text:
    Frank F. Follett, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 6,530.
    1. Death, § 46

      —when evidence as to habits and faculties of deceased is admissible. Where no one saw decedent at the time he was struck by defendant’s train at a street crossing, evidence that he was a sober and industrious man and possessed of the ordinary faculties of a man was admissible, in an action to recover damages on account of his death.
    2. Railroads, § 738*—when evidence is insufficient to show intoxication of deceased. Testimony that decedent on the afternoon of the day he was struck by defendant’s train at a crossing had a glass of beer on his way home, at the supper table five cents’ worth of beer, and in the evening a small beer, that he was not then under the influence of liquor, and testimony of his hoarding-house keeper that she never knew him to be intoxicated, held not to warrant a finding that decedent was intoxicated at the time he was killed that evening.
    3. Railroads, § 738*—what is proof of exercise of ordinary care at time of accident. Proof that decedent was not intoxicated at the time he was struck by defendant’s train at a crossing, and the instincts of self-preservation common to mankind, tended to prove he was in the exercise of ordinary care at the time, in an action to recover damages on account of his death.
    4. Railroads, § 738*-—when finding that decedent was in exercise of due care at the time of being struck by defendant’s train not disturbed. Evidence held insufficient to warrant disturbing the finding that decedent was in the exercise of due care at the time he was struck by defendant’s train at a crossing, in an action to recover damages on account of his death.
    5. Railroads, § 733*—when evidence shows that decedent was struck while on street. Evidence held insufficient to show that the street on which plaintiff’s intestate - was alleged to have been struck by defendant’s train was confined to the plank on the crossing," and to show that deceased was struck while on the street.
    6. Railroads, § 772*—when instruction on what constitutes width of street crossing railroad tracks is properly refused. An instruction that the width, of a certain street was defined by the length of the planks crossing the lands and grounds of defendant at a public crossing of defendant’s tracks, held properly refused where, there was evidence from which the jury might reasonably conclude that the street extended beyond both ends of the planks, in an action to recover damages for the death of plaintiff’s decedent.
    7. Death, § 50b

      —when evidence is sufficient to prove relation of husband and mfe. Evidence held sufficient to prove the relation of husband and wife by reputation, in an action to recover damages on account of the death of the husband.
    8. Death, § 49*—how marriage may be proved. Marriage may be proven by reputation, in- an action to recover damages on account of the death of the husband.
    9. Death, § 1*—when of wife not presumed. Where decedent was shown to have had a wife 3 years before his death, who was then young, her death could not be presumed.
    10. Death, § 50b*—what is prima facie proof that decedent left surviving widow and children. Proof that decedent 3 years before his death had a young wife and minor children who would, if living, still be minors at the time of his death, held prima facie proof that decedent left surviving a widow and such children.
    11. Death, § 49*—when order of Probate Court establishing heirship is admissible. An order of the Probate Court made 2 days before trial of an action in the Circuit Court to recover damages on- account of the death of plaintiff’s decedent, establishing the heirship in the decedent’s estate, was competent evidence in such action, where the Probate Court had jurisdiction of the estate and appointed an administrator before such action was commenced.
    12. Death, § 80*—when incompetency of evidence of heirship is immaterial. The incompetency of evidence tending to show heirship in decedent’s estate was immaterial where prima facie proof to the same effect already existed.
    13. Evidence, § 14*—what judicially noticed. Judicial notice is taken that, a certain foreign country was involved in a great war long before trial preventing the taking of depositions of witnesses residing in that country.
    14. Death, § 4*—what does not affect presumption of life of minors. The existence of a great war in which a foreign country was involved did not affect the presumption of life of persons who were then minors.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Woodward & Hibbs, for appellant; John G. Brennan, of counsel.

      E. C. Donoghue, Butters & Clark and Howard H. Bayne, for appellee.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

The Illinois Central Railroad passes through the eastern part of the City of LaSalle in a direction substantially north and south and has one main track approaching LaSalle from the south, which track crosses a bridge over the Illinois River. Shortly after leaving the river going north there are coal chutes on the west side of the main track. A few hundred feet further north the road crosses First street in the City of LaSalle. A short distance north of that on the west side of the track is a depot. Some distance north of that is a water tank and further north are certain tracks called the Wallace yards. At First street there is a track west of the main track, but it does not extend as far north as the depot. The first track east of the main track was a passing track, and further east were switch tracks and spur tracks, all crossing First street. Second street and Third street did not cross the railroad tracks, and the next street north of First street and crossing the tracks was Fourth street, three blocks distant. East of the railroad were quite a number of homes, and there were also homes north-of First street and east of the railroad from which people came on First street to go down town. The main business part of the city was something like a mile west of this crossing. On the evening of May 17, 1913, freight train No. 152 came from the south, left a part of the train on the bridge, and the engine went north to the Wallace yards with several freight cars and left all but one of them there, and then with that one car backed down to the water tank, and after-wards went south to the coal chutes to take coal. On crossing First street the car and engine ran over and killed Kasper Zemlik and Anton Mes. Zemlik was cut to pieces and instantly killed, but the body of Mes fell outside of the tracks to the west and his legs were nearly cut off and he was taken to a hospital where he died the next day. Follett was appointed administrator of the estate of each of these deceased persons and brought suits in those capacities against the railroad company. In the Zemlik case the recovery of a judgment by plaintiff was reviewed by us in Follett v. Illinois Cent. R. Co., 200 Ill. App. 289. We there discussed at great length the pleadings and the evidence and the rules of law governing the parties. The case now before us is the one brought by Follett as the administrator of Mes. The pleadings in this case are substantially the same as in the ZemliJc case, supra, and were stated fully in our former opinion and need not be repeated here. In the main the evidence was the same, although some witnesses varied slightly from their former testimony. In the main the same rules of law are applicable. We therefore here refer to the opinion in the ZemliJc case for much of the evidence and for a statement of the rules of law governing the case and the numerous authorities there cited to sustain the same. There are certain important differences which will be discussed hereafter. Plaintiff here recovered a verdict and a judgment for $6,000 for the benefit of the next of kin of the deceased, and this is an appeal by the defendant.

An ordinance was pleaded and proved which required every locomotive engine, railroad car or train running in the nighttime on any railroad track within the City of LaSalle to have and keep while so running a brilliant and conspicuous light on the advancing end of such locomotive engine, car or train of cars. It was proved and not controverted that this freight car, pushed south over this First street crossing by the engine whose headlight projected to the north, did not have upon its advancing end any light of any kind when this car struck and killed these two men. Except for the question whether Mes was negligent, which we discuss hereafter, this proof made an undisputed cause of action for the appellee. Another ordinance pleaded and proved prohibited the running of any locomotive engine attached to a freight car at a greater rate of speed than 6 miles an hour. There was a dispute in the testimony as to the speed of this engine and car as it crossed First street going south. The evidence of appellee tended to show that it ran across First street at the rate of 8 miles per hour. This proof tended to establish a cause of action against the appellant under that ordinance. Another count charged a failure to comply with the statute by ringing a bell or blowing a whistle when approaching a public highway. Three minutes before this engine started from the tank to go south, it blew several sharp blasts of the whistle, but it was not a highway signal and it was not so intended, but these signals were given to-notify the man at the coal chutes how much coal the engineer desired to take on. No whistle was blown from three minutes before the engine left the tank until after these men were killed. Appellee introduced proof tending to show that no bell was rung by this engine while it made that trip from the tank to the street. It was admitted that no bell was rung by hand on that engine, but the engineer testified that he started an automatic bell when he left the tank and kept it ringing, and appellant had other witnesses who testified the bell was rung. If the jury believed the witnesses for appellee on that subject, then this established the .cause of action stated in that count. The proof so far referred to also tended to establish a cause of action under the count which charged that appellant so carelessly and negligently operated said locomotive that Mes was thereby killed. There was proof tending to show that this crossing was much used by the general public as well as by the railroad company on its switch tracks, and this proof tended to show that such conditions existed at that crossing as required that a flagman should be placed there at night, or some other means employed to warn the public of approaching cars and trains. There was a flagman’s shanty on the south side of the street at this point but it was not occupied on this night. This proof tended to establish a cause of action under another count of the declaration. The evidence concerning the speed of the engine and car also tended to establish the count which charged that they were run at an unreasonable and dangerous rate of speed. Appellant contends that one of its employees carrying a lighted lantern went to this crossing before the engine and car backed down and stood there and guarded the crossing at the time. Several witnesses for appellant gave evidence tending to sustain this contention. Several witnesses for appellee gave evidence tending to show that no man was there with a lighted lantern guarding the crossing. If he had been there as claimed, it is very difficult to understand why he did not see these men and why he did not warn them or stop the engine and car by proper signaling. Under all the evidence, we think the jury were warranted in finding that no such man was at the crossing with a ligfit guarding the crossing while this engine and car went south. The main defenses urged are that Mes himself was guilty of negligence which contributed to his death; that the street was confined to the planked part of the crossing and that Mes was south of the planks and a trespasser upon the private grounds of the railroad company when he was struck; and that there was insufficient and incompetent proof of the existence of the next of kin..

