text:
    The People of the State of Illinois ex rel. June C. Smith, Defendant in Error, v. Albert D. Rodenberg, Plaintiff in Error.
    1. Pleading, § 380

      —necessity for joinder of issue. Though as a general rule there must be an issue, either of law or fact, joined on the pleadings or default of the defendant entered of record, courts may avoid the use of unnecessary circumlocution and useless technicalities in arriving at inevitable results when such a course can be followed without abandoning rules of pleading and procedure necessary to protect the interests of one or more of the parties.
    2. Appeal and error, § 1830

      —effect of decision of Supreme Court as to matters which may he considered on remandment. Where, in a proceeding in the nature of a quo warranto questioning the title of a city judge to office, a demurrer was sustained to replications setting up that the court was not legally established for the reason that the city was partly situated in two counties and on appeal from the order sustaining the demurrer the Supreme Court decided that the Constitution prohibited the establishment of the City Court for the reasons stated in the replications and remanded the cause with directions to overrule the demurrer, held that the action of the trial court, upon reinstatement of the cause in refusing respondent leave to file certain rejoinders to the effect that the city was not located in two counties, and in entering judgment of ouster against the respondent without further pleadings, was not error, for the reason that the rejoinders presented no defense in view of the decision of the Supreme Court.
    3. Evidence, § 9

      —judicial notice of location of cities with reference to counties. Courts of this State will take judicial notice of the location of cities with reference to the counties in which they are situated.
    4. Municipal corporations, § 28

      —when right of city to extend its territory cannot he inquired into in collateral proceeding. The question of the right of a city to extend its territory into another county cannot be inquired into in a collateral proceeding such as a proceeding by information in the nature of a quo warranto questioning the title to the office of city judge.
    Error to the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.

      Bundy & Wham, J. J. Bundy, L. B. Skipper and C. F. Dew, for plaintiff in error.
    Samuel N. Finn and Noleman & Smith, for defendant in error.

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

   Mr. Justice Higbee

delivered the opinion of the court.

This is a proceeding by information in the nature of a quo warranto, brought by the People of the State of Illinois at the relation of June C. Smith, defendant in error, against Albert D. Bodenberg, plaintiff in error, questioning the title of the plaintiff in error to exercise the office of judge of the City Court of Centralia, Illinois.

The amended information filed by the State’s Attorney, pursuant to leave granted by the Circuit Court of Marion county, charged that for more than ninety days prior to the filing of the same, said Albert D. Bodenberg had unlawfully held and executed the office of judge of a pretended City Court for the city of Centralia, which office he, during all said time, had usurped and that he was still holding and executing the same without any warrant, title or right whatsoever. Plaintiff in error filed his answer setting up the establishment of a City Court by an election held in said city for that purpose and that he was thereafter elected to the office of judge of said court, took the prescribed oath of office on March 13, 1911, was duly commissioned by the governor of the State of Illinois as judge of said court and took upon himself the duties of said office. Defendant in error filed four replications to this plea, setting up that said city of Centralia, Illinois, lies partly in Marion county and partly in Clinton county and alleging that by reason of said city being in two counties its voters could not legally establish a City Court; that the act of the legislature in relation to the establishment of City Courts, in so far as it attempts to authorize such courts to exercise jurisdiction over territory lying partly in one county and partly in another, is in violation of the Constitution of this State.

Plaintiff in error filed a general demurrer to these replications, which was sustained by the court, and defendant in error having chosen to abide by his replications, judgment was entered against it. An appeal was taken from that judgment to the Supreme Court, which held that the power conferred by the act in relation to City Courts could not be exercised in a city embracing parts of two counties; that as the city of Centralia was located in two counties the act could not be applied to it without infringing upon constitutional rights, and the judgment was reversed and the cause remanded to the Circuit Court with directions to overrule the demurrer. People v. Rodenberg, 254 Ill. 386. When the case was reinstated in the Circuit Court, defendant in error moved the court to overrule the demurrer and enter judgment for ouster on the replications. The court overruled the demurrer to the replications in accordance with the directions of the Supreme Court and plaintiff in error filed a cross motion asking leave to plead over and presented three rejoinders to be filed.

