text:
    Edward C. Schoettker et al., Appellees, v. Grand Lodge, Ancient Order of United Workmen of Illinois, Appellant.
    1. Judgment, § 145

      —when refusal to set aside default judgment not error. The refusal to set aside a default judgment was not error where the affidavit of merits, filed with the pleas after the entry of the judgment, merely stated that defendant had a good defense upon the merits to the whole of plaintiff’s demand, and thus failed to set up any defense.
    2. Judgment, § 106*—when judgment by default proper. Under section 55 of the Practice Act (J. & A. If 8592), requiring filing of an affidavit of merits by a defendant specifying the nature of his defense, a judgment by default was properly entered in the absence of an appearance or plea with an affidavit of merits.
    3. Appeal and ebbob, § 969*—-what recitals in record not considered. Recitals of the conclusions of the clerk in the record are extra-official, of no legal effect and cannot be considered by the court.
    4. Appeal and ebbob, § 951*—when recital expunged from record. A citation in the record of a default judgment that, as per the letter and request of a named attorney, such attorney was entered as attorney of record for defendant and his name placed as such attorney on the general docket and judge’s docket, was expunged from the record on the ground that it was merely an extra-official recital of the clerk which had no legal effect.
    Appeal from the Circuit Court of Sangamon county; the Hon. E. S. Smith, Judge, presiding. Heard in this court at the April term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 22, 1918.
    Rehearing denied April 3, 1919.
    Joshua R. H. Potts, for appellant; Bratton Gr. Richards and Arthur A. Olson, of counsel.
    Barber & Barber, for appellees.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

On August 22, 1917, Edward C. Schoettker, Harry J. Schoettker and Frank J. Schoettker, sons and only heirs at law of John H. Schoettker, deceased, brought their action in assumpsit against appellant to recover $2,000, the principal amount of tile certificate of insurance issued by the latter upon the life of said John H. Schoettker. The suit was brought to the September term of the Circuit Court of Sangamon county. On August 23,1917, more than 10 days before the first day of said September term, a declaration was filed together with a copy of the certificate sued upon and an affidavit of. amount due. Service was duly had on appellant, and on September 5, 1917, being one of the regular days of the September term, appellant was called and defaulted for want of any appearance or plea, and judgment was rendered against it in the sum of $2,000, interest and costs.

On September 11th pleas were filed by appellant, to which was attached an affidavit of merits executed by Joshua R. H. Potts, stating that he was the Grand Master Workman, an officer of appellant, and that he verily believes that appellant has a good defense to. this suit upon the merits to the whole of plaintiff’s demand. On September 17th appellant made a motion to set aside the default and judgment and for leave to plead. This motion was supported by certain affidavits, and upon a hearing before the court was overruled. To reverse the action of the court in overruling this motion, the appeal in this case is prosecuted.

In the record is this citation, “And afterwards, to-wit, on the 27th day of August, A. D. 1917, as per letter and request of Joshua R. H. Potts, he was entered • as attorney of record for defendant and his name placed as such attorney for defendant on the- general docket and the judges docket, as the same now appears of record.”

A motion has been tnade in this court to expunge the above from the record. A clerk cannot in a transcript of the record interpolate his conclusions of what the record shows. The transcript should be a correct copy of the record itself and the papers on file, and nothing else. Such recitals entered by the clerk are extra-official, of no legal effect and cannot be considered by this court. Gould v. Howe, 127 Ill. 251; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61; Stanberry v. Moore, 56 Ill. 472; Augustine v. Doud, 1 Ill. App. 588. The motion to expunge this extraneous matter from the record is allowed.

No appearance or plea with an affidavit of merits were on file when the default and judgment were taken, and at that time, under section 55 of the Practice Act (J. & A. jf 8592), appellees were entitled to their judgment. The affidavit of merits filed with the pleas after the judgment was entered does not comply with this section, which specifically provides that the affidavit should specify the nature of the defense. No defense of any kind was set out in the affidavit, and it was insufficient as an affidavit of merits. Rodgers v. Ridgley, 205 Ill. App. 22.

The court did not err in overruling the motion to set aside the default and judgment, and its judgment in overruling the motion is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr Presiding Justice Eldredge

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. W. E. Newsome, Plaintiff in Error.
    1. Criminal law, § 577

      —when points raised on motion to quash indictment regarded on appeal as waived. Points raised on a motion" to quash an indictment as presented to the trial court were considered as waived where not argued on review.
    2. Elections, § 240*—when, indictment for altering ballots sufficiently certain as to election district, etc. An indictment, charging the alteration of ballots by an election official in violation of the general election law at an election for State’s Attorney, charged with sufficient certainty to apprise defendant that there was á second election district of the election precinct of the named town, and that defendant was one of the election judges at the election.
    3. Elections, § 240*—when indictment for altering ballots not defective for failing to state qualifications of candidate. An indictment charging the alteration of ballots by an election official was not defective in failing to state the qualifications of the candidate for State’s Attorney, for whom the ballots were cast which defendant was charged with altering.
    4. Elections, § 2i0*^when indictment for altering ballots not fatally defective in matter of acts charged. An indictment charging an election official with alteration of ballots was not fatally defective because some of the acts set out might in and of themselves have constituted the violation of other statutes or other sections of the same statute than the one in question.
    5. Indictment and information, § 8*—when signing of indictment for violation of election law by special State’s Attorney proper. The signing of an indictment, charging an election judge with alteration of a ballot cast for one of the candidates for State’s Attorney, by a special State’s Attorney regularly appointed by the Circuit Court for the investigation of alleged violations of the election law, was proper.
    6. Criminal law, § 595*—when judgment of conviction not reversed. Where the proofs conclusively show defendant’s guilt, a judgment of conviction will not be reversed for errors which neither caused defendant to be deprived of some of his constitutional rights nor were vital to a fair and impartial trial.
    7. Elections, § 241*—when ballots admissible in evidence on prosecution for altering ballots. In a prosecution of an election judge for altering ballots, such ballots were properly admitted in evidence, although at the trial 6 months had elapsed since the election, and the proper preservation and the identification of the ballots were in dispute, as it was for the jury to determine what weight was to be given to the ballots under all the circumstances proven.
    8. Criminal law, § 460

      —when question not considered on appeal on account of insufficient abstract. In a prosecution of an election judge for altering ballots, alleged error in refusing to allow defendant to introduce in evidence the record of the board of supervisors for the purpose of showing that there was no order fixing the place of the election and no division of the town into districts, was not considered, where the abstract contained no preliminary proof regarding such record, nor'the record itself, nor anything in regard to its offer, from which the court could determine whether the ruling was correct or not.
    9. Elections, § 241*—when ballots admissible in evidence on prosecution for altering ballots. In a prosecution of an election judge for altering ballots, it was not error to admit in evidence the ballots in question, on the alleged ground that at the time of the trial 6 months had elapsed since the election and under the law the ballots should have been destroyed and had no legal existence, had not been properly preserved and were not identified, as the rule on the competency of the ballots in election contests had nothing to do with the competency of such ballots in a prosecution of the kind in question.
    10. Elections, § 241*—When supervisors’ record admissible in evidence on prosecution for altering ballots. In a prosecution of an election judge for altering ballots, the record of the supervisors showing the appointment of defendant as such judge was properly admitted, as it was the best evidence of the fact.
    11. Criminal law, § 425*—when error in connection with custody of jury will be considered on appeal. Error in permitting the jury in a criminal case to retire in charge of an unfeworn officer will only be considered where, if the officer was not in fact sworn, defendant objected to the irregularity at the time, and if not corrected by the court, took a bill of exceptions.
    12. Criminal law, § 388*—when sentence on conviction under indictment containing several counts sufficient. The different counts of the indictment for violation of the election law in question charged but one offense, although different acts were alleged constituting the offense charged in the several counts; and therefore sentence was not required to be imposed upon each count.
    Error to the Circuit Court of Montgomery county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed October 22, 1918.
    Rehearing denied April 3, 1919.
    George P. O’ Brien and J. H.■ Atterbury for plaintiff in error.
    Amos Miller, for defendant in error; J. B. Mc-Davtd, of counsel.

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

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

   Mr Presiding Justice Eldredge

delivered the opinion of the court.

