.

The judgment, is therefore affirmed.

Affirmed.


text:
    Edd Page, Plaintiff in Error, v. A. N. Smith, Defendant in Error.
    Gen. No. 4,886.
    1. Verdict—when not disturbed as against the evidence. A verdict will not he set aside on review as against the weight of the evidence where such evidence is conflicting and there was no decisive preponderance either way.
    2. Instructions—presumption as to consideration by jury. The court will presume that the jury gave equal consideration to each instruction given and even though one instruction standing alone would be misleading, a reversal will not follow if all the instructions considered together are correct in law and free from conflict.
    Action commenced before justice of the peace. Error to the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    A. C. Horton, for plaintiff in error.
    W. G. Graves, for defendant in error.
   Mr. Justice Dibell

delivered the opinion of the court.

Page sued Smith before a justice of the peace. On the trial of the case in the Circuit Court on appeal Smith had a verdict and a judgment against Page for $80 from which the latter prosecutes this writ of error.

The parties made a verbal contract by which Page was to haul shale from a coal dump and deliver the same upon a lot or lots owned by Smith which needed filling. Page hauled and deposited the material. It was a controverted question whether Page was to have forty cents per yard for the work, as Page claimed, or twenty-five cents per yard, as Smith claimed; and also whether Page hauled 802 yards, as claimed by him, or only from 185 to 250 yards, as claimed by Smith. Smith had paid Page a small amount of money. It was a controverted question of fact whether this was paid upon the hauling of shale under this contract, as claimed by Page, or whether it was paid upon the hauling of certain merchandise from the depot to Smith’s store and from one depot to another, as claimed by Smith. Upon most of these questions the jury seem to have found with Page, and as the evidence was conflicting and there was no decisive preponderance either way, we see no reason for disturbing the conclusion of the jury on these matters.

The main controversy is upon another matter. The contract for hauling the shale was made in November, 1904, and the work was done in November and December, 1904. On May 20, 1903, Smith recovered a judgment against Page in the Circuit Court of Livingston county for $329.25 and costs, and no part of the same had been paid when the contract for hauling the shale was made, and in the trial of this case Smith introduced that judgment as a set-off. Page testified that when the contract for hauling the shale was made Smith proposed that the price should be applied upon this debt; that Page replied that he would have to have some groceries and enough to pay his shovelers and something to live on, and that it was agreed that one-half the price should be applied on the debt and the other half should be paid by groceries out of Smith’s store and by cash. Smith testified that the agreement was that the entire price for hauling the shale should be applied on the debt, except that Page was to have about $15 to buy groceries. The only other person present when this contract was made, who testified, was John Bass, who was called as a witness by Page, and who testified on direct examination that the agreement was that Smith should let Page have groceries and horse feed, and the rest of the price of hauling the shale was to be applied on the debt, which practically corroborated Smith, while on cross-examination by Smith, he testified that Page was to have horse feed and half and the other half was to go on the debt. Neither side asked the witness any further questions to ascertain which statement he really meant. So far as appears on paper therefore the evidence seems to have been evenly balanced upon the question whether Page was to have half the price paid to him in groceries, horse feed and cash, and the other half only was to be applied upon the debt, or whether Page was to have only groceries or groceries and horse feed required for the use of his family and teams, and the rest of the price was to be applied on the debt. The jury seem to have determined this in favor of Smith. They saw the witnesses and we cannot disturb their conclusion. If Smith’s testimony on that subject was true, it is not questioned but that this judgment is substantially correct.