The first of the rejoinders presented denied that the city of Centralia was at the time of the establishment and organization of the court situated partly within the county of Marion and partly within the county of Clinton. The second alleges that the city of Centralia was organized under a special charter out of territory wholly lying within the county of Marion; that after-wards it became incorporated under the general laws of the State concerning cities and villages; that it continued to be a city of the county of Marion with its principal office and seat of government in said county; that the special charter contained no provision authorizing the extension of said city into the county of Clinton and that since said city has become incorporated under the general laws of the State it has had no power or authority to extend its territory into said county of Clinton, nor to annex territory lying in said county. The third rejoinder alleged that after the establishment of said court, the city of Centralia provided a place for holding the same in said county of Marion and that its business has always been carried on and conducted in the county of Marion and not elsewhere; that it has not exercised its jurisdiction and authority or attempted to do so over territory lying in the county of Clinton; that jurors for attendance on said court have always been drawn and selected from the county of Marion and that the sheriff of Marion county has exercised authority over and served the writs and processes of said City Court and waited upon its deliberations, and the sheriff of Clinton county has-never done so; that the State’s Attorney of Marion county has also transacted the business of the people of the State before said court; that the court is existing and carrying on its business solely as a court of the city of Centralia in the county of Marion, and not of the county of Clinton. The last two rejoinders concluded with verifications.

Afterwards, the court without further pleadings and without any issue being joined or default entered against plaintiff in error for want of pleadings entered judgment of ouster against him and ordered him to pay the costs of suit. The record in the case was taken to the Supreme Court on writ of error by plaintiff in error, Rodenberg (259 Ill. 78), and has been transferred by that court to this court for our consideration.

It is urged by plaintiff in error that the judgment in this case should be reversed because the court refused the motion of plaintiff in error for leave to plead over and his offer to file the rejoinders in question; and also because the court rendered judgment of ouster against him when no issue was joined and there was no default against him on the pleadings. It is true, as a general rule, that before a final judgment can be entered there must be an issue, either of law or fact, joined on the pleadings or default of the defendant entered of record. But there is a growing tendency on the part of courts to avoid the use of unnecessary circumlocution and useless technicalities in arriving at inevitable results when such a course can be followed without abandoning rules of pleading and procedure necessary to protect the interests of one or more of the parties.

Let us examine the pleadings in this case to see what question was presented. The petition alleged that plaintiff in error was unlawfully holding the office of judge of the City Court of Centralia and performing the duties of such judge. Plaintiff in error pleaded as a defense the claimed establishment of said court under the law, his election and qualification as judge of said court. Defendant in error replied that the city was located in two counties and that the establishment of a court in a city so located was not warranted by the Constitution. The Supreme Court decided that a City Court cannot, under the Constitution be legally established in a city lying in two counties in this State. This would seem to dispose of the right of the city of Centralia to establish the court and of the claim of plaintiff in error to the office. But plaintiff in error sought to rejoin, first, that the city of Centralia did not lie in two different counties; second, that the city as originally organized was located wholly within the county of Marion and that there was no authority for extending its territory into the county of Clinton and that it has never done so; third, that the seat of government of the city is located in Marion county, that the court holds its sessions and conducts its business and that the juries have been selected from said county, and that the sheriff and State’s Attorney of said county perform the duties of such officers in said court.

The first rejoinder presents no defense because, notwithstanding the allegations contained therein, the court must take judicial notice in this suit of the fact that Centralia is located in two different counties. In section 205 of the act in relation to cities, villages and towns, it is provided: “all courts in this State shall take judicial notice of cities, towns and villages and of the changes of their territory made under the provisions of this act.” (J. & A. ¶ 1631.)

It is a well-settled rule of law that courts of the State will take judicial notice of the location of cities with reference to the counties in which they are situated. Sullivan v. People, 114 Ill. 24; Sullivan v. People, 122 Ill. 385; Harding v. Strong, 42 Ill. 148. The first two of the above cases were criminal cases and the last an ejectment case, and in cases such as these an accurate determination of the locus is always necessary. This rejoinder, therefore, did not present any matter which could call for an adjudication of the court. As to the second rejoinder, the question of the right of the city of Centralia to extend its territory into Clinton county cannot be inquired into in a collateral proceeding like this. Ogle v. City of Belleville, 238 Ill. 389. The fact that the business of the court in question was transacted in Marion county and that the sheriff and State’s Attorney of that county performed the duties of such offices for said court, and that such officers in Clinton county have never performed such duties, could be of no avail to plaintiff in error in establishing his right to office in view of the decision of the Supreme Court, directly holding that the Constitution prohibited the establishment of the Centralia City Court. Had the rejoinders been permitted to be filed and the same demurred to by defendant in error, the demurrers must necessarily have been sustained by the court below, which would have involved another appeal,and more delay in a suit where the claims of plaintiff in error have already been decided adversely to him by the Supreme Court, and where it is apparent no judgment could ever be entered in his favor.