Each count of the declaration charged that Mes was in the exercise of due care for his own safety. The verdict for appellee was therefore a verdict that he was in the exercise of due care. In determining whether the jury were warranted by the evidence in so finding, it is to be remembered that while almost every one in that vicinity who testified knew that this train had stopped on the bridge, that the engine and a few cars had gone north to the Wallace yards and that the engine and one car south of it had backed down to the tank, and knew that the several sharp blasts indicated how much coal the engineer desired to take on at the coal chutes, and knew that this engine and car would soon back across First street to the coal chutes, yet there is nothing to indicate that either Zemlik or Mes knew any of these things. They lived east of the tracks and worked day times and had gone down town on First street after supper and were on their way home, and evidently reached these tracks after the engine had gone north, and they evidently knew nothing about that situation. If they saw there was an engine and car at the tank (and there is no proof that they did), then they also saw that this headlight was shining towards the north, and there is nothing in the proof which should have caused them to expect that an engine and car were going to be backed south across First street. They were halted at the railroad tracks by a switch engine and cars passing back and forth constantly over First street, east of this main track. That fact makes it plain that they were waiting for a convenient opportunity to go across without being in danger from the switch engine and cars. The switch engine was ringing its bell, it was being reversed and the cars were bumping into each other on each side of the street, and all'this tended to distract their attention from the situation on the main track, and if a bell was rung on the engine of train No. 152 "as it backed south, the noise and confusion of the bell on the other engine and. of the reversing and bumping might have prevented or excused them from hearing it. The authorities we cited in our former opinion showed they had a right to rely upon the ordinance which required a brilliant and conspicuous light on the advancing end of any locomotive or car which might approach that crossing in the nighttime on the main track. They had a right to rely upon an obedience to the ordinance which limited the speed of any such engine and car to 6 miles per hour. Appellant contends that the proof establishes that they stood all the time between the two rails of the main track. This 'is mainly founded on the testimony of one witness, and his evidence, when read in the record, shows that that is not exactly what he meant. He meant that they were standing at or near the main track. "When asked if they were standing between the rails, he said they must have been when they were struck, and he repeated that Statement. We conclude from his whole evidence that he meant, not that he absolutely saw that they were between the two tracks, but that he reasoned and, of course, correctly, that they must have been there when they were struck. If they were standing' between the rails before they were struck, still the situation was very much like that existing in Illinois Cent. R. Co. v. Nowicki, 148 Ill. 29, on which we commented in our former opinion. If Mes was between the rails then it is also to be remembered that where a crossing is planked for the passage of vehicles, the rails project very slightly above the surface of the planks, and are not nearly so noticeable to the eye as where there is no planking or ballast. There was a light in the street west of this crossing, but there is nothing to indicate that that would assist a person on the crossing to see an approaching car. Its office apparently was to enable a person on the car or engine approaching to see persons and teams at and about the crossing. Appellant argues that Mes was intoxicated. The proof shows that on his way home that afternoon he- had a glass of beer, and at his supper table he had five cents’ worth of beer, and while down town that evening, he got a “small beer.” The-woman who sold him that testified that he was not under the influence of liquor. The woman who kept his boarding house testified that she never knew him to he intoxicated. . This evidence did not warrant the jury in finding that he was intoxicated at the time he was killed. No one saw Mes at the time he was struck. This therefore permitted evidence, which was introduced, showing that he was a sober and industrious man, possessed of the,ordinary faculties of a man. This proof, and the instincts of self-preservation common to mankind, tend to prove that he was in the exercise of ordinary care, at the time, as held in the Nowicki case, supra, and in Chicago, B. & Q. R. Co. v. Gunderson, 174 Ill. 495; Illinois Cent. R. Co. v. Prickett, 210 Ill. 140, and in many other cases. The verdict of the jury that Mes was in the exercise of due care cannot he disturbed here on the ground that it is not supported by the evidence.

Each count of the declaration charged that this accident occurred upon First street. Appellant contends that under the proofs First street was limited to the planked crossing provided for the passage of vehicles over the railroad. The proof as to the width of the crossing varied. Some put it at about 12 feet, the length of a single plank, and others put it at various larger lengths up to 32 feet. A witness who measured it just before the trial put it at 32 feet 6 inches, and another witness testified that it had not been changed since the accident. The proof seems to show that the width of this crossing was not the same all the way across the railroad tracks but varied in width. Several witnesses on each side testified that the plank crossing was in the middle of the street. This is inconsistent with the present claim that the street was confined to the plank crossing. To say that the crossing was in the middle of the street, or nearly in the middle of the street, as one says, or a little to one side, implies parts of the street on each side of the crossing. First street had curbs from the west up nearly to this crossing, and those curbs were testified to by some witnesses as being 60 feet apart, and by others 40 feet apart. The curb does not mean the boundaries of the street, but it means the boundary of the space provided for the travel of vehicles. The whole evidence considered, we are of opinion that the proof does not warrant the contention of appellant that the public street was confined to the plank on the crossing. The importance of this is that appellant contends that Mes was struck south of the planked crossing and therefore off the street and on the private right of way of appellant, where he was therefore a trespasser, and appellant had no duty except not to wilfully injure him. A car hitting Mes when going at a speed of 8 miles per hour would be likely to throw him some distance. There is evidence tending to show the existence of blood and of a disturbance of the ballast between the tracks only a short distance south of the plank crossing, and we are of opinion that the whole evidence considered, the truth might have been that he was on the plank crossing when struck, and, if not, that he was only a very short distance south thereof, and we conclude that a finding that he was struck on First street is warranted by the proof. In this connection appellant argues that the court erred in refusing its instruction No. 27. It was framed to tell the jury that the width of the public crossing at the point in question was defined by the length of the planks crossing the lands and grounds of the appellant but did not at said time extend either north or south of said planks. As already seen, there was evidence from which the jury might reasonably conclude that the public street extended both north and south of these planks, and it therefore would have been error for the court to take this question of fact from the jury by that instruction. Moreover, appellant’s instructions Nos. 19, 20 and 21 stated the law on that subject as favorably to appellant as it was entitled to have given.

Each count of the declaration averred that deceased left surviving him his wife and children as his only heirs at law and dependent upon him for support, and that they had each been injured in their means of support by his death. Additional counts gave the names as Mary Mes, the widow, and John Mes, Wadislaw Mes and Anna Mes, the children. The proof shows that the deceased came to the United States from Austria, which was the country of his nativity, and that he returned to Austria a few years before his death and spent a year there. John Ficek testified that he knew Anton Mes in Austria and knew that he had a wife and children, but did not know the wife and had not seen the children. Peter Mes testified that he was a brother of deceased; that he knew his brother was married; that Anton visited Austria for a year some 3 years before he was killed; that the witness knew Anton was married but once; that he knew Anton’s wife when he was there the last time, which was 7 years before the trial. As the trial was in 1917, that made it that the witness was there in 1910. He testified that at that time he also saw the three children, and he gave their names and their ages, and showed that all of them were minors. He did not claim to have been present at the marriage, but it was held in Conant v. Griffin, 48 Ill. 410, that it is sufficient to prove the relation of husband and wife by reputation. It therefore was proved positively that Anton Mes had a wife and three children named, the children being minors, 3 years before his death, but whose ages were such that, if living, they were still minors at his death. Appellee was also entitled to the presumption of life arising from this proof. 2 Chamberlayne on the Modern Law of Evidence, sec. 1034, says that life will be presumed to continue so long as under the conditions shown to exist it would be reasonable to think it should do so. Jones on Evidence (2nd Ed.), sec. 60, states the rule thus: “When a person is shown to have been living at a given time, the continuance of life will be presumed, until the contrary is proved or is to be inferred from the nature and circumstances of the case.” In 13 Cyc. 295, this presumption is thus stated: “As a general rule, when a person is shown or appears to have been living at one time, the presumption is that he is still alive, at least for such time as is not contrary to the laws of nature in respect to the duration of human life.” This rule is thus stated in 10 R. C. L. 872: “When the existence of a person, a personal relation, or state of things is once established by proof, the law presumes that the person, personal relation or state of things continues to exist as before, until the contrary is' shown, or until a different presumption is raised from the nature of the subject in question.”