But it is argued that this verdict was produced by the action of the court in giving the third instruction requested by defendant, to the effect that if the jury believed from the evidence that Page was owing Smith as much or more than Smith was owing Page, then they should find for defendant. It is argued that as the judgment was in evidence this instruction compelled the jury to find for Smith upon the judgment, regardless of whether the jury did or did not find that the contract was that only half the price of hauling the shale was to be applied upon the debt due to Smith. If this instruction stood alone it might have been so understood by the jury. But it is to be presumed that the jury considered all the given instructions in determining the meaning and application of any one. The court gave an instruction for Page to the effect that if the jury believed from the evidence that one-half of the price of hauling the shale was to be paid in cash and the other half was to be applied upon the judgment Smith held against Page, then Smith became liable to pay Page one-half of the price of such hauling, less what payments had been made thereon. The court also gave an instruction requested by defendant which in effect told the jury that if they believed that the evidence that all the work done was to be applied on the judgment except about $15 was of as much weight as the evidence that only half of the work done was to be applied on the judgment, then they should find for the defendant; and also gave an instruction for defendant that if they found the plaintiff owed the defendant the amount of the judgment and interest thereon and that no part of the same had been paid, and if they further believed from the evidence that all the hauling done by Page was to be credited on the judgment, then they should find for defendant, unless the work done by plaintiff exceeded in value the amount of the judgment. No instructions were given which contradicted these. In our opinion when the jury considered defendant’s third instruction in connection with the other instructions just stated they could not have been misled by said third instruction. That the court tried the case upon the theory that plaintiff could recover for the unpaid part of half the contract price for hauling the shale, if tie contract was that only half of the price for hauling the shale should be applied on the judgment, is shown by the fact that the court refused instructions requested by defendant and not set out in the abstract which would have entitled Smith to have his judgment set off against the entire contract price regardless of what the contract may have been upon that subject. We therefore conclude that the verdict is right, under the evidence and the instructions, regardless of the sei'ious question we have whether Smith was not entitled to the benefit of his judgment as a set-off, regardless of the contract between the parties. The statute regulating the p3*actice before justices óf the peace requires each party to bring forward all his demands against the other, existing at the time the suit is begun, etc. The contract as testified to by Page was exceedingly meagre. He did not claim that there was any agreement that if Smith should be sued he should not be at liberty to bring forward his judgment as a set-off. Again, if Smith had not introduced his judgment by way of set-off, and Page had obtained a judgment and caused an execution thereon to be placed in the hands of the sheriff of the county, Smith could have caused an execution upon his judgment to he issued and placed in the hands of the same officer, and could have required the sheriff to set off the one execution against the other, under the provisions of sections 58 and 59 of chapter 77 of the Revised Statutes relating to judgments, decrees and executions; and Smith would have thereby obtained the same result accomplished by the judgment now before us. It can hardly be contended that there was anything in the contract as testified to by Page which would have prevented such a set-off of execution. We are of opinion that there is grave doubt whether a court of law could give Page the protection he here seeks against the prior judgment rendered against himself.

The judgment is affirmed.

Affirmed.


text:
    Nels Pierce et al., Defendants in Error, v. Edward Coryn, Administrator, et al., Plaintiffs in Error.
    Gen. No. 4,889.
    1. Judicial notice—of what not taken. Judicial notice will not be taken of matters not of common knowledge.
    2. Negotiable instrument—tohen defense of failure of consideration not established. Held, that the evidence in this case was incomplete and insufficient to establish the defense of a failure of consideration.
    3. Decree—what not personal against administrator. A decree providing that an administrator, defendant in a foreclosure proceeding, pay a specified amount within a designated time and that in default the mortgaged premises he sold, is not personal hut merely directory as to the manner in which a sale may he avoided.

      4. Deficiency decree—proceeding essential to render, against estate. Held, in this case, that if there was a deficiency after sale upon foreclosure the court upon application for a deficiency decree should hear proofs and determine whether the state of the case was such as to entitle the complainant to a deficiency decree against the general estate of the deceased.
    Foreclosure. Error to the Circuit Court of Rock Island County; the Eon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    W. E. Moore, for plaintiffs in error.
    J. B. & J. L. Oakleaf and J. T. Kenworthy, for defendants in error.
   Mr. Justice Dibell

delivered the opinion of the court.