In the case of Woods v. Hynes, 2 Ill. (1 Scam.) 103, where the trial court had overruled a demurrer, which presented an immaterial issue, the Supreme Court said: “The Circuit Court ought to have sustained the demurrer; hut it will he seen from the pleadings in the cause, when the demurrer to the plea was overruled, the plaintiff replied, and took issue on the plea. The question on the demurrer might probably not now be regularly before the court for its decision, yet as the issue tried was one wholly immaterial to the question before the Circuit Court, this court is bound to reverse the judgment, and to render a judgment for the plaintiff, notwithstanding the verdict of the court below. The rule is, that when the matter, be it never so well pleaded, could signify nothing, judgment may, in such cases, be given as by confession.”

In People v. Griesbach, 211 Ill. 35, a suit in the nature of a quo warranto, the appeal involved the validity of a dramshop license, the question being whether a certain minor has power to bind his property by signing a frontage petition, and the Supreme Court determined he had no such power and remanded the cause generally. The case was afterwards reinstated and the defendant was permitted to file an additional plea, in which he averred that the petition for the dramshop license had been signed by the guardian of the minor. The Supreme Court on a second appeal said: “that we did not then (on the former appeal) enter a judgment of ouster or remand the case to the Circuit Court with directions to that- court to enter such judgment does not affect the question that this was a positive and unequivocal adjudication that appellant not having the valid consent of the owners of the necessary frontage, his license to keep a dram-shop was therefore invalid. Under such adjudication, although no specific directions were given the trial court, when the remanding order was filed and the case again docketed there was but one course for that court to pursue, and that was to give effect to the adjudication of this court that appellant’s license was invalid and enter judgment of ouster against him. The Circuit Court was no more justified in granting appellant leave to file additional pleas and hearing other evidence than it would have been if the order remanding the case had directed it to enter a judgment of ouster. If appellant’s license was invalid, as held by this court, then no other judgment could properly be rendered, and it was erroneous for the trial court to again open up the case for the purpose of giving appellant an opportunity to present additional evidence upon a new theory of defense.” Griesbach v. People, 226 Ill. 65.

In Lush v. City of Chicago, 211 Ill. 183, it is said: “To hold that in the trial of a cause the constitutionality of a law or the validity of an ordinance may be attacked upon one ground and an appeal prosecuted and a decision of a court of review had upon that question, and when the cause is remanded and again placed upon the docket the same statute or ordinance may be attacked upon another ground requiring another appeal to determine the validity of the same ordinance in the same proceeding, is a practice that cannot be permitted to obtain. Litigation would never end and a court would never know when it had settled the propositions in a single case.”

We conclude, from our consideration of the propositions here presented and the authorities relating thereto, that the court below did not err in refusing* to permit plaintiff in error to file the rejoinders presented by him and in entering judgment of ouster against him upon the pleadings, and the judgment of that court will accordingly be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    J. R. Telford et al., trading as Telford & Wilkinson, Appellees, v. T. M. Smith and Earl C. Huggins, Appellants.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Bill by J. B. Telford and C. E. Wilkinson, trading as Telford & Wilkinson, against T. M. Smith and Earl C. Huggins to restrain defendant Smith from engaging in the business of buying, selling or shipping grain and hay and from buying or selling buggies, wagons or harness, either by himself or through an agent in the city of Kinmundy, Illinois, so long as complainants or either of them are engaged in said business in said city. From a decree granting the injunction, defendant Smith appeals.
    Complainants base their right to an injunction upon a contract made between them and Smith whereby complainants wére to purchase from him his grain elevator and barn located on the right of way of a railroad company together with a lease from the railroad company under which it gave. Smith the right to maintain said buildings on the right of way. The contract also provided that Smith was to sell and complainants were to purchase a stock of wagons, buggies and harness located in a storeroom in said city. There was no dispute about the agreement to sell or that Smith was not to engage in the business of buying and selling the articles mentioned in the city of Kinmundy so long as complainants were engaged in such business at that place.

      Charles H. Holt and W. G. Wilson, for appellants.
    Noleman & Smith, for appellees.
    Abstract of the Decision.
    1. Contracts, § 154

      —when contract not to engage In business enforceable. A contract not to engage in a business, as an inducement to buy a business, is enforceable where the limitations as to place and time are specifically mentioned.
    2. Sales, § 341

      —when finding as to compliance with contract as to invoicing sustained by the evidence. Where on a bill to enjoin a person from engaging in a business, where complainants based their right to an injunction on a contract for the sale of a business, containing a provision that the seller would not engage in a similar business at a certain place so long as complainants were engaged in such business, and the defendant based his right to avoid such provision of the contract on the ground that complainants had refused to invoice certain articles of personal property, held that a finding that the contract of purchase had been fully complied with was sustained by the evidence, there being as to such items a conflict of the oral evidence whether they were to be invoiced, and the written contract not mentioning them.