This presumption has been applied in this State in Lowe v. Foulke, 103 Ill. 58. One Henry A. Stone was mentioned in a will as if living, and in the record there reviewed he would have had an interest if he had still been living, and he was not made a party. It was held that in the absence of proof no presumption would be indulged that he had since died, and that the judgment was erroneous because of his absence from the record. In Chicago & A. R. Co. v. Keegan, 185 Ill. 70, one Augustus Griffin had given one Edward Griffin a power of attorney to convey real estate, and there was in evidence a deed by Augustus Griffin by said attorney in fact dated more than 5 years later. It was objected that it was not shown that Augustus Griffin was alive when this power of attorney was used more than 5 years later. The court held that as Augustus Griffin was alive when he gave this power of attorney, the law would presume in the absence of proof to the contrary that he was living at the later time when the deed was executed in his name. In the case before ns the oral proof already recited also showed the age of the widow at the time she was last seen by the witness in Austria, and showed that she was young, so that no presumption of death by old age could be indulged. This oral proof, coupled with the presumption above stated, made a prima facie case that deceased did leave this widow and these three children surviving him. There was no testimony to the contrary. Peter Mes also testified that about a month after Anton was killed he received a letter from the widow, which showed her existence, and spoke of these children. He testified through an interpreter and it was difficult to make him understand all the questions. He testified that he did not know her handwriting but that he had seen her write, and that he knew that the signature to this letter was hers. The court refused to exclude this testimony. The court admitted in evidence an order of the Probate Court made 2 days before this trial began, establishing the heirship in the estate of Anton Mes, deceased. It is claimed that this was incompetent under Nolan v. Barnes, 268 Ill. 515. In that case the Circuit Court had jurisdiction of the question who were the heirs at law in that case before the Probate Court had such jurisdiction, and therefore the order of the Probate Court was held to be a nullity so far as that suit in the Circuit Court was concerned. In Prescott v. Ayers, 276 Ill. 242, such an order of the Probate Court was treated as competent evidence. In the case before us, the Probate 'Court had jurisdiction of the estate and appointed an administrator before this suit was begun, so that no reason appears why the order of the Probate Court should not be treated as competent. We, however, think it adds nothing to the other proof. It is not claimed that appellee had any proof to present to the Probate Court 2 days before the trial began that he did not have during the trial of this case, and we have no doubt that Peter Mes testified there as he did here. But we consider it immaterial whether any or all of this testimony about the letter and the order of the Probate Court was competent, because the competent testimony already mentioned made a prima facie case of the existence of the widow and next of kin, and that the widow was not beybnd middle age and the children were minors, and the presumption was thereby created that they were still alive. We take judicial notice that long before this trial was had, Austria was involved in a great war, and it is undoubtedly true that neither appellee nor appellant could have taken depositions in that country, after that war broke out, upon the subject of that heirship. If the son or sons of deceased had been of military age, it may be that the circumstances of that war would have lessened the presumption of the continuance of life of those who were in the army, but as they were minors, no reason is perceived why the presumption of life should be affected by the war..

We find no reversible error in the record and the judgment is -therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Fred L. Stevens, Appellant, v. Leon Baltazor, Appellee.
    Gen. No. 6,531. (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebrob, § 288

      —what is not final judgment. A judgment for defendant for costs in an action at law is not a final judgment and is not appealable.
    2. Judgment, § 426*-—when not tar to future action. A judgment for defendant for costs in an action at law is not a bar to a future action by the plaintiff, as the judgment is not a final one.
    3. Appeal and ebbob, § 1140*—when case dismissed with leave to ufithdraw record. Where a judgment is not appealable, appeal should be dismissed with leave to appellant to withdraw record, abstract and brief and to appellee to withdraw brief.
    Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Dismissed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by Fred L. Stevens, plaintiff, against Leon Baltazor, defendant. From a verdict for defendant and judgment that he recover costs and have execution therefor, plaintiff appeals.
    Fred B. Shearer, for appellant.
    Mighell, G-unsul '& Allen, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Warren S. Lee, Appellee, v. William D. Boyd et al., Appellees. Mike Kennedy, Appellant.
    Gen. No. 6,534. (Not to be reported in full.)
    Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Irwin, Judge, presiding.
    Heard in this court at the December term, 1916.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of' the Case.
    Bill by Warren S. Lee, complainant, against William D. Boyd and others, defendants, to remove cloud from the title to complainant’s land. From a decree removing the clouds as to all defendants, defendant Mike Kennedy appeals.
    A former owner of the land, George L. Sharp, contracted to sell and convey it to Lee and Barickman for a stated amount, $19,500, $1,000 of which to be paid in cash upon approval of title as merchantable by a certain attorney and mortgage given to secure the balance, payable $1,000 each year, except the last to be $1,500, with interest from March 1, 1912, when possession was to be given. The contract, dated September 8, 1911, was not filed for record until January 4, 1912, by some one, probably Barickman, who Lee claimed went to Canada in December, 1911, and abandoned the contract. Early in March, 1912, Sharp, at the office of the attorney, made a warranty deed to Lee which was dated March 1, 1912, acknowledged March 23 and recorded March 29, 1912. Barickman by written assignment dated June 10, 1912, executed and delivered then, or in the next November, assigned said contract and by quitclaim deed dated November 1, and acknowledged December 3,1912, but not recorded, conveyed the land to defendant Kennedy.
    A. G. Kennedy, for appellant.

      Abstract of the Decision.
    1. Vendor and purchaser—how abandonment of contract of sale shown. Abandonment of a contract for the sale of land may be shown by a party’s conduct and by circumstances.
    2. Vendor and purchaser—when abandonment of contract by one of two purchasers is shcncn. Evidence held sufficient to show abandonment of a contract for the purchase of certain land by one of the two signers thereof as the purchasers, in an action to remove such contract as a cloud upon the title.
    3. Vendor and purchaser, § 323*—when purchaser may not claim that contract is enforceable in his favor. Where two parties signed a certain contract for the purchase by them of certain land, and one, only, of them made payment of the purchase price and of the cost of certain improvements on the land, and the other paid no part thereof, the failure of the latter to offer to repay the former anything was an insuperable barrier to him or his assignee maintaining the contract as enforceable in their favor.
    Peepers & Wing and Murphy & Lyon, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    Joseph Novak, Appellee, v. Henrietta Shoup, Appellant.
    Gen. No. 6,430.
    1. Animals, § 24

      —what rule obtains as to cattle running at large. The common-law rule concerning the running at large of domestic cattle is in effect in Illinois.
    2. Animals, § 24*—what is rule at common law as to restraining cattle from trespassing. At common law every owner of cattle was bound to keep them in such way that they would not trespass upon the land of another at his peril, and was answerable for their trespass as for his own.
    3. Animals, § 26*—when law as to partition fences does not apply. The question of partition fences between adjoining landowners and the legal obligations concerning them has no effect upon the right of recovery of plaintiff for trespass upon his lands by defendant’s cattle, where their lands do not join and plaintiff has no obligation to keep up any partition fence at any of the places through which the cattle strayed on their way to his land.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Jesse Black, Jr., for appellant.
    Quinn & Quinn, for appellee; Frank J. Quinn, C. V. O’Hern and Harold B. Schradzki, of counsel.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

The controversy in this case concerns certain damage done by the cattle of appellant to the com in the field of the appellee. It was stipulated by the parties that the amount of the damage done was $15. To recover this, a suit was brought before a justice of the peace in Peoria county. A judgment was rendered against the appellant. The case was thereupon appealed to the Circuit Court, where a trial was had by the court, a jury having been waived; and a judgment was rendered in favor of appellee, and against appellant, for the amount of the damage agreed upon, and from this judgment an appeal is prosecuted to this court.

Certain facts pertaining to the controversy were agreed upon and embodied in a stipulation; upon other points evidence was offered. From the stipulated facts and the evidence adduced, as disclosed by the record, it appears the appellant and the appellee were owners of certain lands,- separated by intervening lands of other parties, in Limestone Township, Peoria county. The land of the appellee, upon which the damage was done by appellant’s cattle, joined the land of Mrs. Peters on the west, and on the south it joined the land of George Domberger. The land of the appellant joined Mrs. Peters’ land on the north and the Dornberger land on the east. There were partition fences and partition fence agreements between the appellee and Mrs. Peters, concerning the fences on their line, and between the appellee and George Dornberger, concerning their lands which joined, and between Mrs. Peters and the appellant, concerning their adjoining lands. The cattle in question made their way from the appellant’s land to the land of Mrs. Peters, and from thence to the land of the appellee.

Since the decision in Bulpit v. Matthews, 145 Ill. 345, it has been the settled law of this State, that the passage of the Act of 1874 by the General Assembly, concerning the running at large of domestic animals, had the effect of putting in force the common-law rule in this State. Bulpit v. Matthews, supra; Walters v. Stacey, 122 Ill. App. 660; McPherson v. James, 69 Ill. App. 337; Walsh v. Hertzog, 154 Ill. App. 503; Mailloux v. Cleveland, C., C. & St. L. Ry. Co., 164 Ill. App. 628.

By the common law every owner of cattle was bound to keep them in such a way that they would not trespass upon the land of another, at his peril; and he was answerable for the trespasses of his cattle, as if they were his own trespasses. 3 Bl. Com. 211; 2 Waterman on Trespass, sec. 856; Cooley on Torts 337. In this case, therefore, it was the duty of the appellant so far as concerned the rights of the appellee to keep her cattle upon her own land, and prevent them from getting upon appellee’s land. The evidence is conclusive that she did not do so. When the cattle strayed away from her land they did so at her peril, and not at the peril of the appellee.

Much stress is laid by appellant upon the matter of the division fences, and the obligations of the respective owners of the adjoining lands to keep them up. It is clear, however, from the evidence and the stipulated facts that the appellee had no obligation to keep up any partition fence at any of the places through which the cattle strayed on their way to his land. Moreover, the appellant and the appellee were not adjoining landowners, and the question of the partition fences between adjoining landowners and the legal obligations concerning them has no real significance in this case, and does not affect the appellee’s right to recover. McNeer v. Boone, 52 Ill. App. 181; Selover v. Osgood, 52 Ill. App. 260.