Plaintiff in error was convicted upon an indictment charging a violation of section 86 of the General Election Law of 1872 (section 86, ch. 46, Hurd’s Bev. St., J. & A. ft 4812). He was sentenced on the verdict to confinement in the county jail for 260 days and to pay the costs. By this section it is provided: “If any judge of any election shall permit a person to vote whose vote is challenged, without the proof required in this act; or, * * *, 6th. Shall be guilty of any fraud, corruption, partiality or manifest misbehavior; * * * shall, on conviction thereof, be fined in a sum not exceeding $1,000, or imprisoned in the county jail not exceeding one year, or both, in the discretion of the court.” The indictment consisted of fourteen counts. A motion was made to quash the indictment and each count thereof, which was overruled as to all counts except the thirteenth, to which it was sustained. The first alleged error presented for consideration is the action of the court in overruling the motion to quash the remaining counts of the indictment. On the motion, as presented to the trial court, many points were raised, which are not argued here, and must therefore be considered as waived. The first count of the indictment appears in the abstract, and this is as follows :

“The Grand Jurors, chosen, selected and sworn in for the County of Montgomery, in the name and by the authority of the People of the- State of Illinois, upon their oaths present that William E. Newsome, late of the County of Montgomery and State of Illinois, on the seventh day of November, in the year of our Lord one thousand nine hundred and sixteen, at and within the County aforesaid, at a general election being held in the second election district of the election precinct, of the Town of North Litchfield, in the County of Montgomery aforesaid, for the election of a State’s Attorney, in and for the County of Montgomery aforesaid, and State of Illinois, and for other County and State officers, then and there being lawfully held, at which election one Frank M. Eamey and one J. Earl Major were opposing candidates for the office of State’s Attorney for the County of Montgomery and State of Illinois, aforesaid, and the name of the said Frank M. Eamey and also the name of the said J. Earl Major appeared and were upon the official ballot, used at said election in the said election district, as candidates for the said office of State’s Attorney, respectively, and at which election the said William E. Newsome was then and there duly appointed, qualified and was acting as one of the judges of said election; and that during’ the canvass of the official ballots legally cast by the electors in said election district at said election, he, the said William E. Newsome, was then and-there guilty of fraud, corruption, partiality and manifest misbehavior in this, that he, the said William E. Newsome, did then and there unlawfully, wilfully, fraudulently and corruptly change and alter a certain official ballot which had been then and there legally cast by an elector of said district for the said J. Earl Major for the office of State’s Attorney aforesaid, and was then and there being canvassed by the duly appointed Judges of the district aforesaid, by then and there making a cross or mark in the square on the line with and immediately preceding the name of the said Frank M. Barney, who was a candidate for the office of State’s Attorney as aforesaid, with intent then and there, to defraud and deprive the elector who cast said official ballot at said election for the said J. Earl Major, for the office of State’s Attorney aforesaid, of his vote as he, the said elector who cast said official ballot then and there intended, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois.”

It is urged that the indictment is faulty in that it fails to aver that there was a second election district of the election precinct of the Town of North Litch: field, or that J. Earl Major possessed any of the necessary qualifications required of a State’s Attorney, if elected. The indictment charges with sufficient certainty to apprise defendant that there was a second election district of the election precinct of the Town of North Litchfield, and that he was one of the judges at a general election held therein on that day. What the qualifications of J. Earl Major were had no connection whatever with the crime charged. The offense .was a violation of the election law committed by plaintiff in error as a judge of the' election, and not a private offense against a candidate.

It is next urged that the indictment does not charge plaintiff in error with doing any act that constituted fraud, corruption, partiality or manifest misbehavior, because the acts alleged charging such constituted another and distinct offense, under section 82 of the Act (J. & A. 4808), which makes it an offense to change -the ballot of an elector. The offense for which plaintiff was indicted was corruption, partiality or misbehavior while acting as judge of the election. The indictment proceeds to set out the specific acts constituting such fraud, corruption, partiality and misbehavior, and it can make no difference that some of such acts set out in the indictment may in and of themselves have constituted the violation of other statutes or other sections of the same statute.

The indictment is signed by a special State’s Attorney, who was regularly appointed by the Circuit Court to act as such for the purpose of investigating and prosecuting alleged violations of the election law at the general election held November 7, 1916. There was no error in this. Lavin v. Board of Com’rs of Cook Co., 245 Ill. 496; People v. McCann, 247 Ill. 143; People v. Northup, 184 Ill. App. 638.

It is contended that several errors were committed on the trial of the case, but the proofs so conclusively show the guilt of the plaintiff in error that unless he was deprived of some of his constitutional rights, or such errors were vital to a fair and impartial trial, the judgment cannot be reversed.

It is insisted that the court erred in admitting in evidence the record of the supervisors showing the appointment of William Newsome as an election judge. No better evidence could have been produced of this fact, and the proofs show the plaintiff in error acted as such election judge and qualified by taking the prescribed oath.

It is next urged that the ballots alleged to have been altered by plaintiff in error were admitted in evidence. It is claimed that at the time of the trial 6 months had elapsed since the election and that under the law the ballots should have been destroyed, and they had no legal existence at that time; also that the ballots .had not been properly preserved, and that none of them was identified by any witnesses. Whatever may be the rule on the competency of ballots in cases of election contests, such rule has nothing to do with the competency of such ballots in a criminal prosecution of this character. They were admissible in evidence, together with the evidence of the manner in which they had been preserved for what they were worth, and it was for the jury to determine what weight should be given to them as evidence under all the circumstances proven, and it was also wholly immaterial what time had elapsed since the election.

It is complained that the court erred in refusing to allow plaintiff in error to introduce in evidence the record of the board of supervisors for the purpose of showing that there was no order fixing the place of the election and no division of the town into districts. The abstract does not contain any preliminary proof in regard to this record, nor the record itself, nor anything' in regard to the offer thereof, from which we can determine whether the ruling of the court was correct or not.

The objection to the instructions given for defendant in error are without merit, and there was no error in refusing the two refused instructions on behalf of plaintiff in error.

It is next urged that the court permitted the jury to retire in charge of an unsworn officer. This question was sought to be presented on the motion for new trial by the affidavits of defendant and his counsel, the latter making their affidavits upon information and belief. The record shows that the officer was sworn. In any event, no objection was made by plaintiff in error or his counsel at the time. “If the officer was not, in fact, sworn, the defendants should have objected to the irregularity at the time, and if not corrected by the court, have taken a bill of exceptions. ’ ’ Dreyer v. People, 188 Ill. 40.

It is next urged that the judgment is defective in that there should have been a sentence imposed upon each count of the indictment upon the theory that each count presented a separate and distinct offense. The different counts in the indictment charge but one offense, although different acts were alleged constituting that offense, in the several counts.

The abstract filed by plaintiff in error in this court is very meager and insufficient. Defendant in error has filed an additional abstract and has made a motion to tax the costs thereof to plaintiff in error. This additional abstract was necessary and the motion is allowed.

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

Affirmed.


author: Mr. Presiding Justice

text:
    Wiley Fowler, Appellant, v. David Cade, Appellee.
    1. Instructions, § 96

      —-when instruction on credibility of witnesses erroneous. An instruction on the credibility oí witnesses, stating that it was for the jury to determine from the manner of the witnesses, the reasonableness or otherwise of their testimony and their means of knowing, if shown by the evidence and all other circumstances tending to aid them in weighing the testimony, etc., was erroneous as it did not confine the jury to the evidence in the case in determining the credibility of the witnesses.
    2. Instructions, § 114*—when instruction as to allegations required to be proven erroneous. An instruction stating that plaintiff must prove each material allegation in the declaration and hill of particulars by a preponderance of the evidence was erroneous, as proof of the material allegations in any one of the counts would have been sufficient, and the bill of particulars was neither part of the declaration nor of the record and controlled in no way the weight of the evidence.
    3. Pleading, § 337*—what is object of bill of particulars. The bill of particulars is no part of the declaration and no part of the record and controls in no way the weight of the evidence, its only object being to limit the proof upon the trial to the items mentioned therein.
    4. Pleading, § 395*—what allegations required to be proven. Proof of the material allegations in any one of a number of counts of the declaration by a preponderance of the evidence is sufficient to entitle a plaintiff to recover.

      5. Animáis, § 48

      —when instruction in action for killing sheep erroneous. In trespass for the killing of plaintiff’s sheep by defendant’s dogs, it was error to instruct that if the evidence had not proven by the greater weight the identity of the dog or dogs which caused the injury, it was the duty of the jury to find the defendant not guilty, as in this class of cases there might be ample proof that the dogs had killed the sheep without positive identification of each particular dog which did it.
    6. Instructions, § 87*-—•when instruction on degree of proof required erroneous. An instruction which required the jury to be convinced by the proofs was erroneous.
    7. Animals, § 12*—who liable for killing of sheep by pack of dogs. Where two or more dogs engage as a pack in killing or worrying-sheep, the owner of any one of the dogs so engaged is liable for the whole of the damage done.
    8. Animals, § 40*—when variance in action for killing sheep should have been obviated by amendment. In trespass for killing, wounding and worrying sheep, by dogs, where the declaration charged in each count that the damage was done by two dogs owned by defendant, and there was some evidence tending to show that one of the dogs was not owned by the defendant, the variance should have been obviated by amendment.
    Appeal from the Circuit Court of Champaign county; the Hon. Franklin H. Boggs, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded.
    Opinion filed October 22, 1918.
    Rehearing denied April 3, 1919.
    Little & Finfrock and O. B. Dobbins, for appellant.
    F. M. Green and Green & Palmer, for appellee.