This was a suit brought by Nels Pierce and Gust S. Lundquist against Isedore Verhulst to foreclose a real estate mortgage given to secure two notes of $800 each, which notes were a part of the consideration for the assignment by one. Lewis to Verhulst of a certain contract authorizing Lewis to cut and remove timber growing on certain other real estate. Said notes had been sold and indorsed by Lends to Pierce and Lundquist. Verhulst died, and his administrator, Edward Coryn, and his heirs at law were substituted as defendants. This case was before this court in Pierce v. Coryn, 126 Ill. App., 244, where a decree in favor of the present defendants in error was reversed, and where the merits of the case were fully discussed and decided. The case was remanded for further proceedings in conformity with that opinion. We refer to that opinion for our view of the facts then existing and of the law applicable thereto. Thereafter the case went to a master, who took and reported the proofs with his conclusions, after overruling objections thereto. Complainants had a decree of foreclosure. Defendants below have sued out this writ of error to review said decree. The court below was concluded by our former decision, except so far-as the additional evidence might require a difieren! decree from that indicated in our former opinion. We consider ourselves also bound by our former decision.

The brief of plaintiffs in error now is practically a re-argument of the points covered by our former decision, and the only additional evidence is adverse to plaintiffs in error. At this last hearing before the master, Lewis was a witness. He testified that he executed the contract with Verhulst whereby he assigned to Verhulst the wood contract in question, and that he then turned over to Verhulst the possession of the property and the cut wood and the machinery described at length in our former opinion, including between three hundred and four hundred cords of wood cut in stove lengths and between twelve hundred and fourteen hundred cords of wood cut in tree lengths; and that Verhulst, while afterwards in possession under that contract, sold and disposed of all that cut wood and of about seven hundred cords besides. Plaintiffs are alleging a failure of the consideration of the two notes of $800 each, given as part of the consideration for the assignment of that wood contract by Lewis to Verhulst. They made no attempt to prove the value of the wood so received by Verhulst nor the value of the machinery which Lewis turned over to Verhulst under that contract. We cannot take judicial knowledge of the value of this wood and the record does not disclose the value of the machinery. We cannot know but that the value of the wood and of the machinery and of the g’ood will of the business, which was also transferred to Verhulst, exceeded in value the consideration of $2,500 which Verhulst agreed to pay, of which consideration the two notes in question of $800 each are a part. Therefore the defense of a failure of consideration has not been made out.

The decree found and adjudged that the equities were with the complainants; that there was due from the administrator to complainants $3,037.32 for principal and interest and $500 for a reasonable attorney’s fee, making a total of $3,537.32, and that said administrator pay said sum to conplainants within ten days, and directed that if default in payment was made by defendants or any of them, then the mortgaged premises be sold to satisfy the decree. This is not a personal decree, as suggested in the argument of plaintiffs in error. It is really an alternative decree, and merely points out how a sale of the property may be avoided by payment. Gochenour v. Mowry, 33 Ill., 331; Glover v. Benjamin, 73 Ill., 42; Kirby v. Runals, 140 Ill., 289, 298; Roberts v. Flatt, 142 Ill., 485; Bumgartner v. Hall, 163 Ill., 136. If there shall be a deficiency, after sale, and if defendants in error shall ask for a deficiency decree against the administrator to be paid in due course of administration, then it will be the duty of the court to hear proofs and determine whether the state of the ease is such that they are entitled to a decree against the general estate of deceased.

As already stated, the argument of plaintiffs in error mainly relates to the matters determined by our former decision. There are, however, some other errors assigned which are not argued and are therefore waived.

For the reasons stated the decree is affirmed.

Affirmed.


text:
    Mutual Loan & Building Association of Joliet, Defendant in Error, v. Louis D. Garlick et al., Plaintiffs in Error.
    Gen. No. 4,890.
    1. Evidence—when competency of boohs cannot bo questioned. Held, that by virtue of a stipulation entered into in this case upon a previous hearing thereof the competency of books of account was not open to question.
    2. Appeals and erbors—when action of court not subject to complaint. Error advantageous to the party complaining cannot be made the subject of complaint on review.
    Foreclosure. Error to the Circuit Court of Will County; the Hon. Albert O. Marshall, Judge, presiding.
    Heard in this court at the April term, 1906.
    Affirmed.
    Opinion filed March 11, 1908.
    E. C. Hall, for plaintiffs in error.
    J. W. Downey, for defendant in error.
   Mr. Justice Dibell

delivered the opinion of the court.