The appellant was clearly liable, under the facts and the law of this State, for the trespasses committed by her cattle and the damages resulting therefrom. The judgment is affirmed.

Affirmed.


text:
    Attilio Catani, Appellee, v. Illinois Third Vein Coal Company, Appellant.
    Gen. No. 6,449. (Not to be reported in full.)
    Abstract of the Decision.
    1. Mines and minerals, § 176

      —when evidence shows failure to furnish adequate props to miner. Evidence held sufficient to warrant the finding that plaintiff needed 6-foot props in his work as miner, that he demanded same of defendant’s driver, that they were not delivered "to him, that the props he had to use as substitutes after failing to obtain props of the proper length were not strong enough or sufficient to hold up the roof properly near the face of the coal where plaintiff was mining, resulting thereby in the premature breaking down of the coal at that point as well as part of the roof, injuring him.
    2. Mines and minerals, § 89*—when custom as to ordering props from drivers is shown. Evidence held sufficient to warrant the finding that there was a custom in defendant’s coal mine for miners to order props for their use in mining from the defendant’s drivers.
    Appeal from the Circuit Court of Bureau county; the Hon. Job A. Davis, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by Attilio Catani, plaintiff, against Illinois Third Vein Coal Company, defendant, to recover damages for personal injuries. From a judgment for plaintiff for $14,000, defendant appeals.
    McDougall, Chapman & Bayne, for appellant; Mas-tin & Sherlock, of counsel.
    Duncan & O’Conor, for appellee.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

3. Mines and minerals, § 90 —when shown that owner had knowledge of custom as to ordering of props. Evidence held sufficient to show that defendant had knowledge of a custom of its miners ordering props for their use in mining from defendant’s drivers which was long existing and to have acquiesced in such custom, so as not to necessitate a demand for props by the mine manager.

4. Damages, § 122*—when verdict is not excessive. A verdict for $14,000 held not excessive for severe and permanent injuries sustained by a vigorous, healthy man 38 years old, which nearly cost him his life, resulted in pain and suffering, the amputation of his leg and permanent crippling therefrom, and consequent inability to perform manual labor, the only kind he was fitted for or able to perform.


text:
    George Brockhausen, Defendant in Error, v. Stover Gas Machine Manufacturing Company, Plaintiff in Error.
    Gen. No. 6,474. (Not to be reported in full.)
    Error to the Circuit Court of Stephenson county; the Hon. Richard' S. Fakrand, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by George Brockhausen, plaintiff, against Stover Gas Machine Manufacturing Company, defendant, to recover the purchase price of a motor truck sold by plaintiff to defendant. From a judgment for plaintiff for $675, defendant brings error.
    Douglas Pattison, for plaintiff in error.
    E. J. Carnahan, for defendant in error.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

Abstract of the Decision.

Evidence, § 265 —when sale slip memorandum of seller of parol contract of sale is inadmissible. A sale slip memorandum, made by the seller of a motor truck, of a parol contract of sale, from which the seller made up his account books, was not competent evidence of the facts purported to be recited therein as to the terms of the sale, where it was not made in the presence of the buyer or acquiesced in by him, in an action to recover the purchase price, wherein the question was whether the sale was conditional or unconditional.


text:
    John Harms, Administrator, Appellant, v. Lee County Fair Association, Appellee.
    Gen. No. 6,485. (Not to be reported in full.)
    Appeal from the Circuit Court of Lee county; the Hon. Richabd S. Fakkand, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by John Harms, administrator of the estate of Albert Harms, deceased, plaintiff, against Lee County Fair Association, defendant, to recover damages for personal injuries resulting in death of plaintiff’s intestate received while he was observing a motorcyclist riding in a motordome at defendant’s fair. From a judgment for defendant for costs, plaintiff appeals.
    J. J. Ludens, for appellant.
    William L. Leech and Clyde Smith, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

Abstract of the Decision.

Theatebs and shows, § 4 '—when death of spectator at motor-dome is shown not to be due to negligence. In an action to recover for the death of a spectator of motorcycling in defendant fair association’s motordome, due to a motorcycle rider being precipitated over the guardrail while deceased was standing on a walk at the top of the motordome at a place not reserved for spectators, evidence held insufficient to show that the motordome or motorcycle were defective or that the driver was incompetent, and that the death of deceased was not due to any negligence of defendant, there being evidence that some cigar ashes fell into the pit and got into the driver’s eyes, causing him to lose control over the machine and to be hurled from it, causing the injuries.


text:
    Moorman Manufacturing Company, Appellant, v. Frank Wilson, Appellee.
    Gen. No. 6,497. (Not to be reported in full.)
    Appeal from the City Court of Kewanee; the Hon. H. Steblinb Pomebov, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed February 12, 1918.
    Statement of the Case.
    Action by Moorman Manufacturing Company, plaintiff, against Frank Wilson, defendant, to recover $42 as the price of 600 pounds of Moorman Hog Remedy sold to defendant by plaintiff’s agent. From a judgment for defendant, plaintiff appeals.
    The action was commenced before a justice of the peace, where judgment was for the plaintiff. On appeal, defendant had judgment for costs on verdict of a jury.
    Charles E. Mulligan, for appellant.
    James H. Andrews, for appellee; Harvey J. Carson, of counsel.

      Abstract of the Decision.
    1. Sales, § 314

      —when no recovery may he had for article worthless for purpose intended. In an action to recover from the defendant the purchase price of a certain hog remedy sold him by plaintiff, plaintiff could not recover if the remedy was worthless for the purpose for which it was sold.
    2. Sales, § 328*—what are questions for jury in action to recover purchase price of hog remedy.' In an action to recover the purchase price of a certain hog remedy sold by plaintiff to defendant, held that whether the remedy was fed by defendant to his hogs according to directions given him and whether it had the effect upon his hogs stated by him were questions for the jury.
    3. Sales, § 329*—when shown that hog remedy did not have represented effect. Evidence held sufficient to warrant a finding that a certain hog remedy sold by plaintiff to defendant was sold upon certain representations as to its effect upon hogs and that it did not have such effect upon defendant’s hogs.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Presiding Justice Holdom

text:
    William Harden and Grace L. Harden, Defendants in Error, v. A. C. Whitman, Plaintiff in Error.
    Gen. No. 23,004.
    1. Conflict of laws, § 36

      —when law of forum governs as to statute of limitations in action on note. The limitation law as to an action on a promissory note made in one State and payable in another was that of the forum, although neither party at the time of the making of the note was a resident of the State of the forum.
    2. Limitation of actions, § 79*—when letter written after running of statute is insufficient to remove tar. A letter written by the maker of a promissory note after the statute of limitations had run thereon, referring to the writer’s hard circumstances and that he had debts which must be paid and expressing the hope that things might change for the better at no. distant day and the wish to help the payee of the note, was not such an express and unconditional promise to pay the note and did not show a present or future intention to pay it as to remove the case from the operation of the statute, and was not a recognition of the debt.
    3. Limitation of actions, § 86*—how promise to pay harreó, note may riot he raised. A promise to pay a note after the running of the statute of limitations thereon cannot be raised by implication of law, a new promise in writing being necessary.

      Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the March term, 1917.
    Reversed with judgment of nil capiat.

    Opinion filed December 17, 1917.
    John Early and A. D. Early, for plaintiff in error.
    Irving M. Western, for defendants in error; Frederic B. De Young, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action upon a promissory note for $1,000, which reads:

“1,000.00 Nashua, Fla., Feb. 1st, 1895.
“One year after date we promise to pay Mrs. Orlin Harden or order One Thousand Dollars, with interest at the rate of six per cent per annum until paid, value received.
“Due Feb. 1st, 96.
Mrs. S. M. Whitman,
A. C. Whitman.
“No...........Payable at Clinton, Wis.”

and is indorsed as follows:

“Interest paid May, 1899, Twenty Dollars.
Interest paid March, 1900, Forty Dollars.
For value received I assign all my interest in the within note to Wm. Harden and Grace L. Harden.
Orlin Harden.”

One of the makers, Mrs. S. M. Whitman, has, since the making of the note and before the commencement of the suit, died. The payee also died, leaving her surviving her husband, Orlin Harden, and the plaintiffs in this, suit, her son and daughter, her only heirs at law. Plaintiffs at the time of the commencement of the suit were the owners of the note. A judgment was entered by default and on motion vacated and defendant let in to plead, whereupon he filed an affidavit of merits, which, on motion, was stricken from the files and by leave of court he filed an amended affidavit of merits in which he set forth as a defense that the claim or cause of action sued upon did not accrue within 10 years prior to the time of the commencement of the action; that no new promise of payment and no payments have been made, orally or in writing, by defendant within 10 years prior to the commencement of the suit, and that promises were not made on the 28th day of October, 1915, or on divers dates before that time, as alleged in the statement of claim. Upon a hearing before the court there was a finding and judgment in favor of plaintiffs and against defendant for $2,185.50.

It will be observed that the note was made in Nashua, Florida, and was payable at Clinton, Wisconsin. Neither party at the time of the giving of the note was a resident of this State. The limitation law applicable to this case is the law of the forum, and on a written instrument the limitation in this State is 10 years.