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

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

   Mr. Presiding Justice

Eldredge delivered the opin- . ion of the court.

Appellant brought his action in trespass on the case against appellee to recover damages for the killing, wounding and worrying of certain sheep of appellant by the dogs of the latter. The jury rendered a verdict in favor of appellee, and from the judgment thereon this appeal is taken.

As the judgment must be reversed for errors of law, the weight of the evidence will not be discussed. The third instruction tells the jury that they are the sole judges of the evidence and of the credibility of the witnesses, and, “it is for you to determine from the manner of the witnesses when testifying, the reasonableness or otherwise of their testimony and their means of knowing, if shown by the evidence, and any and all other circumstances tending to aid you in weighing the witnesses’ testimony and determining the weight to which the same is entitled, and if you believe that any witness has wilfully testified falsely, to any material fact in issue, you are at liberty to disregard his entire testimony, except in so far as it may be corroborated by other credible evidence in the case.” This instruction does not confine the jury to the evidence in the case in determining the credibility of witnesses, but permits them to determine this question upon their own ideas of the reasonableness of their testimony and from all other circumstances, whether shown by the evidence or not. Such an instruction permits the jury to determine the credibility of witnesses on matters entirely outside of the evidence in the case. Hartshorn v. Byrne, 147 Ill. 418; Hartford Life & Annuity Ins. Co. v. Gray, 80 Ill. 28; Ames v. Thren, 136 Ill. App. 568; Balenovic v. Ansick, 181 Ill. App. 660; Ryan v. People, 122 Ill. App. 461.

The fourth instruction states that the plaintiff must prove each and every material allegation in the declaration and bill of particulars by a preponderance of the evidence in order to recover. The declaration consists of five counts. Proof of the material allegations in any one of these counts by a preponderance of the evidence would have been sufficient to have entitled the plaintiff to recover. The bill of particulars is no part of the declaration and no part of the record, and controls in no way the weight of the evidence. Its only object is to limit the proof upon the trial to the items mentioned therein,

The sixth instruction states, “that if the evidence in this case has not proven by the greater weight thereof the identity of the dog or dogs which caused the injuries to the lambs in question, then in that event of the proof it is your duty to find the defendant not guilty. ’ ’ The principle intended to- be conveyed by this instruction is difficult to determine. In cases of this character there might be ample proof that the dogs of a defendant had killed the lambs of the plaintiff without positive identification of each particular dog which did the killing. There is no law authorizing such an instruction.

The eighth instruction tells the jury, among other things, “but in case you should find for the plaintiff on any one or more of the material allegations of his declaration and bill of particulars, you should do so only where you are convinced of such fact or facts ’by the preponderance or greater weight of the evidence, ’ ’ etc. A jury is only required to believe from the preponderance of the evidence and does not have to be convinced or satisfied by the proofs. Hoener v. Koch, 84 Ill. 408; Gooch v. Tobias, 29 Ill. App. 268; Ruff v. Jarrett, 94 Ill. 475; McDeed v. McDeed, 67 Ill. 545; Crabtree v. Reed, 50 Ill. 206.

The ninth instruction also tells the jury that the plaintiff cannot recover unless he has proven by a preponderance of the evidence the items set out in the bill of particulars.

Instructions 15 and 16 tell the jury that the plaintiff cannot recover for any damages that were not actually occasioned by the dog or dogs which were owned by the defendant. We held in the case of Dole v. Hardinger, 204 Ill. App. 640, that each owner of a dog engaged in doing the damage is liable for the whole amount of the damage done. If two or more dogs engage as a pack in killing or worrying sheep, the owner of any one of the dogs so engaged is liable for the entire damages.

. The declaration, charges in each count that the damage was done by two dogs owned by the defendant, and there is some evidence tending to show that one of the dogs was not owned by the defendant. In order to avoid a charge of variance between the allegations and the proofs, leave should be granted to the plaintiff to amend his declaration, if he so desires.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Graves

text:
    Maude E. Beebe, Appellant, v. Doris Kirkpatrick et al., Appellees.
    1. Insane persons, § 25

      —when guaranty by conservator presumed to have been honest. The rule that when the acts of men are capable of two constructions, one that they are fair and honest and the other that they are fraudulent, courts will adopt the first theory and will not presume a fraudulent purpose, applied, and the presumption was indulged that when a conservator of an insane person, who obtained credit for the amount of certain notes from the estate of his ward, placed his guarantee ,on the notes, he intended to make them good by placing his estate behind them, and that he intended the indorsement to be a general unconditional guaranty, and did not intend that Ms liability thereon should depend upon the prosecution of a suit by a bona fide purchaser, when he had procured the making of the notes by one whom he knew to be worthless, or the foreclosure of the mortgage given as security which he knew was insufficient, and the property, covered by which he had caused to be conveyed to the maker.
    2. Insane persons, § 29*—when heirs of conservator required to account to third person. The heirs of a conservator of an insane person, which conservator asked for and obtained credit for the amount of notes which were secured by mortgage that was insufficient security and which were guaranteed by such conservator, were held liable to an accounting as to assets received by them from the estate of such conservator at the suit of an innocent purchaser for value, where such conservator had procured the execution of the note and mortgage to be made, knowing the maker to be worthless and the property which he had caused to be conveyed to such maker to be worth far less than the amount of the notes.
    3. Insane persons, § 29

      —when third person may recover against heirs of conservator. Where a conservator of an insane person procured property to be conveyed to a third person and caused him to execute notes and a mortgage of such property to secure the notes, for a nominal consideration, and where such conservator personally received the benefit from the transaction, and subsequently indorsed his guaranty on the note and asked for and received credit in his account as conservator, all with knowledge that the maker of the note was worthless and that the property was- worth far less than the amount of the notes, a bona fide purchaser for value before maturity was entitled to recover from the heirs of said conservator, to whom the assets of his estate had been delivered, the amount of such notes, after tendering the notes and mortgage.
    Appeal from the Circuit Court of McLean county; the Hon. Sain Welty, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded with directions.
    Opinion filed October 22, 1918.
    Rehearing denied April 3, 1919.
    William: B. Bach, for appellant.
    Stone & Dick, 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 fppic and section number.

   Mr. Justice Graves

delivered the opinion of the court.

Appellant filed her bill in chancery in the Circuit Court of McLean county, in which she charges that she is the owner and holder of two promissory notes, each for the sum of $1,250, signed by J. W. Bishop, payable to the order of Henry S. Dooley in 3 years from their date and drawing 6 per cent annual interest, payable annually; that on the back of each of these notes is indorsed the words “I hereby guarantee this loan. Henry S. Dooley”; that appellant purchased these notes before maturity from the administrator of the estate of Mary A. Brown, now deceased, who was in her lifetime a distracted person; that these notes show on their face that they were secured by a mortgage on real estate; that when they were given, Henry S. Dooley was the conservator of the said Mary A. Brown, now deceased, but then a distracted person; that shortly after these notes were given he placed the indorsement and guaranty on them as it now appears and turned them over to himself as such conservator and thereupon made a report of such transaction to the County Court of McLean county, and asked for and received credit in his account as such conservator for the amount of money paid out by him for said notes; that at the time said notes were given, J. W. Bishop, who signed these notes, was a “straw man” and was worthless at the time he obtained the property described in the mortgage that was given to secure these notes; that the property so mortgaged was worth much less than the amount of the notes; that Henry S. Dooley procured said property to be conveyed to Bishop and said notes and mortgage to be executed by him without more than a nominal consideration to Bishop; that Dooley received the benefit from this transaction personally; that these facts were unknown to appellant at the time she purchased the notes, and that she is a bona fide innocent purchaser of said notes for value before maturity; that both J. W. Bishop and Henry S. Dooley are dead; that they died before the maturity of said notes; that Bishop had no property whatever when .he died and that the property of the said Henry S. Dooley has been administered upon and distributed to appellees, who are his heirs, and that none of it is now available for the payment of these notes; that these appellees have each received out of the estate of Henry S. Dooley, deceased, more property than would be required to pay these notes; that the inventory filed in his estate did not include all of his property; that more property was omitted from that inventory than would be required to pay these notes and that such property so improperly omitted from such inventory has been divided between these appellees; that appellees have been asked by appellant to pay these notes out of the property of the said Henry S. Dooley, deceased, so received by them and to account therefor, but they refuse, and that appellant has offered in that connection to assign and turn said notes and mortgage over to appellees. The bill prays for an accounting as to the assets received by appellees from the estate of the said Henry S. Dooley, deceased, and that appellees be ordered to pay these notes out of the property so received by them from the said estate. A demurrer to this bill was sustained and the bill was dismissed by the Circuit Court. For the purpose of determining whether the demurrer was properly sustained, the averments in the bill must be treated as true.