This writ of error is sued out to reverse a decree foreclosing a mortgage under a cross-hill filed hy defendant in error. This case is before us for the fourth time. Our first decision is reported in Garlick v. M. L. & B. Assn., 116 Ill. App., 311, and our second decision is reported under the same title in 129 Ill. App., 402, in general number 4703. In those two opinions we passed very fully upon the merits of the contentions of the respective parties and stated the facts with great fullness of detail, and we here refer to those opinions to avoid a restatement of the facts and the law. In the second decision we remanded the cause with specific directions to the court below to enter a decree finding certain facts and to refer the cause to the master to state an account upon the certificate of evidence then in the record and upon such further evidence as the parties might offer, and with certain specific directions to the master as to the method of stating the account. A decree was entered pursuant to these directions. The master heard such additional proof as the parties offered, and stated the account pursuant to the di-' rections given. Objections and exceptions thereto were overruled and a decree of foreclosure was entered pursuant to that report. Thereafter plaintiffs in error sued out a writ of error under the same title, in general number 4838 of this court, to review said decree, and filed here a record containing only the proceedings in the court below after we remanded the cause the second time, and on that record assigned errors. On August 6, 1907, we dismissed that writ of error for the reason that the record contained none of the pleadings and omitted most of the evidence, namely, all the evidence contained in the original certificate of evidence. 135 Ill. App., 490. Thereafter plaintiffs in error by leave of court withdrew the record in general number 4703 and the record in general number 4838, and consolidated said two records in the present case. Defendant in error appeared and joined in error. The argument of plaintiffs in error here is chiefly in support of the positions taken when the case was here the first and second times, and is an attempt to induce us to review the conclusions we then reached upon the merits. The court below was bound by our directions, and obeyed them, and we consider ourselves also bound by the directions we gave the court below and that those questions are not now open to reconsideration in this court. A few matters remain for further consideration.

Plaintiffs in error complain of the admission in evidence of the books of the Association. The record discloses the following sufficient replies to this position: First. At the second hearing the parties entered into a stipulation which is in part set out in our opinion in 129 Ill. App., 402. A large amount of tabulated matter was attached to that stipulation, showing many payments of principal, interest, taxes and fines. This was practically the books of the corporation relative to the dealings between defendant in error and plaintiffs in error. It was the meaning of that stipulation that that statement should be treated as in evidence, subject to be modified only by proof of other payments by plaintiffs in error. By the stipulation the case was submitted to the court for decision upon this tabulated statement. We are of opinion that after plaintiffs in error entered into that stipulation, and the cause was heard and decided upon it, both in the court below and in this court, they cannot now be heard to say that a proper foundation had not been laid for the introduction of the books. Second. The secretary of the Association testified that the books were true and correct and were books of original entry. Third. The admission of the books was to the advantage of plaintiffs in error. The notes and mortgages standing alone made a case against them for a much larger decree than was rendered below. Plaintiffs in error relied upon the proof of payments made by them contained in said books. Without said books they were unable to prove with any precision what payments they had made. We are satisfied with our former decision which treated the books as properly in evidence.

Two new matters were litigated on the last reference to the master. Defendant in error claimed and was allowed credit for an item of $290.50 for insurance paid by it. Plaintiffs in error question the propriety of this allowance. The mortgages authorized defendant in error to insure the property. The check with which it paid this insurance is in evidence. Two witnesses testified that defendant in error paid this insurance. Certain insurance which plaintiffs in error paid after the first hearing of the cause is sufficiently shown to have been other insurance than that included in the item above mentioned. The testimony of plaintiffs in error against said item is slight and uncertain. There was no error in allowing that as an expense properly incurred by defendant, in error in protecting the loan.