Plaintiffs contend that the action is supported by a new promise and that the statute of limitations is avoided. The plaintiff, Grace L. Harden, testified to having written a letter to the defendant on December 29, 1914, regarding this note and requesting payment. At this time the statute of limitations had run as a bar to ¡the action. Defendant answered the letter under date of January 3, 1915, from Nashua, Florida, in these words:

“Tour favor of the 29th ult. is re’d & noted. I certainly wish that I could help you at the present time, but I have had all that I could do for the past three years to keep above ground. The past year has been the worst yet. It is true that there is a fairly good crop of fruit here, but it is bringing next to nothing & I have debts that must be paid. I very much regret that your father is so poorly. Hoping that things may change for the better at no distant day, I am,” etc.

We are unable to extract from this letter any express or unconditional promise to pay the note or that defendant evidenced any present or future intention to pay it. To take the obligation out of the operation of the statute of limitations there must be a new promise in writing. A promise to pay after the running of the statute cannot be raised by implication of law.

Neither are we able to extract from the letter of defendant a recognition of the debt. As said in Neustacher v. Schmidt, 25 Ill. App. 632:

“The agreement and expressions are too equivocal to take the case out of the statute of limitations. ‘ The evidence must be clear and satisfactory to overcome the bar of the statute.’ Wachter v. Albee, 80 Ill. 47; Carroll v. Forsyth, 69 Ill. 127. We regard the evidence offered by appellee to prove a promise in the first instance to pay * * * as being weak and unsatisfactory, and the evidence to support a new promise insufficient to sustain the verdict.”

As said in Carroll v. Forsyth, 69 Ill. 131:

“The law, as recognized by this court, is that to remove the bar of the statute of limitations it is incumbent on the plaintiff to prove an express promise to pay the money, or a conditional promise with a performance of the condition, or an unqualified admission that the debt is due and unpaid, nothing being said or done at the time rebutting the presumption of a promise to pay—it must be of such a character as to clearly show a recognition of the debt, and an intention to pay it. Parsons v. Northern Illinois Coal & Iron Co., 38 Ill. 433; Ayers v. Richards, 12 id. 148; Norton v. Colby, 52 id. 199.”

None of these legal requirements is present in this case. Walker v. Freeman, 209 Ill. 17.

The note is barred by the statute of limitations, Rev. St. ch. 83, ¶ 16 (J. & A. ¶ 7211), as no new promise to pay has been proven. In this condition of the record we must and do reverse the judgment of the Municipal Court, and a judgment of nil capiat will be entered in this court.

Reversed with judgment of nil capiat.


text:
    Alex Cedvilas and Mrs. Alex Cedvilas, Defendants in Error, v. John Sinkus, trading as J. Sinkus & Company, Plaintiff in Error.
    Gen. No. 23,355.
    1. Municipal Court of Chicago, § 19

      —when judgment rendered against defendant for default in failing to file affidavit of merits. Where, on motion of defendant, in the Municipal Court of Chicago, a judgment against him on default was vacated and the case reinstated and at the same time and hy the same order the amended statement of claim was stricken from the files and plaintiffs ordered to file a new amended statement of claim within 5 days and defendant ordered to file within 5 days thereafter an affidavit of merits thereto, held that all previous pleadings were disposed of by the terms of the order vacating the judgment, and final judgment was rightfully rendered against defendant because of his default upon his failure to file an affidavit of merits to the new amended statement of claim within the time, although his original affidavit of merits remained in the record.
    2. Municipal Court of Chicago, § 13*—when original affidavit of merits does not state meritorious defense. The original statement of claim held to state a cause of action and original affidavit of merits not to state a meritorious defense thereto.
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed December 17, 1917.
    Cantwell & Smith, for plaintiff in error.
    No appearance for defendants in error.

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

   Mr. Presiding Justice Holdom

delivered the opinion. of the court.

This writ of error is undefended.

On December 19, 1916, a judgment hy default for $200 was entered against defendant and in favor of plaintiffs. Ten days thereafter defendant moved to vacate the judgment. This motion was allowed and the judgment vacated and the cause reinstated. At the same time, and as a part of the same order, the amended statement of claim was stricken from the files and plaintiffs were ordered to file an amended statement of claim within 5 days and defendant was ordered to file an affidavit of merits thereto within 5 days thereafter. Plaintiffs filed an amended statement of claim within the time ruled, but defendant failed to file any affidavit of merits or to interpose any other defense. The judgment sought to be reversed by this writ of error was entered February 5, 1917, by default for want of an affidavit of merits or other defense being interposed by defendant to the amended statement of claim. These facts are not in dispute, but defendant insists that no judgment by default could be taken while his former affidavit of defense remained in the record, and relies in this contention upon Hine Bros. Co. v. Adams, 139 Ill. App. 92, which case is clearly distinguishable from the instant case.

The original judgment was vacated on defendant’s own motion. It was upon terms, one of which was that defendant should file an affidavit of merits within the time fixed by the order granting his motion. The terms upon which the original judgment was set aside disposed of all the previous pleadings. The cause started afresh, as it were, with a new statement of claim, to which defendant was ruled to answer by filing within 5 days after this latter statement of claim was filed an affidavit of merits. Failing to comply with this condition, defendant was in default and judgment was rightfully entered against him. Furthermore, we hold that the statement of claim stated a cause of action and that the affidavit of defense originally filed by defendant did not state a meritorious defense to such action. Therefore the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Leopold Mioduszewski, Defendant in Error, v. Stefan Spoganitz, Plaintiff in Error.
    Gen. No. 23,393. (Not to be reported in full.)
    Abstract of the Decision.
    1. Malicious prosecution, § 13

      —when advice of counsel affords protection. The advice of competent counsel made upon a full and fair disclosure of all the facts and circumstances involved in the case in which the advice of such counsel is sought is a justification for prosecution by the party advised and protection to him against being answerable in damages for malicious prosecution.
    2. Malicious prosecution, § 75*—when evidence shows probable cause to believe that plaintiff was guilty of crime. Evidence held sufficient to show that there was probable cause to believe that plaintiff was guilty of conspiracy and embezzlement with which he was charged on the complaint of defendant and that defendant might prudently have been so advised by his counsel for prosecution of plaintiff, in an action for malicious prosecution.
    Error to the Municipal Court of Chicago; the Hon. Patrick B. Flanagan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with finding of fact.
    Opinion filed December 17, 1917.
    Statement of the Case.
    Action by Leopold Mioduszewski, plaintiff, against Stefan Spoganitz, defendant, for malicious prosecution. From.a judgment for plaintiff for $1,000, defendant brings error.
    Maximilian J. St. George, for plaintiff in error.
    Walter J. Flens and Lee W. Carpenter, for defendant in error.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

3. Malicious pjbosecution, § 65*—what is not evidence of malice in prosecuting criminal case. The fact that defendant, in an action for malicious prosecution, exhibited some temper in discussing the supposed delinquencies of plaintiff was not' evidence of malice, where defendant had instituted the prosecution of a criminal case upon advice of competent counsel on a full and fair statement of all facts within defendant’s knowledge or which he could obtain on reasonable inquiry. ^

4. Malicious prosecution, § 65*—what is effect of termination of criminal prosecution as proof of malice or want of probable cause. The termination of a criminal prosecution in plaintiff’s favor, on account of which an action for malicious prosecution is brought, did not tend to prove either the element of malice or want of probable cause.


text:
    Joseph Elia, Plaintiff in Error, v. Frank Bavuso, Defendant in Error.
    Gen. No. 23,434.
    1. Execution, § 113

      —when may not be recalled or quashed. The County Court had no power, right or jurisdiction to recall or quash an execution issued on its judgment in favor of defendant on a set-off, notwithstanding a subsequent judgment in the Municipal Court for the same amount on garnishee process against the plaintiff and in favor of the defendant for the use of another.
    2. Evidence, § 112*—what is best evidence of judgment. A judgment cannot be proven by the affidavit of one who has examined the record, the best evidence being a certified copy thereof, and, when same is available, secondary evidence is excluded.
    3. Execution, § 114*—when notice to adverse party of motion after is essential. A court has no jurisdiction to enter an order after judgment quashing an execution, upon motion, without notice to the adverse party.
    4. Appeabance, § 10*—what does not constitute for client. The filing of a petition claiming an attorney’s lien upon a judgment in favor of a client and notice thereof’ to the judgment debtor cannot be construed as an appearance for the client but for the attorney’s individual interest, on motion by the debtor to quash execution issued on the judgment.

      Error to the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed December 17, 1917.
    A. G-. Dicus, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This writ of error is undefended. The defendant in error is, it is said, in Italy and an attempt to give him notice of this proceeding has failed, the notice having been returned undelivered.

This cause brings before us for review an order of the County Court of this county denying a motion to . recall and quash the execution sued out upon a judgment for $150 rendered in this cause on June 17, 1916, in favor of Bavuso, the defendant in a claim of set-off, and against Elia, the plaintiff in the suit.