From the averments in the bill it follows that Henry S. Dooley, at the time he wrote the guarantee on these notes and turned them over to himself as conservator of Mary A. Brown, knew that they were not good without such guaranty, and that to invest his ward’s money in negotiable paper that he knew was not good would be a fraud upon his ward. He was about to ask the County Court to approve his acts in investing the money of his ward in these notes. He knew that if he procured such an approval of that investment when he knew the notes were not good he would be perpetrating a fraud upon the court. When the acts of men are capable of two constructions, one that they are fair and honest and the other that they are fraudulent and dishonest, courts will adopt the first theory and will not presume a fraudulent purpose. It must therefore be presumed from the facts averred in this bill that when Henry S. Dooley placed the guaranty on the notes in question he intended to make them good by placing behind them his own estates, and that he intended the indorsement to be a general unconditional guaranty and did not intend that his liability thereon should depend upon the prosecution of a suit to collect the debt against the maker of the notes whom he knew to be worthless, or the foreclosure of a mortgage that he knew was insufficient security. Such a guaranty must be construed to be and is an unconditional contract, by which the guarantor undertakes to see to it that the note will be paid when due, not that it can be collected by suit or out of some security. Holm v. Jamieson, 173 Ill. 295; Gage v. Mechanics’ Nat. Bank of Chicago, 79 Ill. 62.

The demurrer to the bill was improperly sustained. The decree of the Circuit Court is reversed and the cause is remanded with directions to overrule the demurrer.

Reversed and.remanded with directions.


text:
    Charles P. Brown, Appellant, v. B. F. Tucker and Central Illinois Public Service Company, Appellees.
    1. Malicious prosecution, § 78

      —when evidence sufficient to support judgment for defendant. A judgment for defendant in malicious prosecution was sustained, where a story involving plaintiff in a theft was carried to the defendant and a third person and both carried it to the State’s Attorney, and where the latter called all the parties, including defendant, before him and where the latter fairly laid all the information he had before the State’s Attorney, including its source, and where the State’s Attorney not only advised but directed the making, of the arrest without further investigation, and where the case against plaintiff was dismissed after several continuances.
    2. Malicious prosecution, § 14*—when arrest of person on charge of crime for examination only improper. The arrest of men on charges of crime by or at the instance of public officers, for the purpose of plying them with questions or of giving them what is sometimes called the “third degree,” when such officers are not in possession of tangible proof to cause a well-grounded belief that the one arrested is the right party, was termed reprehensible and an abuse of the processes of the court that should not be tolerated.
    3. Malicious prosecution, § 13*—when one acting on advice of counsel protected. When a prosecuting witness before beginning a case goes to a competent attorney and discloses to him in good faith all of the facts and information he has as to a supposed offense as well as the source of his information, and then acts on the advice of such attorney and starts a criminal prosecution, he will be considered as having had probable cause for instituting such prosecution, even if afterwards the party charged is found to be not guilty of the offense charged.
    4. Malicious prosecution, § 8*—when one having probable cause protected. When the prosecuting witness has probable cause for instituting a criminal prosecution, a suit for malicious prosecution will not lie.
    Appeal from the Circuit Court of Coles county; the Hon. John H. Marshall, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed October 22, 1918.
    Rehearing denied April 3, 1919, and opinion modified and refiled April 23, 1919.

      Frank T. 0 ’Hair and H. A. Neal, for appellant.
    'Vause, Hughes & Kiger, for appellees.

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

   Mr. Justice Graves

delivered the opinion of the court.

On September 6, 1917, appellant Brown was arrested and lodged in jail on complaint of appellee B. F. Tucker, who was superintendent of the Central Illinois Public Service Company. In that complaint appellant was charged with larceny of copper wire from the Central Illinois Public Service Company. On the morning of September 7th, appellant demanded an immediate hearing, but it was denied him and his case was then set for hearing.for September 20th. On that morning the hearing was adjourned to the next morning, September 21st. When the case was called for hearing on the last-named morning it was dismissed by the State’s Attorney. On neither of these occasions did any prosecuting witness appear. Later this suit for malicious prosecution was brought and in due time was tried. The verdict of the jury and the judgment which followed are in favor of the defendant. Briefly stated, the facts disclosed at the trial are: wire, the property of the Central Hlinois Public Service Company, had been stolen. Later the mother of the wife of a deceased brother of appellant Brown told a man by the name of Miller, who was an employee of the Central Illinois Public Service Company, that “somebody” had told her husband that a boy by the name of Gillan, if he was paid $100, “could prove” that appellant Brown had taken the wire. This story was earned by Miller to appellee Tucker and Tucker and Miller carried it to the State’s Attorney of Coles county. The State’s Attorney of Coles county decided to have the parties, including Gillan and Brown, arrested at pnce without investigating the story further, and have all the persons charged brought in and then have an “interview with Grillan and see if he would reveal” who the persons were who were stealing the wire. The record satisfactorily shows that Miller and Tucker fairly laid before the State’s Attorney of Coles county all the information they had in the matter and its source; that before they went to the State’s Attorney, Tucker said to Miller: “We will go to the State’s Attorney and advise him of the conditions and facts that we know, and abide by what he says”; that the State’s Attorney not only advised the arrest and directed the making of the complaint but told Tucker and Miller not to make any investigations but to go before the police magistrate and swear to the complaint. Following the advice of the State’s Attorney, Tucker signed and swore to the complaint. It also appears from the evidence that the State’s Attorney had at one time the reputation of being a competent attorney in good standing for ability, prudence and fairness. When a prosecuting witness before beginning a case goes to a competent attorney and discloses to him in good faith all the facts and information he has as to a supposed offense as well as the source of his information, and then acts on the advice of such attorney and starts a criminal prosecution, he will be considered as having had probable cause for instituting such prosecution, even if afterwards the party charged is found to be not guilty of the offense charged. Schattgen v. Holnback, 149 Ill. 646; Murphy v. Larson, 77 Ill. 172; Anderson v. Friend, 71 Ill. 475; Palmer v. Richardson, 70 Ill. 544; Wicker v. Hotchkiss, 62 Ill. 107.

When the prosecuting witness has probable cause for instituting a criminal prosecution, a suit for malicious prosecution will not lie. Glenn v. Lawrence, 280 Ill. 581-587.

The evidence in this case clearly shows that appellees acted with the utmost good faith and with probable cause. The verdict of the jury is in accord with the weight of the evidence.

We do not wish to be understood by this opinion as placing the stamp of approval upon the practice indulged in, in this case, in directing the arrest of the persons named in the complaint without further investigation of what was a mere suspicion based on wild rumor. The arrest of men on charges of crime by or at the instance of public officers, for the purpose of plying them with questions or óf giving them what is sometimes called the “third degree,” when such officers are not in possession of tangible proof sufficient to cause a well-grounded belief that the one arrested is the right party, is a reprehensible practice and is an abuse of the processes of the courts that should not be tolerated. The fact that men on whom that system is usually practiced are as a rule men without money, friends or a knowledge of their rights, exaggerates the evil. There is no doubt in our minds that appellant was done a great wrong by his arrest, but it- is quite as clear that appellees were innocent of any malice, and that they acted with probable cause as defined by the cases cited. The evil lies further back.

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Waggoner

text:
    E. D. Jones, Appellant, v. Clark County, Appellee.
    State’s Attorney, § 9

      —what maximum amount of compensation in certain counties. Under section 1 of the Act fixing and providing for the payment of the salaries of State’s Attorneys providing that in counties having not to exceed 30,000 inhabitants, $100 per each 1,000 inhabitants, and major fraction thereof, be paid the State’s Attorney in addition to the amount allowed by the State, but providing that the maximum sum to be paid to any State’s Attorney in such county shall not exceed $2,§00, and under section 3, providing that the salaries of State’s Attorneys excepting that part to be paid by the State (i. e., $400) shall be paid out of the treasury of the county of the State’s Attorney’s residence, the highest amount per annum which the State’s Attorney of a county having 23,517 inhabitants could justly claim was $2,500 from the State and county.
    Appeal from the Circuit Court of Clark county; the Hon. Walter Brewer, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed October 22, 1918.
    Rehearing denied April 3, 1919.
    E. D. Jones, pro se, and Shepherd, Trogdon & Dole, Joseph B. Crowley and Wilber H. Hickman, for appellant.
    Olen B. Clements and Graham & Snavely, for appellee.