Plaintiffs in error argue that the master and the court erroneously refused them a credit of $70. They seem to have offered in evidence a receipt for $70, but that receipt appears to be omitted from the record. According to ’ the evidence that receipt did not run to the plaintiffs in error, but to another person. Defendant in error claimed that it had credited plaintiffs in error with this payment on its books, and it showed such an item of credit. The only difference was that the date of the credit on the books is four days before the date of the alleged receipt. Apparently the receipt was made out four days after the money was paid, and was not dated back to the time of the payment. We do not feel justified in disturbing the conclusion of the master and of the court upon that subject.

We find no substantial error in the record. The decree is therefore affirmed.

Affirmed.


text:
    A. H. Waterman, Appellant, v. Estate of William T. Kirk, deceased, Appellee.
    Gen. No. 4,897.
    Statute of limitations—when begins to run as to contingent undertaking. Where a contract provides that performance by the promisor shall take place upon the happening of a certain contingency or the fulfillment of a certain condition, the cause of action accrues and the statute begins to run when the event occurs and the condition is complied with, and not before. The death of the party making the promise, before the contingency happens, does not set the statute in motion in favor of his estate.
    Contested claim in court of probate. Appeal from the Circuit Court of De Kalb County; the Hon. Linus C. Ruth, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    Cliffs & Cliefe, for appellant.
    A. G-. Keskedy, for appellee; A. W. Fisk, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

William T. Kirk died on or about March 10, 1900, leaving a last will. On April 6, 1908, a petition for the probate of said will and for a grant of letters testamentary was filed in the County Court of DeKalb county, where said Kirk resided at the time of his death. Over four years later, and on or about June 27, 1904, said will was admitted to probate and on the next day letters testamentary were issued. The petition for letters stated that the deceased left real estate worth about $10,000 and personal property worth about $300. No inventory of his estate was ever filed. On July 13, 1906, F. B. Townsend filed a claim against said estate in favor of A. H. Waterman for the use of F. B. Townsend in the sum of $415.95, for services performed by A. H. Waterman as an accountant in the case of William T. Kirk v. Mary A. Byers et al. in the Circuit Court of DeKalb county. Said claim was disallowed in the County Court and was taken to the Circuit Court on appeal, where, upon a jury trial, there was a verdict for the estate. A motion for a new trial was denied and the claimant excepted, and the estate had judgment, from which claimant prosecutes this further appeal.

The facts are practically undisputed. From 1873 to 1893 Kirk was a partner with one A. B. Byers in certain real estate transactions. They borrowed money, bought a farm, laid out thereon the village of Kirkland, built a railroad depot, platted the tract into lots, blocks and streets, built sidewalks and made other improvements, and sold lots. They renewed loans and made new loans and paid notes. They kept no books of account. In 1893 Byers died. Kirk desired to commence a suit against the legal representatives of Byers for an accounting. One firm of lawyers made an investigation and reported to him that there was not sufficient- data from which to state an account and therefore declined to take the suit. He then went to William C. Kellum, an attorney, and at the latter’s suggestion, A. H. Waterman, who was both an attorney and an accountant, was called in to investigate the question whether an account could be stated from the various data of the transactions of the firm which were obtainable. Waterman spent two weeks in searching, and reported that an account could be stated. Kirk then hired Kellum to begin and prosecute a suit for an accounting, and hired Waterman to collect the data and prepare an account of the transactions of the late firm. Kellum filed the bill and prosecuted the suit. Waterman spent about six months in collecting the data and preparing a.detailed statement of the account of the financial transactions of the partnership. The case went to a master in chancery, who stated an account with a balance in favor of Kirk, and reported the same to the court. Objections thereto were filed and on March 21, 1900, the docket of the Circuit Court showed that the report of the master was approved and a decree rendered in favor of complainant. Kirk, however, had died on March 10, 1900, and the decree so ordered was not written or entered upon the record, and the cause remained in abeyance on the docket for several years, during which period Waterman assigned his claim to Townsend. Thereafter on June 11, 1906, the administrator and the heirs at law of Byers, the defendants in the bill for an accounting, and the executrix and devisees and legatees of Kirk, came into court, and gaid executrix, devisees and legatees of Kirk were substituted as complainants in place of William T. Kirk, deceased, and the cause was dismissed. The reason for the dismissal was that the parties had effected a settlement. On July 13, 1906, being about a month after the dismissal of said suit, this claim was filed.