The ground upon which the motion was made to recall and quash the execution is stated, in an affidavit of one A. Gr. Dicus, the counsel of record for plaintiff in error in this writ of error, to be that on June 20, 1916, a garnishee summons was sued out of the Municipal Court of Chicago entitled “Frank Bavuso for use of Morris Katz v. Joseph Elia”; that said summons was served upon Elia, and that such proceedings were thereafter had that on June 26, 1916, a judgment for $150 and costs was rendered in favor of Bavuso for the use of Morris Katz, Blia having answered in the garnishee case that he was still indebted on the judgment, supra. Of this proceeding in the County Court upon the motion to quash, no notice was given to or received by Bavuso. However, Bavuso’s attorneys, Wyman, Kinne & Carpenter, filed a petition claiming an attorney’s lien upon said judgment for their fees, which they set forth were reasonably worth the amount of the judgment, and that notice of such claim of lien was served upon Elia. One Wiley Stone made affidavit that he had examined the records and files in the Municipal Court in the alleged garnishee suit of Bavuso for the use of Katz v. Elia, that the garnishee summons issued was served on Elia, June 21, 1916, and that no appearance by Elia was entered prior to the last-mentioned date¿ as shown by the files and proceedings in that suit.

Counsel has failed to refer this court to any case supporting their contention that the County Court had power, right or jurisdiction to recall or quash- the execution issued on its judgment in favor of Bavuso and against Elia, and we are not cognizant of any case or any law that would have warranted the court in entering an order to recall and quash the execution. The garnishee judgment in the Municipal Court, if there was such a judgment, in no way superseded the judgment in the County Court, nor in any way affected its validity. Even conceding that both judgments were for the same amount would not affect the County Court judgment. Furthermore, there is no legal evidence in the record that there is any judgment in the Municipal Court as alleged. A judgment cannot be proven by the affidavit of one who has examined the record, the best evidence being a certified copy thereof, and when the best evidence is available secondary evidence is excluded. Moreover, we doubt whether the order denying the motion to quash the execution is appealable. The motion being made after the judgment was entered, the jurisdiction of the court to enter any order thereafter had in any event ceased, without the giving of notice of such motion to Bavuso. No such notice was given. • Bavuso’s attorneys having become hostile to him, their appearance cannot be construed to have been for their client, but for their own individual interest, which was hostile to that of their client.

It is contended that Wiley Stone appeared for Bavuso as his attorney. There is nothing in his affidavit or in the record which shows that Stone was an attorney at law or appeared for Bavuso, and his affidavit is antagonistic to Bavuso’s interests. On the contrary, the petition of Wyman, Kinne & Carpenter affirmatively shows that they were the attorneys of Bavuso in the County Court suit, and an affidavit of Vincent D. Wyman of said firm verifies this fact. In their brief counsel say: “The defendant, Frank Bavuso, appeared upon the hearing of said motion by his attorney and practically admitted that the affidavit setting forth the judgment of the Municipal Court was correct.” Both the abstract and the record fail to sustain this statement. Nor does it appear, either from Stone’s affidavit or in any other part of the record, that Stone was the agent and attorney for Bavuso, as stated in counsel’s brief. For aught the record shows to the contrary, the motion before us may have been denied for lack of the court’s jurisdiction of Bavuso, who neither appeared by counsel nor was given notice of such motion. The record is somewhat devious from an ethical and professional standpoint.

The order of the County Court denying the motion to recall and quash the execution was right and is affirmed.

Affirmed.


text:
    The People of the State of Illinois by Maclay Hoyne, State’s Attorney, ex rel. Mrs. John McMahon et al., Appellants, v. Edwin S. Davis et al., Appellees.
    Gen. No. 23,522.
    1. Quo warranto, § 25

      -—when petition for leave tó file information in nature of ex parte granted. The Circuit Court has jurisdiction to grant a petition for leave to file an information in the nature of a quo warranto to the members of an old school board to test the title to office of newly-appointed members and to order the information filed ex parte under Rev. St. ch. 112, sec. 1- (J. & A. 1 8687); but such practice is not commendable, since an ex parte hearing in any cause is contrary to the spirit of the law, and will not be tolerated except in an emergency which would, but for such ex parte action, jeopardize important interests.
    2. Quo warranto, § 30*—what is usual method of testing sufficiency of information in nature of. A motion to vacate the order granting leave to file an information in the nature of quo warranto is the usual and approved method of testing the sufficiency of such information.
    3. Quo warranto, § 30*—when order granting leave to file information in nature of may he set aside. Where it is made to appear to the court that the filing of an information in the nature of quo warranto has been inadvertently or improperly allowed under a misapprehension of the law or facts, the court has power, during the term, to set aside the order granting leave to file the information, and in hearing and deciding the motion the court is authorized to exercise judicial discretion, but the discretion Is not a 'personal, arbitrary one, but is a sound, judicial discretion, resting upon well-established rules of law.
    4. Continuance, § 29*—when quo warranto proceedings may he continued until next term of court. A quo warranto proceeding is no exception to that provision of the statute providing that “all causes and proceedings pending and undisposed of in any of said courts at the end of a term shall stand continued until the next term of the court,” and where a motion to vacate is filed during one term but the hearing thereon is not concluded, the proceedings may be continued to a following term and the case disposed of at such term.
    5. Schools and school districts, § 39*—what was nature of old school hoard of City of Chicago. The old school board of the City of Chicago, as it existed prior to the passage of the Act of April 20. 1917, was not a “body politic and corporate,” but simply a department of the government of the city.
    6. Schools and school districts—what was purpose of statute as to continuation in office of members of old board until qualification of members of new board. The purpose of section 2 of the Act of April 20, 1917, relating to school districts in cities of over 100,000 population, and providing that in cities wherein at the time the law shall' go into effect, there are members of the board of education holding office by appointment, such members shall continue in their offices until eleven persons have been appointed and qualified as members of the hoard of education under the act, was to avoid an interregnum between the old and new school board and to continue in force the management of the schools until the newly-appointed members qualified and took possession of their offices, and the old members did not become ipso facto’members of the new board, with, the power of organizing and appointing officers and employees.
    7. Municipal corporations, § 45

      —when powers of council as to appointment of school officers are exhausted. Under the Act of April 20, 1917, relating to schools in cities of over 100,000 population, providing that the board of education shall consist of eleven members, to be “appointed” by the mayor with the approval of the council, when the appointments are made by the mayor and approved by the council they are complete and the council’s power is exhausted in the premises, especially when the members appointed have qualified and attempted to enter upon the duties of their offices, the approval being in the nature of an executive rather than a legislative act, and, hence, the council was without power after the members had qualified and entered upon their duties to rescind its approval on a motion to reconsider, irrespective of what its rules may have provided.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed December 17, 1917.
    Maclay Hoyne, for appellant.
    Samuel A. Ettelson and Chester E. Cleveland, for appellees.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is»a controversy between the old^ and the new Board of Education of Chicago. The action is an information in the nature of a quo warranto. The petition is by the State’s Attorney of Cook county upon the relation of the members of the old board, with the exception of two of the old board who were reappointed upon the new, and as to whose reappointment thereto there is no controversy. The respondents are the nine members of the new board who claim to be such by appointment by the mayor of Chicago and confirmation by the city council, as the statute requires.

The act under which two of the members of the old board and the respondents were appointed was an emergency act, which went into force on the 20th day of April, 1917, on which day it was signed and approved by Governor Lowden, section 128 of the Act provided that:

“Each city having a population exceeding 100,000 inhabitants shall constitute one school district, which shall maintain a thorough and efficient system of free schools, which shall be under the charge of a board of education, which shall be a body politic and corporate, by the name of ‘Board of Education of the City of ............, ’ and by that name may sue and be sued in all courts and places where judicial proceedings are had. The said board of education shall consist of eleven members, to be appointed by the mayor, with the approval of the city council.”

Said section fixes the terms of the appointees at from 1 to 5 years and provides for the appointment of successors thereafter, all subsequent appointees to hold their term for the period of 5 years from the 1st day of May in the year in which they are appointed. It is further provided that:

“If any person so appointed shall fail to qualify within a period of thirty days after his appointment, the office shall be filled by a new appointment for the unexpired term: Provided, however, that in such cities wherein at the time this law shall go into effect there are members of a board of education holding office by appointment, such members shall continue in their office until eleven persons have been appointed and qualified as members of said board of education under this act.”

This section then provides.for the qualifications of members, etc.

Section 129 provides, inter alia:

“The board of .education shall elect annually, from its own number, a president and vice-president, in such manner and at such time as the board determines by its rules.”

The duties of president and vice-president are then prescribed, and it is then provided that ‘ ‘ The board of education shall also elect a secretary, prescribe his duties, term of office and compensation.” The board is also authorized by vote of a majority of the full membership to “appoint, as executive officers, a superintendent of schools, who shall have general charge and control, subject to the approval of the board, of the education department and of the employees therein of the public schools; a business manager, who shall have general charge and control, subject to the approval of the board, of the business department and of the employees therein of the public schools; and an attorney, who shall have general charge and control, subject to the approval of the board, of the law department and the employees therein of the public school system. Each of said executive officers shall hold his office for a term of four years. The board also may appoint, or provide for the appointment of, such other officers and employees as it may deem necessary, pursuant to the provisions of the civil service law, except as otherwise provided herein.