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

   Mr. Justice Waggoner

delivered the opinion of the court.

On June 4, 1917, E. D. Jones, the appellant, presented to the Board of Supervisors of Clark county, Hlinois, a claim of $1,200 for unpaid salary as State’s Attorney of said county for four years, beginning December 2, 1912, during which time he had held such office.

The claim was disallowed by the Board of Supervisors. An appeal was taken to the circuit court, a jury waived and the cause submitted to the court on a written stipulation as to the facts. A judgment was rendered in the circuit court in favor of Clark county for costs, and the appellant appealed from such judgment to this court, assigning as error that the circuit court erred in entering judgment against him and in favor of the appellee instead of a judgment against the appellee and in his favor.

The stipulation, above referred to, states that E. D. Jones, the plaintiff, was elected to the office of State’s Attorney for Clark county, Illinois, in November, 1912; that he qualified and entered upon the duties of said office on the first Monday in December, 1912; that the said E. D. Jones served and acted as such State’s Attorney for and during a period of four years from December 1912 to December 1916; that the said E. D. Jones received as compensation for such services the sum of $2,500 for each year, of which sum the said county of Clark paid $2,100 and the State of Illinois $400; that the salary of E. D. Jones, as such State’s Attorney, was fixed and provided for by the Act of the Legislature of the State of Illinois, entitled, “An Act fixing and providing for the payment of the salaries of State’s Attorneys and their assistants,” approved June 11,1912, in force July 1,1912, and that the population of Clark county, Illinois, as ascertained by the last census immediately previous to the election held in November 1912 was 23,517.

It is contended by the appellant that he should receive from the county of Clark $2,400 per annum in addition to $400 from the State of Illinois, making a total of $2,800 as his annual salary; that Clark county should have paid him $2,400 instead of $2,100 per annum in addition to the $400 paid him by the State of Illinois, each year he was State’s Attorney ; that said county is indebted to Mm an additional sum of $300 for each" of such four years, or $1,200.

It is contended by appellee that the salary of the appellant was $2,500 per annum; that $400 of that amount was each year paid him by the State of Illinois, the remainder of $2,100 by the county of Clark; that the appellee is not indebted to appellant, and that the judgment of the court below was-right.

'Section 1 of the Act fixing- and providing for the payment of the salaries of the State’s Attorneys provides: “That there shall be allowed to the several State’s Attorneys in this State, hereafter elected, for services to be rendered by them, the following annual salary, to-wit: To each State’s Attorney in counties not exceeding 30,000 inhabitants, the sum of $100 per each 1000 inhabitants and major fraction thereof, the said salary to be in addition to that now provided by law to be paid by the State: Provided, however, that the maximum sum to be paid any State’s Attorney in any such counties shall not exceed the sum of $2,500.00 per annum.” Section 3 of the same Act provides that “the salaries of State’s Attorneys, excepting that part which is to be paid out of the State treasury as now provided by law (i. e. $400), shall be paid out of the county treasury of the county in wMch the State’s Attorney shall reside, in quarterly annual installments on the order of the county board on the treasurer of said county.”

No fixed amount of salary is provided for the class of counties having not to exceed 30,000 inhabitants, in which Clark county is included, but the amount of salary is dependent upon the population in each of such countiesj the State’s Attorney receiving $100 for each 1,000 inhabitants, in addition to that now provided by law to be paid by the State, with the added proviso that the maximum should not exceed $2,500 per annum. Smith v. County of Logan, 284 Ill. 169 (170).

If it were not for the proviso in section 1, above quoted, the contention of the appellant would be right, but under such proviso the highest amount per annum he can justly claim is $2,500 from the State and Clark county, which amount he received each year he was State’s Attorney, leaving nothing due him.

The judgment of the Circuit Court was right and is affirmed.

Affirmed.


author: Mr. Presiding Justice Graves

text:
    Town of Pleasant Hill and Town of Spring Creek, Appellees, v. Jane Stark et al., Appellants.
    1. Roads and bridges, § 39

      —when filing of certificate by commissioners essential. The filing of a certificate with a justice of the peace by the commissioners of highways consequent upon the failure to release or agree upon damages upon a vacation of lands for a road, as required by Hurd's Rev. St. 1917, ch. 121, sec. 82 [Call. 1916 Stat. ]f 10000(82)], is jurisdictional, as in no other way can such justice obtain jurisdiction to assess damages to owners for the vacation of such lands.
    2. Roads and bridges, § 53*—when commissioners of two townships must sign certificate. Under Hurd’s Rev. St. 1917, ch. 121, sec. 99 [Call. 1916 Stat. If 10000(99)], relating to the vacation of lands for roads, the road commissioners of two townships must act together as to a road between townships, and as to roads wholly within one town the commissioner of that town only can act; and therefore a certificate for the laying out of four roads, two to be established and two to be vacated, one of which was located along the township line and the other three wholly within one of the townships, was fatally defective, which was signed by four persons designated “Commissioners of Highways,” but without identifying which of the townships any of such persons represented.
    3. Roads and bridges, § 71*—when surveyor’s plat inadmissible. The admission, upon the assessment of damages for the vacation of land for a road, of a survey or! s plat prepared in attempted compliance with Hurd’s Rev. St. 1917, ch. 121, sec. 78 [Call. 1916 Stat. T 10000(78)], was error, where the proof tended to show that the distances shown thereon were placed there from the recollection of the chain carriers and not from the 'memoranda taken at the time of the survey.
    4. Roads and bridges, § 71

      —when surveyor’s plat inadmissible. The admission, upon the assessment of damages for the vacation of land for a road, of a surveyor’s plat prepared in attempted compliance with Hurd’s Rev. St. 1917, ch. 121, sec. 78 [Call. 1916 Stat. 1i 10000(78)], was error, where the terminals of the plat were different from those in the commissioners’ certificate.
    5. Roads and bridges, § 71*—when deviation from terminus by surveyor improper. Hurd’s Rev. St. 1917, ch. 121, sec. 78 [Call. 1916 Stat. f 10000(78) ], providing that the surveyor may make changes between the termini of a road as the convenience and interest of the public in his judgment may require, gave no power to such surveyor to deviate the terminus of a road about 200 feet from the plan of the road petitioned for.
    6. Roads and bridges, § 47*—when lump assessment of separate interests improper. In an assessment of damages to land proposed to be vacated for a road, instructions which permitted the assessment of damages in a lump sum to two or more persons, where they had separate interests in the same property, was erroneous.
    7. Roads and bridges, § 57*—when granting leave to amend certificate erroneous. To grant a motion for leave to amend the certificate of the road commissioners provided for in Hurd’s Rev. St. 1917, ch. 121,.sec. 82 [Call. 1916 Stat. 1[ 10000(82)], which formed the basis of a proceeding to assess damages for the land to be taken, so as to make the termini of the proposed road along the town line correspond to the surveyor’s plat, which showed a deviation of 200 feet at one of the termini, from the plan of road petitioned for, would have been error at any time.
    8. Roads and bridges, § 90*—when appeal will lie from order of assessment by justice. An appeal lies to the Circuit Court from the justice in a proceeding under Hurd’s Rev. St. 1917, ch. 121, sec. 82 [Call. 1916 Stat. 10000(82)], to assess damages for land vacated for a road.
    9. Roads and bridges, § 96*—when appellant cannot claim appeal mil not lie. Upon an appeal from the assessment of damages for the vacation of a road, under Hurd’s Rev. St. 1917, ch. 121, sec. 82 [Call. 1916 Stat. If 10000(82)], the appellants could not be heard to claim that no appeal lay to the Circuit Court, they having themselves invoked the right.
    10. Roads and bridges, § 71

      —When invalid certificate of surveyor ground for reversing assessment without remand. As the surveyor’s plat required by Hurd’s Rev. St. 1917, ch. 121, secs. 78, 79 [Call. 1916 Stat. 10000(78), 10000(79)], is a necessary prerequisite to the assessment of damages for establishing or vacating roads, the judgment in the justice proceeding in question for the assessment of damages was reversed without remanding, where the surveyor’s certificate was contrary to the statute in that in it the surveyor deviated the terminus of the road 200 feet from the plan of the road petitioned for.
    Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed April 29, 1919.
    Williams & Williams and Paul F. Grots, for appellants.
    Anderson & Matthews, and Edwin Johnston, for appellees.