Waterman had done no work under his contract since the death of Kirk, and the defense was the Statute of Limitations as to claims filed against estates, and that defense prevailed in the Circuit Court. The question whether the claim'5 was barred by the Statute of Limitations depends upon the contract between Kirk and Waterman. The proof shows that Kirk had substantially no property at the time Waterman was hired. The price agreed upon for Waterman’s services was $5 per day, and the proof show’s that the contract was that Kirk would pay Waterman from time to time •what he could, or some small sums from time to time, the amount and the times of such payments not being specified, and that Kirk should be paid the balance out of the proceeds of the suit or when the suit was terminated. The witnesses who testified to the contract left it perhaps uncertain whether the balance was to be paid absolutely at the termination of the suit or whether it was to be paid out of the proceeds of the suit after the suit terminated. Kellum made a like arrangement with Kirk as to his fees at the same time. It is clear that Kellum, Kirk and Waterman in making these arrangements, were confident that the suit would result in a decree in favor of Kirk for a balance due him upon the partnership account. If the contract was as above stated, then we think it clear that no cause of action arose in favor of Waterman, and his right to demand payment had not accrued, until the case was settled and the executrix, devisees and legatees of Kirk received the avails of a settlement, and the fact of such settlement became known to Waterman, or until the dismissal of that suit pursuant to such settlement. Where a contract provides that performance by the promisor shall take place upon the happening of a certain contingency or the fulfillment of a certain condition, the cause of action accrues and the statute begins to run when the event occurs and the condition is complied with, and not before. Where a contract provides that the promisor shall pay money to the promisee when the same shall be collected, the statute begins to run from the time of collecting. 25 Cyc., 1072, 1073. If an attorney undertakes to prosecute a suit for a contingent fee payable out of what may be realized from the claim, the statute begins to run against his right to compensation only when the money is collected. 25 Cyc., 1081. The right of action on a claim depending on a contingency or condition does not accrue till the happening of the contingency or the fulfillment of the condition, and the statute does not begin to run till then. The death of the party before the contingency happens does not set the statute in motion in favor of his estate. The inchoate cause of action continues to exist against his personal representatives as it did against him. 19 Am. & Eng. Encyc. of Law, 2d ed., 193, 194. We applied this rule of law in Quigley v. Harold, 22 Ill. App., 269. The proof that the contract was as above stated is undisputed, except by proof that, after the death of Kirk and long before the settlement of said chancery suit, Waterman told the executrix and others that there was due him from Kirk’s estate over. $400, or $415, and that in the assignment of his claim to Townsend he stated there was such sum due and owing to him from this estate. The word “due” is often used in the sense of “owing-” without meaning thereby that the debt has matured and that a cause of action to sue for its recovery has accrued. There is nothing* to show that when Waterman made these several statements the question when he was entitled to have payment made to him was the subject of discussion, and apparently that was not the matter being considered, and apparently Waterman meant that he had rendered services as an accountant for Kirk for a certain length of time at $5 per day and that after giving credit of certain small sums which the proof showed Kirk paid Waterman thereon, there was owing to him over $400 or $415. As the suit had progressed to a decision in favor of Kirk upon an accounting before the master, and the executrix and devisees and legatees of Kirk had taken no further steps in the cause for several years after Kirk’s death, it was natural that he should thus bring the matter to their attention and endeavor to induce them to pay him, and such seems to have been the nature of the interviews in question. We do not think the language which the proof shows he used to the executrix and others warrants the conclusion that he thereby meant to say that payment had become due him so that he could have brought an action for his compensation before the termination of the suit. We are therefore of opinion that the defense of the Statute of Limitations was not maintained and that, under the proofs there should have been a verdict for claimant, and a judgment that it be paid in due course of administration out of assets inventoried after the claim was filed in the County Court.