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

   Per Curiam.


author: Mr. Presiding Justice Smith

text:
    Elsie Nelson, Defendant in Error, v. Ephraim Swanson, Plaintiff in Error.
    Gen. No. 19,320.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Proceeding by Ephraim Swanson for a discharge from arrest under a copáis ad satisfaciendum issued on a judgment in favor of Elsie Nelson after the return of a writ of fieri facias, nulla bona.

    It was urged as ground for a discharge that the affidavit was defective and fatal because an unreasonable length of time intervened between the time the affidavit was sworn to and tlie day it was filed in court.
    To reverse an order of the Superior Court denying a motion to quash the capias, the petitioner brings error.
    Samuel J. Richman, for plaintiff in error.
    Eugene Stewart and William Reeda, for defendant in error.
    Abstract of the Decision.
    1. Execution, § 286

      —when a writ of ca. sa. will issue without an affidavit. A capias ad satisfaciendum may be ordered against the body of the judgment debtor upon the mere motion of the judgment creditor based on the record without any affidavit, where the record shows that the judgment was entered in a case where malice was the gist of the action.
    2. Execution, § 286

      —when insufficiency and time of filing affidavit for a ca. sa. immaterial. Whether an affidavit for a capias ad satisfaciendum was filed within a reasonable time after it was sworn to or whether it was sufficient to justify the issuance of the capias is wholly immaterial, where the record shows that the judgment was entered in a case wherein malice was the gist of the action, and the judgment creditor files a motion for a capias based on the record.
    3. Execution, § 278

      —when capias ad satisfaciendum may issue. The filing of a creditor’s bill by the judgment creditor does not cut off his right to resort to the remedy provided by statute for the enforcement of the judgment by capias, where the judgment is unsatisfied.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


author: Per Curiam :

text:
    Thomas O’Laughlin, Appellee, v. Mutual Health and Accident Association of America, Appellant. U. C. Weinstock, Appellee, v. Centralia Gas and Electric Company, Appellant.
    Judgments, § 4

      —when may he reverseé for want of court’s legal existence. Judgments entered by a City Court having no legal existence are wholly void and of no effect and may be reversed on appeal for the reason that the court had no jurisdiction.
    Appeal from the City Court of Centralia; the Hon. Albert D. Rodenberg, Judge, presiding.
    Heard in this court at the March term, 1912.
    Reversed.
    Opinion filed May 1, 1914.
    Kagy & Vandervort, for appellant Mutual Health & Accident Association.
    L. B. Skipper and W. F. Bundy, for appellee Thomas O’Laughlin.
    W. F. Bundy and Noleman & Smith, for appellant Centralia Gas & Electric Company.
    L. B. Skipper, C. F. Dewand and C. H. Holt, for appellee U. C. Weinstock.

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

   Per Curiam :

These cases both involve appeals from the City Court of Centralia. After these appeals had been heard by this court and opinions prepared in them, but before judgment was entered here, upon said appeals, the Supreme Court of this State in the case of People v. Rodenberg, 254 Ill. 386, held that the city of Centralia had no power under the Constitution to establish a City Court by virtue of the power conferred by the act in relation to courts of record in cities, for the reason that said city was located in two counties.

At the present term of this court, in the case of People ex rel. Smith v. Rodenberg, ante, p. 623, we have affirmed the judgment of the Circuit Court of Marion county, entering judgment of ouster against said Albert D. Eodenberg, who is claiming to exercise the office of judge of said City Court by reason of an election to said office held under the act in relation to courts of record in cities, above referred to. Under these circumstances we have concluded that the judgments in the above entitled causes should be and the same are hereby reversed for the reason that the court which entered the same had no legal existence and was without jurisdiction to hear and determine said causes, and that the judgments entered in said causes were wholly void and of no effect; and leave is given to the respective parties to withdraw records, abstracts and briefs filed by them in said appeals.