      See Illinois Notes Digest, Yola. XJ to X.y, and Cumulative Quarterly, same topic and section number.

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

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

Section 82, ch. 121, Hurd’s Eev. St. 1917 [Call. 1916 Stat. if 10000(82)] provides in substance, so far as is material to this case, that in case the damages sustained by the owners of land by reason of the establishment or vacation of roads are not released or agreed upon by the owners and the commissioners of highways, the commissioners of highways shall, after they shall grant the prayer for the establishment or vacation of the road, make a certificate that they are about to establish or vacate a public road, describing it, and the lands over which the same runs, and give the names of the owners thereof, and file the same with a justice of the peace of the county, and that upon receipt of the same the justice of the peace shall issue a summons for the landowners concerned to appear and prove their damages on account of establishing or vacating the road as the case may be. The filing of a certificate in substantial compliance with this section is jurisdictional. _ In no other way can a justice of the peace obtain jurisdiction to assess the damages mentioned in that section of the statutes.

In apparent attempted compliance with the provisions of that section of the statute a certificate was prepared by the commissioners and filed with a justice of the peace of the proper county, which, so far as is important to this case, was in the following words:

“State of Illinois,)

County of Pike.) ss

2 To...................Esq., a Justice of the Peace of said County:

“This is to certify that we, the Commissioners of Highways of the Towns of Spring Creek and Pleasant Hill, are about to lay out a public road described as follows, to-wit: Beginning on the township line between Spring Creek and Pleasant Hill Township at a point where the east and west half section line running through Section 19 in Spring Creek Township and through Section 24 in Pleasant Hill Township intersects the township line between said township, thence runs directly south on said township line a distance of approximately 198 rods to the point where said proposed road will intersect a road in a northeasterly direction across the northwest quarter of Section 30 in Spring Creek Township: They the undersigned respectfully petition for another road of the width of 40 feet to be laid out in the manner provided by law, which road shall commence on township line between the said Pleasant Hill and Spring Creek Townships at point 80 rods north of the intersection of south section line of Section 19 in Spring Creek Township and Section 24 in Pleasant Hill Township which point above described shall be the center of said road, thence run due west between the northeast quarter of the southeast quarter and the southeast quarter of the southeast quarter of Section 24 in Pleasant Hill Township, a distance of about seventy (70) rods to a point where said proposed road will intersect a road coming from the south and also from the west and there terminating.

“The owners of the land over which said roads will pass are as follows: * * *

“The undersigned landowners residing in Pleasant Hill Township respectfully petition the Commissioners of Highways of Pleasant Hill Township to vacate certain roads in the manner provided by law, which roads are described as follows, to-wit: * * * in Pleasant Hill Township * * *; also to vacate another road commencing on the east and west half section line of Section 19 in Spring Creek and 24 in Pleasant Hill Township, approximately forty rods west of the township line, running thence directly west approximately forty rods and thence directly south from the point last above set out, a distance of forty rods and there terminating at a point where said road intersects a road running east and west. * * *

“The undersigned landowners all reside in Pleasant Hill Township within two miles of said roads proposed to be laid out, and said roads proposed to be vacated: * * *

“That we have not been able to agree with the said landowners aforesaid as to damages sustained by them by reason of the proposed laying out of the said road over their lands. We, the said Commissioners, therefore ask for a jury to assess the damages of said owners.

“Given under our hands this the 29th day of November, A. D. 1915.

T. P. Johnson,

John Main,

V. J. Galloway,

A. O. Venable,

Commissioners of Highways. ’ ’

This certificate mentions four roads, two to be established and two to be vacated. One of these roads, to be established, is located along the township line between Pleasant Hill Township and Spring Creek Township.

The other road to be established and the two to be vacated lie wholly in Pleasant Hill Township. The record does not show definitely whether the establishment of the two roads and the vacation of the other two were prayed for in one or more petitions, but the certificate recites as to one of those roads to be vacated that the petition was addressed to the Commissioners of Highways of Pleasant Hill Township, alone. This certificate filed with the justice of the peace is signed by four persons. Below the last signature are the words ‘‘Commissioners of Highways” and that is all. There is no identification of which township either or any of the commissioners represent. There is no law in this State by which there can be four commissioners of highways in one township at one time. Besides that, the opening paragraph of the certificate describes them as ‘ Commissioners of Highways of the Towns of Spring Creek and Pleasant Hill,” but which or how many are from the respective towns the certificate does not show.

This case was tried in the Circuit Court, on appeal from the justice of the peace, and a judgment was rendered in favor of the landowners in sums aggregating something over $1,800.

Section 99, ch. 121 of the same statute [Call. 1916 Stat. [f 10000(99)] provides that when roads to be established or vacated are on town lines or from one township to another, the petition therefor shall be presented to the commissioners of each town interested, whereupon it becomes the duty of the commissioners of the several towns to act together. The statute is the only authority for commissioners of highways to act,' and only when acting within the authority given by statute are their acts valid. As to the town line road, the commissioners of two townships must act, and as to roads wholly in one town, the commissioners of that town only can act. As to the vacation of the roads wholly in Pleasant Hill Township, appellants have conceded that the certificate quoted does not give jurisdiction to the justice of the peace to assess damages in this case, but as to the two roads to be established the damages were assessed. It was equally ineffectual to give jurisdiction to assess the damages for the establishment of the road wholly in Pleasant Hill Township, or of that road and the one on the line between the two townships jointly. The point made by appellants that out of the six commissioners from both townships at least two from each township must concur in signing the certificate, is not well taken. The two sets of commissioners, when called into action by a proper petition, constitute one body, a majority of which will control. Section 99, ch. 121, Hurd’s Rev. St. 1917 [Call. 1916 Stat. fl 10000(99)].

The certificate was also insufficient to warrant the assessment of damages except as to the road along the township line, because it is only as to that road that it purports to show that the commissioners had determined or were about to grant the prayer of the petitioners. >'

At the trial a surveyor’s plat prepared in attempted compliance with section 78, ch. 121, Hurd’s Rev. St. 1917 [Call. 1916 Stat. [¶] 10000(78)] was offered in evidence by appellees. Objection was made that there was not sufficient proof of its accuracy. The objection was overruled and the plat was admitted. This was error for two reasons: (1) The proof tended to show that the distances shown thereon were placed there from recollection of chain carriers assisting the surveyor and not from memoranda taken at the time of the survey; and (2) the terminals of the plat were different from those in the commissioners ’ certificate.

The testimony of the engineer shows that at the request of two of the commissioners of highways the southern terminus of the proposed road was deviated about 200 feet from the plan of the road petitioned for. By the terms of section 78, ch. 121, Hurd’s Rev. St. [Call. 1916 Stat. [¶] 10000(78)], already referred to, the surveyor may make changes between the termini of the road as the convenience and interest of the public in his judgment may require, but he has no right to change the termini. Deer v. Highway Com’rs, 109 Ill. 379 (381); Farrelly v. Town of Kane, 172 Ill415 (419). A change of one rod in the termini of a road was held to be fatal to the validity of the road. Shinkle v. Magill, 58 Ill. 422.

The instructions as to the form of the verdict, the verdict and the judgment are all wrong. Pursuant to the instructions of the court the damages were assessed in a lump sum to two or more persons where they had separate interests in the same piece of property. In the case of Jane Stark and her children, she owned a 17-acre tract of land in her own right and in a different 40-acre tract she owned a homestead and dower interest. While the fee in the 40-acre tract was owned by eight other persons, two of whom were minors, yet the jury were instructed to and did assess the damages on the whole 57 acres in a lump sum, and the judgment is in the same form. There is no way of finding out how much the jury awarded to each. of these landowners.

Several questions have been presented as to the correctness of the proceedings prior to the presentation of the certificate of the commissioners for the assessment of damages. With most of those questions neither the Circuit Court nor this court have anything to do in this proceeding.

At the trial in the Circuit Court a motion was made, by'appellees, to amend the certificate of the commissioners that was the basis of this action so as to make the termini of the proposed road along the town line correspond to those shown by the surveyor’s plat. This motion was not passed on until after the jury had returned its verdict and not until a subsequent term. To permit such amendment would have been error at any time, because thereby it was attempted to change the termini of the road from the original place, which as has been said cannot be lawfully done. Again the jury had heard the evidence on the basis of the road being located as stated in the certificate as filed. By allowing the amendment, property would be taken for ;the road that was not considered by the jury in reaching their verdict.