Claimant sought to prove how much the estate of Kirk received upon the settlement, and the court sustained an objection to that line of inquiry. We are of opinion that claimant had a right to show that the estate had received as much as or more than the amount of his claim, so that if the jury took the view of the contract that he was only to be paid out of the proceeds of the suit, it would appear that he was entitled to recover the full amount of his claim because the proceeds of the settlement exceeded or equalled the amount due him at $5 per day. He had, however, no right to know or to prove how much the settlement exceeded that sum, as it was immaterial to his right of recovery whether the sum recovered or property received! upon the. settlement largely exceeded the amount of his claim or not.

The judgment is therefore reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Sarah Osmundson, Appellee, v. George A. Leach, Administrator, Appellant.
    Gen. No. 4,898.
    Administration of estates—who not entitled to grant of letters. A creditor of a deceased widow is not entitled to obtain administration upon the estate of the deceased husband of such widow.
    Petition to revoke letters of administration. Appeal from the Circuit Court of Grundy County; the Hon. Samuel 0. Stougec, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    II. B. Smith, for appellant.
    C. F. Hanson, for appellee.
   Mr. Justice Dibell

delivered the opinion of the -court.

George A. Leach petitioned the County Court of Grundy county foi letters of administration upon the estate of Thomas Foxford, deceased, who died intestate. ILe was appointed such administrator. Appraisers were appointed who reported that they were unable to find any personal property of said estate. They fixed the widow’s award at $915. Thereafter Sarah Osmundson, one of the heirs at law of said deceased, filed a petition in said County Court to revoke said letters. This petition was heard and denied, and she appealed from that order to the Circuit Court, where the matter was heard upon an agreed state of facts, and the letters were revoked and all the proceedings had thereunder. The administrator appeals from that order.

Section 18 of the Administration Act, as amended in 1905 and in force when this petition for letters of administration was filed, fixes the order in which administration shall be granted and the right of nomination, giving the same, first, to the surviving husband or wife; second, to the children; third, to the father; fourth, to the mother; fifth, to, the brothers; sixth, to the sisters; seventh, to the grandchildren; eighth, to the next of kin; and ninth, to the public administrator or any creditor who shall apply for the same. Leach did not come within any of these designations. He was not of kin to the deceased, nor was he the public administrator, nor was he a creditor of Thomas Foxford, deceased. He stated in his petition for letters that he was a friend of deceased. Thomas Foxford died April 25, 1902, the owner of a lot in Morris, which he occupied as a homestead. He left surviving him a widow and four children, one of whom is yet a minor. The widow occupied the homestead with part of the children till her death, July 18, 1906. She did not take out letters of administration, but paid the debts herself. After her death the adult children filed a bill for partition of the homestead, making the minor a defendant. Thereupon Leach, on February 7, 1907, filed this petition to be appointed administrator. As he was not one of the persons to whom the statute gave the right to administer, and as there were no debts, and the family did not desire administration, we are of opinion the ruling of the Circuit Court was proper. As Leach was not entitled to administer we consider it unnecessary to discuss matters stated in the stipulation and argued by counsel concerning the intention Leach had in seeking administration. He intended to have a judgment entered for the widow’s award, although she had never claimed an award and was dead, and then to sell the homestead to pay that award, and with the proceeds pay $50 and $75 which it is alleged she owed at the time of her death. Leach was one of her creditors but we are of opinion that that did not entitle him to administration upon the estate of Thomas Foxford. As Leach was not entitled to administer, we think we ought not to decide whether any other person could administer, nor whether the widow’s award could be obtained by strangers after her death, for the purposes alleged.

The order is therefore affirmed.

Affirmed.