Reversed.


text:
    Elizabeth Gordon Smith, Defendant in Error, v. American Corset Company, Plaintiff in Error.
    Gen. No. 19,423.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action in the Municipal Court of Chicago by Elizabeth Gordon Smith against American Corset Company, a corporation, for $165.37 for a balance alleged to be due for salary and expenses while in the employ of defendant under a written contract. Defendant filed a set-off of $305.70 for goods, wares and merchandise furnished to plaintiff and retained by her when she quit her employment. The trial was before the court without a jury, and the court found for plaintiff on her claim and for the defendant on its set-off, and entered judgment in favor of plaintiff for $16. To reverse the judgment, defendant prosecutes error.

      Abstract of the Decision.
    1. Appeal and ebbob, § 1173

      —when questions of Taw not presented for review. Where no written propositions to be held as law in the decision of the case were submitted to the court, trying the case without a jury, no questions of law are presented for review.
    2. Appeal and ebbob, § 1173*—when only the sufficiency of the evidence is reviewable. On review of a judgment entered by a court without a jury, the only question open for consideration is whether the evidence sustains the judgment, where no questions of law were preserved and no questions upon the rulings on the evidence at the trial were preserved in the record or argued by counsel.
    3. Master and servant, § 84*—sufficiency of evidence to sustain recovery for salary. In an action against a corset company for wages and expenses, where there was a defense of set-off for goods furnished to and retained by plaintiff when she quit employment, a judgment for plaintiff held sustained by the evidence.
    Charles W. Espey, for plaintiff in error; John J. Sonsteby, of counsel.
    McEwen, Weissenbach, Shrimski & Meloan, for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    The Quality Car Company, Defendant in Error, v. J. J. Corkill, Plaintiff in Error.
    Gen. No. 19,459.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action in the Municipal Court of Chicago by The Quality Car Company, a corporation, against J. J. Corkill to recover a balance of $142.83 claimed to be due for work and labor performed, materials furnished and storage. The main proof was an account stated. The trial was before the court without a jury. To reverse a judgment in favor of plaintiff, defendant brings error.
    Abstract of the Decision.
    1. Account stated, § 5

      —evidence sufficient to establish. Evidence held sufficient to establish a stated account, where plaintiff hy its bookkeeper proved that it mailed invoices to defendant every time it did work for him, and it appeared that bills were sent to him the first of every month and that he never made a protest or objection to the bills or denied that he owed the money and the defendant admitted he received such bills and did not deny the testimony of the bookkeeper.
    2. Account stated, § 24*—admissibility of boohs of account. In an action on a stated account, plaintiff’s ledger held admissible in evidence to show that items of credit claimed by defendant had been credited to him in the account.
    3. Set-oef and becoupment, § 10*—when claim for unliquidated damages not proper subject of set-off. In an action on an account stated, held that a claim of set-off arising from an entirely distinct and separate transaction for unliquidated damages could not he set off.
    Adams, Candee, Steere & Hawley, for plaintiff in error.
    Miller, Gorham & Wales, for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    Wisconsin Iron and Wire Works, Defendant in Error, v. George W. Stiles Construction Company, Plaintiff in Error.
    Gen. No. 19,470.
    (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 329

      —when evidence insufficient to sustain a recovery ■for the amount sued for. In an action to recover $71.30 claimed to he a balance due for ornamental iron work furnished to defendant, where plaintiff’s prima facie case was waived, and defendant introduced in evidence letters of plaintiff showing that plaintiff had credited the account with items amounting to $12.50, held that a judgment in favor of plaintiff for the amount sued for could not he sustained, and the judgment was affirmed on condition of remittitur of $12.50.
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed on remittitur.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action brought in the Municipal Court of Chicago by Wisconsin Iron and Wire Works, a corporation, against George W. Stiles Construction Company, a corporation, to recover $71.30, claimed to be a balance due on a contract for the furnishing by the plaintiff to the defendant of certain ornamental iron work for a post office. Proof of plaintiff’s prima facie case was waived on the trial. To reverse a judgment in favor of plaintiff for the amount sued for, defendant brings error.
    Sheriff, Dent, Dobyns & Freeman, for plaintiff in error.
    Henry M. Hagan, for defendant in erorr.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    George Shields, Defendant in Error, v. Bergendahl-Bass Engineering & Construction Company, Plaintiff in Error.
    Gen. No. 19,491.
    (Not to be reported in* full.)
    Abstract of the Decision.
    1. Master and servant, § 244