“The board shall, subject to the limitations contained in this act, prescribe the duties, compensation and terms of office of all officers. The board also shall, subject to the limitations contained in this act, prescribe the duties, compensation and terms of employment of all of its employee^ a,nd determine which of its officers and employees shall give bond, on what conditions, and in what amount.

“The appointment and removal of the superintendent of schools, the business manager and of the attorney, and all assistant attorneys, shall not be subject to the civil service law.” Then follows the provision for the removal of the last-named appointees.

This section further provides: “All appointments of other employees of the board of education, except as herein otherwise provided, shall be made pursuant to the provisions of the civil service law, and no civil service employee shall be removed except for cause.” The manner of the removal of the civil service employees is then provided for.

In the petition for leave to file the information the several provisions of the act are set forth. We regard the provisions which we have recited as sufficient for the purposes of our decision.

It is also averred that on the 20th day of April, 1917, the relators became and were ipso facto lawful members of the board of education under the prior act in force June 12, 1909. It is then averred that relators at a regular meeting of said board on May 23, 1913, May 29, 1917, June 6, 1917, June 13, 1917, and June 15,1917, among other things, awarded divers and sundry contracts for the purchase of sites for the erection of school buildings, hiring the employees of said board, etc., and paid and contracted to pay out to divers persons for work and labor done and materials furnished large sums of money and salaries to all officers and employees, “held the annual election of business employees, engineer-custodians, janitors, bathroom attendants, and truant officers;” and also elected the secretary and appointed the business manager, attorney and superintendent of schools of said board.

And it is further averred that the relators as such members of the board of education on and since the 20th day of April, 1917, have continuously performed all of the duties and functions and exercised the franchise and powers of and pertaining to officers of the board of education until the 19th day of June, 1917; that on that day, and continuously since then, the relators have been prevented by the respondents from performing the duties and functions and from exercising the franchise and powers of their said office. There is then set out the action on June 18, 1917, of the common council approving the appointments made by the mayor of the remaining nine members of the board. The proceedings are fully set forth, with the names of the aldermen voting both for and against confirming the appointments, also a substitute motion for such appointments, and to lay the motion to reconsider upon the table. The proceedings of the council at its next meeting thereafter, June 22, 1917, are then set out, in which a motion was made to adjourn until 6 o’clock p. m., and a substitute motion made “that, the council do now adjourn.” On the motion to adjourn the ayes and nays were demanded. Thereupon the mayor, being in the chair and presiding, put the motion “that the council do now adjourn” to a vive voce vote, and declared that the motion was carried and the council was adjourned. An appeal from the decision of the chair was then made. The mayor thereupon left the council chambers, all the aldermen remaining in their seats. It was then moved and carried that “Alderman Bichert do act as temporary chairman during the absence of the mayor from the council chamber.” This motion was seconded and carried, whereupon Alderman Bichert assumed the chair. The question being put: ‘ ‘ Shall the decision of the Chair on the motion to adjourn be sustained?” the yeas and nays on this motion were, 1 yea and 53 nays. The Chair then ruled that the decision of the mayor on the motion to adjourn had not been sustained and that the question before the council was a motion to adjourn, which being put was lost, yeas 1, nays 51. A motion was then made, which prevailed, that the mayor be notified that the council was in session, and thereupon a committee was appointed to notify the mayor that the council was in session, which committee returned and reported that it had waited upon the mayor and had informed him that the council was in session and that the mayor had answered that he was “much obliged” and that he would talk the matter over with the corporation counsel. It was then moved to take from the table the motion to reconsider the vote, made June 18, 1917, to concur in the nine appointments of membership on the board of education, which motion to reconsider had been laid upon the table June 18, 1917. The motion to take from the table the motion to reconsider it prevailed by yeas 46, nays 22. The Chair thereupon stated that the motion to reconsider the vote on the motion to concur in the nine appointments to membership on the board of education was before the council. It was then moved to lay'on the table the motion to reconsider. This motion was ruled out of order. The mover of the motion to reconsider then asked leave to withdraw that motion. The vote on this motion was yeas 21, nays ,46. A motion was made to adjourn, which was lost, yeas 19, nays 48. A motion to reconsider was then put and carried, yeas 46, nays 20. Thereupon the Chair stated that the question before the council was the motion to concur in the appointments to membership on the board of education of the nine appointees under consideration by the council. The previous question was then moved on the motion to concur in these appointments. The question being put on the motion for the previous question, the vote thereon was 43 yeas and 24 nays. Thereupon the Chair declared that the motion on the previous question was lost, for the reason that it required a two-thirds vote for its adoption. The Chair after overruling a point of order made that only a majority vote was needed to carry a motion for the previous question, put the question on the motion made June 18, 1917, to concur in the appointment to membership on the board of education, under consideration by the council, naming the appointees with their several terms of office. The vote thereon was yeas 22, nays 45, whereupon the Chair declared that the motion to concur was lost.

The petition then sets out the rules of the council, Rule 29 being as follows:

“A motion to simply lay a question on the table shall not be debatable; but a motion to lay on the table and publish, or any other condition, shall be subject to amendment and debate.
“A motion to take any motion or other proposition from the table may be proposed at the same meeting at which such motion or proposition was laid upon the table, provided two-thirds of the aldermen vote therefor.”

Roberts’ Rules of Order are also set out in the petition. It is then charged that the respondents on and since the 19th of June, 1917, have assumed and pretended to use, exercise, enjoy and perform and do assume and pretend to use, exercise, enjoy and perform, without warrant or authority of law, the franchises, functions, duties and powers of the said office of members of the board of education, and that the relators are the duly acting and lawful members of the board of education, and are lawfully entitled to perform and have the right to use, enjoy, exercise and perform the franchises, functions, duties and powers of the office of the members of said board of education, in accordance with law; that the respondents now and since the 19th day of June, 1917, are assuming and pretending to use, enjoy, exercise and perform said franchise, functions, duties and powers; and that respondents during all of the time aforesaid have usurped and do usurp upon the people aforesaid the powers, rights, etc., to their great damage and prejudicq.

On June 30, 1917, leave to file the information in the nature of quo waxranto was allowed ex parte and summons ordered issued returnable in 6 days.

On July 6, 1917, on motion of respondents, after hearing and deliberation by the court, it was ordered that respondents be given leave to file their notice and to enter such motion of record; that a motion to vacate the order granting leave to file the information be set aside, and that the petition for leave to file said information be dismissed and the proceeding be abated and dismissed.

On July 14, 1917, the motion to vacate and set aside the order granting leave to file the information in the nature of a quo warranto having been partially heard, was continued to the next term of court, and on July 19,1917, at the conclusion of the hearing it was ordered as follows:

“The motion of the respondents that the order granting leave to file the information in the nature of quo warranto herein be vacated and set aside and that the petition for leave to file said information be dismissed and that this proceeding be abated and dismissed, having been fully argued by counsel for the respective parties and considered by the court, it is
‘‘ Ordered, that said motion be and the same is hereby allowed and that said order granting leave to file said information be and the same is hereby vacated and set aside, and that said petition for leave to file said information be and the same is hereby dismissed and that this proceeding be and the same is hereby abated and dismissed and that the respondents go hence without day.”

From this judgment relators prosecute this appeal.

We will first dispose of the questions of procedure raised by the relators.

The court had jurisdiction to grant the petition and to order the information filed ex parte (section 1, ch. 112, Rev. St., title “Quo Warranto,” J. & A. ¶ 8687); but in a matter of so much public importance, and where the public officials involved and the law department of the city were so readily accessible, we doubt the expediency of so doing; more. especially is this manner of procedure undesirable, to say the least, when the • whole question involved, as in the instant case, could be—as it finally was—disposed of upon the averments of the information. An ex parte hearing in any cause, or in any of its stages of progression, is contrary to the spirit of the law and will not be tolerated except in an emergency which would, but for ex parte action, jeopardize important interests. A motion to vacate the order granting leave to file the information is the usual and approved method of testing the sufficiency of such information. By granting leave to file the information the court did not exhaust its discretionary powers regarding the filing of such information. It was according to well-established practice within the power of the court to entertain a motion to vacate such order, to proceed to determine the rights of the parties from the averments of the information, to pass upon the powers of the court, to set aside its order and to adjudicate the rights of the parties as they were made to appear from the pleadings; and if the court concluded that the averments of the information were insufficient to justify an award of the writ, it was its duty to vacate the order theretofore entered, and to enter an order denying leave to file the information and to dismiss the proceeding, which it did. People v. Wanmer, 276 Ill. 460. The rule governing such action is thus stated in the Wanmer case, supra:

“If it was made to appear to the court that the filing of the information had been inadvertently or improperly allowed under a misapprehension of the law or the facts, the court had power, during the term, to set aside the order granting leave to file the information. In hearing and deciding the motion the court was authorized to exercise discretion, but the discretion was not a personal, arbitrary one, but was a sound, judicial discretion, resting upon well established rules of law. (People v. Town of Thornton, 186 Ill. 162; People v. Mackey, 255 id. 144; People v. Union Elevated Railroad Co., 269 id. 212). The record does not exhibit any fact outside of or contrary to the averments of the petition which might properly influence the court in the decision of the motion, and it is not claimed that there was any such existing fact, so that the question to be determined is whether the petition shows sufficient ground for filing the information.”