It is contended by appellants that an appeal does not lie from the justice to the Circuit Court for the reason that no practice is provided in the Circuit Court to govern such trials and that the jury were not selected or the trial conducted according to the provisions of the Road and Bridge Act. There are several answers to this objection. First, the statute expressly authorizes such appeal. Section 88, ch. 121, Hurd’s Rev. St. 1917 [Call. 1916 Stat. If 10000(88)]. Second, appellants took that appeal and could easily have dismissed it. They cannot be heard to deny a right which they are at the same time invoking. Third, while this is purely a statutory proceeding, and while an appeal from a justice of the peace to the County or Circuit Court the trial is de novo, the procedure in the court to which it goes on appeal is the same as prevails there in other cases. Neely v. Shephard, 190 Ill. 637, affirming 92 Ill. App. 422.

The surveyor’s plat required by sections 78 and 79, ch. 121, Hurd’s Rev. St. 1917 [Call. 1916 Stat. p 10000 (78), 10000(79)] is a necessary prerequisite to the assessment of damages for establishing or vacating roads. We find as an ultimate fact that the plat offered in evidence in this case is not in compliance with that statute and cannot be made to conform to it so as to vest jurisdiction in the courts to assess damages in this case. It is therefore useless to remand this case for another trial. For the errors mentioned, the judgment of the Circuit Court is reversed.

\Judgment reversed with finding of fact.


text:
    C. E. Rogers, Appellee, v. Fred J. Pierce, Garnishee, Appellant.
    1. Garnishment, § 1

      —when strict compliance uñth statute requisite. Garnishment proceedings are purely statutory, and only by a strict compliance with the terms of Rev. St. ch. 79, sec. 85 (J. & A. H 6946), governing such proceedings, can a justice acquire jurisdiction to issue a garnishee summons or to hear and determine a garnishee case.
    2. Garnishment, § 53*—when affidavit insufficient. An affidavit for garnishee summons which was originally signed with plaintiff’s name by his attorneys, and recited that it had been sworn to before the justice on a stated day, without showing who swore to it, and which was subsequently amended by striking out the attorneys’ names, was no affidavit at all and formed no basis for the proceedings; it appearing that plaintiff, whose name appeared at the bottom of the so-called affidavit, did not sign or swear to it and was not even in the room when it purported to have been signed and sworn to, and that after the amendment no one attempted to resign it or to verify it as amended.
    3. Garnishment, § 54*—when proceedings dismissed for want of proper affidavit. No such affidavit as required by Rev. St. ch. 79, sec. 85 (J. & A. If 6946), having been filed in the garnishment suit in question before the justice, he had no jurisdiction to proceed and properly dismissed the proceedings, and the City Court hearing the case on appeal had no jurisdiction the justice did not have.
    Appeal from the City Court of Pana; the Hon. John H. Foiinoff, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed.
    Opinion filed April 29, 1919.

      Charles E. Springstun, for appellant.
    Griffith & Vogelsang, for appellee.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

On June 2, 1917, a judgment was entered by one W. H. Aughinbaugh, a justice of the peace of Christian county, Illinois, in favor of one C. E. Rogers, plaintiff, and against one John Jones, defendant, for $58.82 and for costs. Upon this judgment an execution was issued which was returned on June 11, 1917, “No property found subject to levy.” On June 14, 1917, a paper purporting to be an affidavit for garnishee summons was filed with the justice of the peace, where the judgment was rendered in attempted compliance with section 85, ch. 79, Rev. St. (J. & A. j[ 6946), in which, besides other jurisdictional facts, it was stated in substance that there was reason to believe that one Fred J. Pierce was indebted to John Jones, the judgment creditor, or had effects in his hands belonging to the said Jones. Thereupon a garnishee summons was issued by the justice of the peace for the said Fred J. Pierce to answer as garnishee in said cause. In due time the garnishee proceedings were dismissed by the justice of the peace. From that judgment of dismissal an appeal was prosecuted to the City Court of the City of Pana, by Rogers, the judgment creditor. In the City Court of Pana a judgment was rendered against Pierce, the garnishee for the amount found due from him to Jones, the judgment debtor. From that judgment, Jones, the judgment debtor, has prosecuted an appeal to this court. No question is here raised as to the right of Jones to prosecute this appeal.

Appellant urges several reasons why the judgment should be reversed, but it will not be necessary for us to consider but one of these reasons.

The so-called affidavit for garnishee summons was signed “C. E. Bogers, by Griffith & Phillips, Attys.” The jurat merely recites that the same was “subscribed and sworn to before me this 14th day of June 1917. W. H. Aughinbaugh, Justice of the Peace.” It does not appear who swore to it. A motion was made in the City Court of Pana by Jones, the judgment debtor, to dismiss the garnishee proceedings for the want of a proper affidavit, and a cross motion was made by Bogers, the judgment creditor, for leave to amend the affidavit by striking from the signature to it the words “by Griffith and Phillips, Attys.” but leaving the name C. E. Bogers there. The motion to amend was allowed and the amendment was made by erasing the words mentioned, and thereupon Jones renewed his motion to dismiss, which was denied. On the hearing of this motion to dismiss, the proof conclusively shows that C. E. Bogers, whose name appears at the bottom of the so-called affidavit as the signer thereof, did not sign or swear to it and was not even in the room when it purports to have been signed and sworn to, and that after the same was amended no one attempted to resign it or to verify it as amended. It was therefore not an affidavit at all.

Garnishment proceedings are purely statutory and only by a strict compliance with the terms of the statute governing such proceedings can a justice of the peace acquire jurisdiction to issue a garnishee summons or to hear and determine a garnishee case. Farnum v. North Chicago Safety Deposit Vault Co., 97 Ill. App. 439; Dearborn Laundry Co. v. Chicago & A. R. Co., 55 Ill. App. 438.

To give a court jurisdiction in a garnishment proceeding, an affidavit must be filed pursuant to section 85, ch. 79, Rev. St. (J. & A. 6946); Gibbon v. Bryan, 3 Ill. App. 298; Garrett v. Murphy, 102 Ill. App. 65.

As there was no such affidavit filed in this case as is required by section 85, ch. 79, Bev. St., the justice had no jurisdiction to proceed and properly dismissed the proceedings. The City Court of Pana, hearing the case on appeal, had no jurisdiction the justice of the peace did not have. The judgment appealed from was void for want of jurisdiction and is therefore reversed.

Reversed. -


text:
    David P. Briggs, Administrator de bonis non, Appellee, v. Bankers Accident Insurance Company, Appellant.
    1. Trial, § 82

      —when proper to reopen cause for further evidence from plaintiff who has rested. The practice of opening a case and permitting plaintiff to introduce further proof after he has formally rested his case, and after defendant has moved the court to give a peremptory instruction for defendant, is not an unusual one and is a matter resting within the sound discretion of the trial court.
    2. Insurance, § 350*—what effect of delivery of policy as to payment of premium. The unconditional delivery of the policy of accident insurance in question was not only a waiver of the prepayment of any premium provided for therein, where the proof showed that it had not been paid, but was prima facie proof that such premium had in fact been paid.
    3. Insurance, § 466*—when proof of death waived hy 'pleading to merits. An accident insurance company waived making proof of death by pleading to the declaration on the merits without mentioning the want of proof of death.
    4. Insurance, § 214*-—when statements in application deemed representations. The settled rule in this State that where it is doubtful whether the statements in an application for insurance are representations or warranties, they will be deemed to be representations, warranties not being favored because they must be literally fulfilled, applied so as to hold that statements in an application as to the holding of other accident or health insurance were representations and not warranties.

      5. Instjeance, § 654

      —when other policies inadmissible to show other insurance. In an action on an accident insurance policy, where defendant claimed that the policy was avoided because the insured in answer to a question in the application as to whether he had any other accident or health insurance answered that he had none, although in fact he then had one life insurance policy and one benefit certificate in other companies, it was not error to refuse to admit such other policy and such certificate in evidence, as the one company was ■ not an accident and health insurance company and the other was a benefit society and not an insurance society in the sense that membership in it is regarded as a violation of a covenant not to take other insurance.
    6. Insurance, § 686*—when question whether insured intoxicated at time of death question for jury. In an action on an accident insurance policy, the question whether or not the insured came to his death while intoxicated was purely a question of fact for the jury.
    Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Habéis, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.
    Rehearing denied July 9, 1919.
    C. Everett Smith and George W. Kenney, for appellant ; Fred I. Edgell, of counsel.
    J. E. Miller and Beach & Trapp, for appellee.