      —when master not liable to servant for negligence of foreman. The master is not liable to the servant for an injury received through the negligence of a foreman while acting as a colaborer with the servant, where the injury is the result of the way in which the common work is done and not of any exercise of the foreman’s authority.
    2. Master and servant, § 248*—when foreman is a fellow-servant. Where a foreman called to two structural iron workers, “come over here, fellows, and we will put this beam in,” and then told them, “you get that end and I’ll get this end,” and the foreman while assisting with his end pulled the beam so that the two iron workers' fell and one of them was -injured, held that the foreman was a fellow-servant of the one injured with reference to the act which contributed to the injury.
    3. Master and servant, § 137*—when rule imposing duty to furnish safe place to worh does not apply. The ordinary rules imposing upon the master the nondelegable duty of furnishing his employes with a reasonably safe place to work do not apply where the work being done by the employe and his fellow-workmen at the time of his injury was in the erection of a building, under conditions which were temporary and constantly changing by reason of the necessities of the work itself.

      Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action by George Shields against Bergendahl-Bass Engineering & Construction Company to recover for personal injuries sustained by plaintiff while employed as a structural iron worker. From a judgment entered upon a verdict in favor of plaintiff for five hundred dollars, defendant prosecutes a writ of error.
    Ralph F. Potter, for plaintiff in error.
    L. W. Carpenter, for defendant in error.

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

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.

4. Master and servant, § 383 —when servant assumes the risk. An. experienced structural iron worker held to have assumed the risk of an injury, where there was no evidence that the conditions under which he was laboring were unusual, it appearing that all the conditions and dangers were as apparent to him as to the employer and there being no claim that any of the conditions or dangers were unknown to him.

5. Master and servant, § 188*—when order of foreman not misleading as to the dangers of the work. An order by a foreman to go to a place and assist in placing a beam, held not to mislead the servant as to the dangers of doing the work.


text:
    L. Fish Furniture Company, Defendant in Error, v. Reliable Storage & Van Company, Plaintiff in Error.
    Gen. No. 19,542.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action in the Municipal Court of Chicago by L. Fish Furniture Company, a corporation, against Elizabeth Caird and Reliable Storage & Van Company, a corporation, in replevin. The writ was served as a summons upon the Storage Company, and no property having been taken upon the writ, the action was changed to trover. Elizabeth Caird was served with a summons, but the action was later dismissed as to her. The plaintiff filed with its statement of claim copies of the instruments relied on to show title, being copies of a note and chattel mortgage from Elizabeth Caird to plaintiff. Defendant Storage Company filed an affidavit of merits stating that it did not at any time store the goods for the plaintiff nor wrongfully take or detain the goods; that it never heard of the chattel mortgage and never had any dealings with plaintiff, and that no demand was made upon it by the plaintiff for the goods. The evidence showed that the woman who was made defendant under the name of Elizabeth Caird had been known by the name of Mrs. E. Johnson ; that she purchased the goods of plaintiff and gave a promissory note in payment, secured by a chattel mortgage, the note and mortgage being executed in her name as Elizabeth Caird; and it appeared that she was known to the Storage Company by the name of Mrs. E. Johnson. A judgment was entered in favor of plaintiff, and defendant brings error.
    Abstract of the Decision.
    1. Chattel mortgages, § 110

      —when persons not chargeable with record notice. A mortgage on personal property made by one who is not the owner of the property, or by the owner in a fictitious name, and placed on record is not constructive notice to anyone dealing with the owner in his true name. The record in such case would give no information nor lead to any knowledge that the mortgage existed upon the particular property.
    2. Chattel mortgages, § 110*—when question of actual notice of mortgage is for jury. In an action against a Storage Company for conversion of goods stored, where it appeared that the plaintiff had sold the goods to a woman who had executed to plaintiff a chattel mortgage thereon in a certain name and that she had stored the goods with defendant under a different name by which she was known, held that defendant Company was not liable unless it had actual notice of the mortgage, and that the court erred in taking the question of whether defendant had such notice from the jury, in restricting the defendant to proof of the value of the goods and in submitting to the jury only the question of the value of the goods.

      Kruse, Peden & Merrick, for plaintiff in error.
    Samuels, Shurtleff & Samuels, for defendant in error.

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

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.