People v. Union El. R. Co., 269 Ill. 212, is supporting authority for the rule laid down in the Wanmer case, supra,

Delators insist that the court was without jurisdiction to enter the order at a term succeeding the one at which the petition and information were filed. There is no force in this contention. The pleadings were filed and the motion to vacate partially heard at the June term and finally disposed of at the succeeding July term. On the last day of the June term, the hearing not being concluded, the respondents moved to continue the motion to vacate to the next term of court, which was allowed against the objection and exception of relators.

We think that a quo warranto proceeding is no exception to that provision of the statute which provides that “all causes and proceedings pending and undisposed of in any of said courts at the end of a term shall stand continued until the next term of the court. ’ ’ The motion to vacate being made at the same term of court at which the ex parte leave to file the information was granted was sufficient compliance with the quo warranto statute. The court not having concluded the hearing at the June term had a right to allow the motion to continue the further hearing to the next July term, and without such an order the statute would have automatically continued the cause for disposition- to the succeeding July term. We hold that the court had jurisdiction to enter at the July term the order which it did disposing of the quo warranto proceeding.

The contention that the nineteen remaining members of the- old board became, when the Act of April 20, 1917, went into effect creating the new board, ipso facto members of that board, is fallacious. The new act did not continue the old board and its organization, but created a new body politic and corporate, as clearly appears from the provision of the new act, which reads that “The city shall constitute one school district, which shall maintain a thorough and efficient system of free schools, which shall be under the charge of a board of education, which shall be a body politic and corporate,” the said board to consist of eleven members. The old board was not a body politic and corporate. It was simply a department of the government of the City of Chicago. Brenan v. People, 176 Ill. 620.

The relators insist, however, in support of their contention, that section 2 of the 1917 act, which reads, “Provided, however, that in such cities wherein at the time this law shall go into' effect, there are members of a board of education holding office by appointment, such members shall continue in their office until eleven persons have been appointed and qualified as members of said board of education under this act,” constitutes them members of the new board. This section of the act is not susceptible of any such construction. The evident purpose was to avoid an interregnum between the old and the new boards, between the department of the city.government under the old law and the body politic and corporate created by the 1917 act. It was a wise provision of the lawmakers, which was intended to continue after the act went into force the management and carrying on of the schools of Chicago until the new board of eleven members was appointed and qualified, when the members of the old board, automatically with the old board itself, disappeared and the eleven appointees under the 1917 act became and were the Board of Education of Chicago—a body politic and corporate—to whom the law had intrusted the management and control of the schools of Chicago.

The old board, in its attempt to appoint the employees and officers created by the act of 1917, clearly usurped the power and authority of the board created by that act, and their attempt so to do must be held to be abortive and their action in this regard null and void. There is, so far as the board of education as constituted under the act of 1917 is concerned, no question of the members of the old board being members of the new, either de jure or de facto. They were neither. As long as they served prior to the organization of the board under the act of 1917 they were members, not of the new board, but of the old, which continued to exist until, and only until, members of the new board had been appointed and qualified and had taken possession of their office. To hold otherwise would be, by legal interpretation, to permit the old board to foist upon the new its officers and employees, and to deprive the new board of the functions expressly given to it by the 1917 act—functions and powers which the old board did not possess.

We find nothing in the 1917 act which would warrant the court in holding that the old board could organize the new and appoint its officers and employees. So to do would defeat the very purpose of the act, which in terms abolished the old board and gave new and distinctly different functions to the new board. If relators ’ contention in "this regard could be sustained, the effect would be to hamper the new board in the performance of its duties and in the exercise of the powers given to it by the act creating it. It therefore follows that the actions of the old board in this regard were without warrant of law and void.

It appears that the nine respondents were appointed by the mayor to complete the eleven members of the. board of education as provided in the act of 1917 creating the new board; that their names were sent to the Common Council of the City of Chicago for approval; that the body approved of the appointments, as appears from the information recited in the first part of this opinion; that a motion to reconsider that vote was laid upon the table, and that at a subsequent meeting of the council an effort was made to take the motion to reconsider from the table and act upon it. A motion to adjourn was carried by the strong arm of the mayor aided by the gavel. The mayor, refusing to entertain an appeal from his ruling, abruptly left the council chamber. This did not operate to adjourn the council meeting. The members retained their seats, nominated a chairman pro tern to act in the absence of the mayor, notified the mayor of that fact, for which he said he was “much obliged,” but he failed to return, whereupon the council continued its deliberations and, after sundry preliminary motions had been made, finally voted not to approve of the mayor’s appointment of the nine members of the board, whose appointment it had approved at the previous meeting of June 18, 1917. It appears from the averments of the petition and information that these nine members qualified and proceeded to discharge the functions of their office prior to the next meeting of the council June 22, 1917. Having so done, the legality of their appointment rests upon the solution of two questions: First. When the council approved of the appointments did its power over the matter end? Second. If not, were the subsequent proceedings, by which the appointments of the mayor were disapproved, legal?

The proceedings of the council by which the appointments were approved were in all respects regular, and if the council had the power at a subsequent meeting of its body to reconsider its former action and to disapprove of the mayor’s appointments and to recall them, then, as such proceedings were in strict accord with the rules of the council, as well as with Roberts’ Rules of Order, the respondents are not members of the board. However, we are of the opinion that after the approval by the council of the mayor’s appointments, such appointments were complete and that the council could not reconsider its action at any subsequent meeting after the members had qualified by taking possession of their offices. Nor could the mayor, of his own volition, if at this time he had so desired, have withdrawn the appointments or removed the appointees. Neither the council nor the mayor could remove the appointees thereafter except in the manner prescribed in the act of the Legislature for the removal of members, under which the appointments were made.

Some stress is laid upon the meaning of the words “elect” and “appoint,” and it is argued that they are synonymous. However this may be, we think it of little importance in the determination of this case. It is our opinion, as applied to the act of 1917, that “to appoint” means “to select,” and" in compliance therewith the mayor selected the nine members and the council approved of such selection. Moreover, while this question is not free from doubt and difficulty, we are inclined to the view that under parliamentary usage, the council, when it acted upon- the appointments, exhausted its authority to further proceed in the matter, and it had no power to reconsider its former action of approval. The appointments of the respondents were complete when the council on June 18, 1917, approved such appointments. The approval of the appointments was in the nature of an executive act as distinguished from a legislative act, and neither the rules of the council nor Roberts’ Rules of Order was available to clothe the council with authority to reconsider and rescind its former action. The language of the act is that “The said Board of Education shall consist of eleven members, to be appointed by the mayor with the approval of the City Council.” When the appointments were made by the mayor and approved by the city council, they were complete and the council’s power in the premises was exhausted. Mc-Quillin and Dillon on Municipal Corporations are in harmony with and sustain our conclusion. In 2 Dillon on Corporations (5th Ed.), sec. 529, the author lays down the principle as follows:

“In electing to office it has been held that the vote given determines the result, and that a formal declaration by the mayor as presiding officer that the candidate has been elected is not essential, nor is a resolution by the board or council declaring the candidate to be elected. The weight of authority is also to the effect that when a completed vote has been taken which results in the giving of the necessary majority or plurality to one of the candidates, the council cannot rescind its vote or reconsider its action and elect another person.”

2 McQuillin, supra, sec. 614, gives the following illustration :

“A consideration of the acts of councils in electing, and appointing or confirming the appointment or nomination of officers and agents will fully illustrate the difference between a completed and incompleted act or vote in regard to the right of reconsideration and rescission. Thus, where the resignation of an officer was presented to the mayor to take effect at a future day, which resignation was accepted by the mayor and forwarded to the council which also accepted it, it was held that the act of acceptance of the resignation was complete and the council alone had no power to reconsider the action by which that body accepted the resignation. And in such case where the mayor, in accordance with the charter provisions, nominated a successor and sent the nomination to the council which confirmed the appointment, the council cannot at a subsequent meeting reconsider the vote by which .the nomination was confirmed.”

The following authorities support the rule as announced by McQuillin and Dillon: Whitney v. Van Buskirk, 40 N. J. L. 463; State ex rel. Childs v. Wadhams, 64 Minn. 318; State v. Phillips, 79 Me. 506; State ex rel. Burdick v. Tyrrell, 158 Wis. 245. In the Tyrrell case, supra, the court said:

“Moreover, after the election of relator, acceptance of the office, and qualification by him, the council had no power to reconsider and elect another.”

We think this principle is sustained by the reasoning in People v. Lower, 251 Ill. 527, in which the court said:

“It is true that an appointment is complete when the last act required of the appointing power has been performed, and the authority to make the appointment has then been exhausted. In such a case the appointing power cannot revoke the appointment, and the one appointed can only be removed by lawful authority.”

There is no fact stated in relators’ pleadings which would authorize the court to grant relief by way of a writ of quo. warranto. The relators have not only shown themselves not to be entitled to the offices which they claim, but the facts set forth by them demonstrate that the respondents were duly and legally appointed members of the board of education, the functions of which they entered upon and have since such appointment been performing.

There is no reversible error in this record, and the judgment of the Circuit Court is affirmed.

Affirmed.