      See Illinois Notes Big-est, 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 Graves

delivered the opinion of the court.

Emery Edward Briggs was killed on September 14, 1916, by being struck by an automobile while he was walking in the public highway. At the time of his death he held a policy of insurance against the effects resulting directly and solely from bodily injuries received through external, violent and accidental means, which cause total disability immediately and continuously from date of accident, and against the effects of bodily sickness or disease.

This suit was brought by the administrator of the estate of Emery Edward Briggs, deceased, to recover on that policy. Appellant filed the general issue and several special pleas, none of .which is based on the Jack of proof of death. The jury found the issues for the plaintiff and assessed his damages at $1,000. To reverse the judgment entered on the verdict the defendant has appealed.

The first point made by appellant is that the court erred in opening the case and permitting appellee to introduce further proof after he had formally rested his case and after appellant had moved to have the court give to the jury a peremptory instruction to find the issues for it. The practice pursued is not an unusual one and is a matter within the sound discretion of the trial court. Where that discretion is not shown to have been abused, its exercise is not error. The proof supplemented in this case was formal and not calculated to prejudice or surprise appellant or put it to any disadvantage, and no error was committed in permitting it to be so introduced.

It is next contended by appellant that appellee failed, first, to prove the payment of the first premium; and second, to make proof of death, or of the waiver of such proof. The unconditional delivery of a policy of insurance, which the evidence shows was done in this case, is not only a waiver of the prepayment of any premium provided for therein, if the proof shows it has not been paid, but it is prima facie proof that such premium has in fact been paid, which is sufficient in the, absence of proof to the contrary. Globe Mut. Life Ins. Ass’n v. Meyer, 118 Ill. App. 155; Gosch v. State Mut. Fire Ins. Ass’n, 44 Ill. App. 263. Besides that there was introduced in evidence a receipt for a note for $35 “in payment of membership fee and premiums for one year on policy applied for,” which receipt is signed by the solicitor who took the application on which the policy of insurance was issued. On the question of lack of proof of death, it is sufficient to say that by pleading to the declaration on the merits without mentioning the want of proof of death, appellant has waived the making of such proofs. Williamsburg City Fire Ins. Co. v. Cary, 83 Ill. 453; Massachusetts Ben. Life Ass’n v. Sibley, 57 Ill. App. 246; Bostetter v. American Ins. Co., 184 Ill. App. 157; Gash v. Home Ins. Co. of New York, 153 Ill. App. 31. Such a waiver is in the nature of an estoppel in pais and may be proven without being pleaded. Evans v. Howell, 211 Ill. 85-93, and cases there cited..

It is next urged by appellant that the application of the deceased for the policy sued on is part of the policy itself, and that the answers to questions therein contained amount to and are warranties of the truth of facts there stated; that in such application the deceased was asked “Have you any other accident or health insurance?” and that he answered “No,” while in truth and in fact he at that time had a life insurance policy for $2,500 issued by the Franklin Life Insurance Company and a benefit' certificate for $1,000 issued by the Modern "Woodmen of America, and that by reason of the fact that the policy sued on was obtained by such false warranties, it\is void. At the head of the application, pursuant to which the policy in question was issued, there is the following statement, questions and answers.

“I hereby apply for a policy of insurance in the Bankers Accident Insurance Company, such policy to be based upon the following statement of facts, which I malee in answer to its interrogatories. Do you warrant all statements and answers to be true and complete ; and agree if any of the statements made herein are untrue; or if you fail to fulfill any agreement made herein, then said policy shall be null and void and all payments made thereon shall be forfeited to the Company, if such false statement was made with actual intent to deceive or if it materially affects either the acceptance of the risk or the hazard assumed by the Company? Do you also agree that the Company shall not be bound by any statements made by you or the solicitor unless endorsed hereon, and that this application shall not be binding until accepted at the Home Office and the insurance not to be in force until the policy is actually issued and premium paid by you? Answer—Yes.”

The opening sentence in the policy sued on is:

“In consideration of the agreements and statements contained in the application hereof, a copy of which is endorsed hereon and made a part of this contract the payment of the policy fee of $5.00 and the payment of the annual premium of $50.00, the Company * * * does hereby insure,” etc.

It will be observed that all through the part of the application just quoted, the answers of applicant to follow are referred to as “Statements and answers”; “statements made herein”; “false statements” and “statements made,” and in the part of the policy quoted the same things are referred to as the ‘1 agreements and statements contained in the application.”

In the case of Spence v. Central Acc. Ins. Co., 236 Ill. 444, it was held that the language in a policy “In consideration of the warranties and agreements in the application for this policy and of $25,” is no more than a recital of the consideration which may be contradicted by parol. See also, Kidder v. Supreme Assembly, 154 Ill. App. 489, and cases there cited. In the case of Nash v. Eddy, 184 Ill. App. 375, reported there in abstract form, Mr. Justice Thompson said:

“In insurance contracts a representation is a statement relating to a material matter and is only required to be substantially true, while a warranty must be literally true. Warranties enter into and are part of the contract, while representations are mere inducements to it. Minnesota Mut. Life Ins. Co. v. Link, 230 Ill. 273. The application, while it warrants the truthfulness of the answers, yet, it concludes: ‘It is understood that should this application be accepted and policy issued, that it is done solely upon the representations herein named.’ The language of an application to make the statements therein warranties must be so clearly and unequivocally expressed as to leave the court no other alternative, but to construe the statements to be warranties. If the language employed is ambiguous and doubtful, or if there is another reasonable construction that may be placed upon it and thus avoid the consequences of a warranty, courts are inclined to adopt the latter construction. Minnesota Mut. Life Ins. Co. v. Link, supra; Moulor v. American Life Ins. Co., 111 U. S. 335; Continental Ins. Co. v. Rogers, 119 Ill. 474. The application itself stating that should this application be accepted and policy issued, that it is done solely upon the representations herein named, a court would not be justified in holding the statements to be warranties, when the anplication itself states that they are representations. Globe Mut. Life Ins. Ass’n v. Wagner, 188 Ill. 133. The court correctly held that the statements were representations.”

While the language employed in the policy and application before us is not so dear as to remove all doubt of its meaning, it is certain that it is even more suggestive of an intention to make the answers in the application mere representations or statements than was true in Nash v. Eddy, supra, and it is the settled rule in this State that where it is doubtful whether the statements in an application for insurance are representations or warranties they will be deemed to be representations, warranties not being favored because they must be literally fulfilled. Continental Life Ins. Co. v. Rogers, 119 Ill. 474; Kidder v. Supreme Assembly, 154 Ill. App. 489; Court of Honor v. Clark, 125 Ill. App. 490. In the light of the authority cited we hold the answers in. the application for the policy sued on to be representations merely and. not warranties. Even if the contrary view should be taken, and it should be held that the answers in the application were warranties, and that they were part of the policy and must be construed with the other language in the policy, still there is nothing in the record to show that such answers were not strictly true. The language in the policy proper with respect to other insurance is:

“If the insured shall carry with another company, corporation, association or society other insurance covering the same loss without giving written notice to the Company,” etc.

While the questions in the application and the answers to them are as follows:

8. “Have you any other accident or health insurance? No.”

9. “Do you agree to notify this Company if you take any other insurance paying benefits for sickness or accident? Yes.”

10. “Has any Insurance Company or Association ever cancelled your policy or declined to issue or renew a policy? No.”

11. “Have you ever received any benefits from Accident or Health Companies or Associations?” (No answer.)

Construing all the language used in both policy and application with reference to other insurance than that furnished by appellant, there can be but one conclusion reached as to what sort of insurance is meant and that it was accident and health insurance. An examination of the $2,500 policy of the Franklin Life Insurance Company shows at once that it is not an accident and health insurance company, and the Modern Woodmen of America, from which the insured held a certificate of membership, is a benefit society and not an insurance company, in the sense that membership in it is regarded as a violation of a covenant not to take other insurance. Peterson v. Manhattan Life Ins. Co., 244 Ill. 529. It was therefore not error for the court to refuse to admit the policy of the “Franklin” or the certificate of the “Modern Woodmen” offered in evidence.

It is lastly contended that the deceased came to his death while intoxicated, and therefore under the terms of the policy held by him no obligation rested on appellant to pay the policy. Whether or not he was so intoxicated at the time of the accident that caused his death was purely a question of fact for the jury to determine, and after being properly instructed they found in effect that he was not so intoxicated, and we are not prepared to say the verdict was contrary to the manifest weight of the evidence.

There is no reversible error in this record and the judgment is affirmed.

Affirmed.