3. Tboveb and convebsion, § 42 —when submission to jury of improper form of verdict is error. In an action of replevin, later changed to trover, submission to the jury of one form of verdict requiring the jury to find defendant guilty of malicious and intentional conversion, held error, there being no such averments in the affidavit for replevin or statement of claim filed, nor any evidence to base it on.


text:
    Matthew F. Bozinch, Defendant in Error, v. Chicago Railways Company, Plaintiff in Error.
    Gen. No. 19,619.
    (Not to Tbe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 19, 1914.
    Rehearing denied June 2, 1914.
    Statement of the Case.
    Action by Matthew F. Bozinch against Chicago Railways Company brought in the Municipal Court of Chicago to recover damages to an automobile caused by a collision with one of defendant’s street cars at a street intersection. Plaintiff recovered a judgment for $409.95, and to reverse the judgment, defendant prosecutes error.
    The street car that collided with plaintiff’s automobile was going west on Chicago avenue on the north track and plaintiff was driving south on Hoyne avenue. Plaintiff’s version of the accident was that as he came to Chicago avenue he slackened up for an eastbound car to pass and when it passed in front óf him he was practically on the westbound track and did not notice the westbound car until it was within two or three feet away from him and he had no time to do anything until he was struck. Defendant’s theory was that when the car reached Hoyne avenue plaintiff had not reached Chicago avenue and that when the street car reached the west cross walk of Hoyne avenue the automobile swerved around the corner and turned directly in front of the car.
    Abstract of the Decision.
    Street railroads, § 144

      —when instruction on contributory negligence not prejudicial. In an action to recover damages for injury to plaintiff’s automobile caused by a collision with a street car,, an instruction telling the jury that plaintiff may recover damages for an injury due to defendant’s negligence notwithstanding his own negligence exposed him to the risk of injury, if the injury to the plaintiff was proximately caused by the negligent act or omission of the defendant, after having such notice of the plaintiff’s danger as would put a prudent man on his guard to use. ordinary care to avoid such injury, held to state the settled law of this State and the giving of the same not reversible error, it appearing that the evidence on behalf of the plaintiff furnished a basis for the instruction, and the jury found that plaintiff’s theory of the accident was correct.
    Edward C. Stearns and Frank L. Kriete, for plaintiff in error; John R. Guilliams and W. W. Gurley, of counsel.
    Aaron R. Eppstein, for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    Edward C. Hart, Defendant in Error, v. William L. Mohr, Plaintiff in Error.
    Gen. No. 19,651.
    (Not to he reported in full.)
    Abstract of the Decision.
    Trover and conversion, § 39

      —when evidence insufficient to establish defendant’s possession. In replevin to recover a desk, where the action was later changed to trover, it appeared the desk was in the possession of a certain company, that the capital stock of such company had been sold to the defendant and was used by the officers of such company after the transfer was made, and that it was always considered a part of the company’s assets and was considered so by the defendant. Held that a judgment for plaintiff could not be sustained, there having been no demand made on the company for the desk, and the evidence being insufficient to show that the desk was ever in defendant’s possession.
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed May 19, 1914.
    Rehearing denied June 2, 1914.
    Statement of the Case.
    Action brought in the Municipal Court of Chicago by Edward C. Hart against William L. Mohr in replevin to recover possession of a desk. Upon failure of the bailiff to obtain the property the action was changed to trover. Plaintiff recovered a judgment for the full value of the desk, and to reverse the judgment defendant prosecutes a writ of error.
    Bunge, Harbour & Chadwick, for plaintiff in error.
    Mather & Hutson, for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    Fritz Christian Boettcher, Plaintiff in Error, v. Schleswig-Holsteiner Gegenseitiger Unterstuetzungs Verein, Defendant in Error.
    Gen. No. 19,669.
    Insurance, § 827

      —when member's attempted change of beneficiary not binding on society. Where a benefit society, organized for the purpose of providing a decent burial of their dead, had no by-law relating to a change of beneficiaries or for a different designation in case of the death of the first-named beneficiary and a member after the death of his first-named beneficiary wrote in a book provided by the society that the death benefit should be paid to a friend, naming him, and the member then moved to Germany and from there wrote a letter to the society that in case of his death in Germany that the death benefit be paid to his brother there, held that the last attempted change of beneficiary was not binding on the society; that the letter did not attempt to cancel the previous designation, and at most only notified the society that if the member should die in Germány he would want the beneficiary changed.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 19, 1914.
    Rehearing denied and additional opinion filed June 2, 1914.
    George H. Mason, for plaintiff in error.
    Silber, Isaacs, Silber & Woley, for defendant in error; Martin J. Isaacs, of counsel.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.

Plaintiff in error brought an action in the Municipal Court of Chicago against the defendant in error on an instrument in writing dated April 21, 1909, by which Henry Boettcher, then deceased, designated the plaintiff in error as beneficiary of certain moneys payable by defendant in error upon his death. On the trial had in the Municipal Court before the , court without a jury, the court found against the plaintiff in error and entered judgment against him for costs.

The record shows that the defendant in error Society is a corporation organized under a special charter granted by the State of Illinois by an Act approved March 10, 1869. The purpose of the Society, among other things as stated in its charter, is to provide for the decent burial of their dead.

Henry Boettcher, the deceased, became a member of the Society in 1875, and so remained until his death, May 23,1909. The by-laws of the Society provide that in the event of the death of a member who has belonged to the 'Society more than one year, the survivors receive the sum of two hundred and fifty dollars for burial expenses.

The only provision of the by-laws with reference to designation of a beneficiary by the member is paragraph 5 of article 5 of the by-laws, which provides:

“Every new member shall, on the evening of his initiation, write the name of the person or persons to whom the Society is obliged to pay the death benefit on his death, in a book kept by the Society therefor.”

The by-laws contain no provision for a change of beneficiaries, or for a different designation in case ‘the first-named beneficiary should die. The Society provided the book mentioned in the by-laws, which is called its “Testament Book.” On the night of his initiation, Henry Boettcher wrote his wife’s name, “Frau Boettcher,” in the testament book as his beneficiary. She afterwards died and thereafter, on February 1, 1908, he wrote in the testament book the following: “I wish that the death benefit should be paid to my friend Wilhelm Kuehl,” and subscribed his name. Sometime afterwards, Henry Boettcher removed to Wandsbeck, Germany, and on April 21, 1909, signed a certain document which was mailed to and received by the Society shortly after its date. The document reads as follows:

“Worthy Officers and Members:
“I deem it my duty to make arrangements regarding the payment of the death benefit coming to me. I have, of course, made arrangements in the testament book of the Society, bnt these concern only the case if I die in America. In the event that I should die in Q-ermany, I would like to have the following observed as my will. With my decease here, I order that the full death benefit be paid to my brother, Fritz Christian Boettcher, residing in Wandsbeck, Bennbahn Str. 81. This is my last Will, and I sign with a hearty brotherly greeting.”

Fritz Christian Boettcher, the plaintiff, paid the funeral expenses of his brother, and on May 26, 1909, wrote the Society giving notice of death and claiming the death benefit. The Society, by its secretary, acknowledged the notification and claim by letter in which it informed him that it could not at that time do anything in the matter; that information had been brought to the Society that the deceased had left a will which had not yet been opened, and “what this contains I cannot tell you up to the present. As soon as the Society has knowledge thereof, we will give you the information.”

Subsequently, in response to another letter written by the plaintiff in error, the secretary wrote him under date of October 12, 1909, informing him that the Society had decided, in accordance with its constitution and by-laws, to pay out the burial money of his deceased brother to Wilhelm Kuehl. The record shows that the Society did pay the death benefit of two hundred and fifty dollars to Wilhelm Kuehl. The payment was made, however, after the Society had received the instrument above quoted.

The trial court held that the attempted change of beneficiary was void and found the issues and entered judgment against the plaintiff in error.

The instrument of designation, under which the plaintiff in error claims, construed in its most favorable light, does not attempt to cancel the previous designation made by the deceased in the testament book. The paper does not even purport or attempt to change beneficiaries; it at most notifies the defendant Society that if the member should die in Germany he would want the beneficiary changed. We think it had no effect and that the trial court did not err in ignoring the designation to the plaintiff in error.

The judgment is affirmed.

Affirmed.

, Additional opinion on petition for rehearing.

It is urged in the petition for rehearing that the object of the insurance in question was for burial purposes. This does not affect the designation made. Without doubt such was the purpose, and Wilhelm Kuehl received the money, not as a gift, but impressed with a trust to use it or see that it was used to defray the burial expenses of Henry Boettcher. That trust, however, cannot be enforced in an action against plaintiff in error which paid the money in accordance with the designation made in pursuance of the by-laws.

Rehearing denied.


author: Mr. Justice Barnes

text:
    Tom B. Meglemry, Appellee, v. Gebhardt Chili Powder Company, Appellant.
    Gen. No. 19,317.
    (liot to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action by Tom B. Meglemry against Gebhardt Chili Powder Company, a corporation, to recover damages for wrongful termination of a contract of employment. Plaintiff was employed by defendant under a written contract as defendant’s exclusive agent in certain territory for a period of two years to sell its manufactured food products. The contract became effective October 23, 1911. ' Plaintiff was discharged April 26, 1912, and began the suit May 24, 1912. Plaintiff recovered a verdict for $2,325. A remittitur of $825 was made and judgment was entered for $1,500, from which judgment defendant appeals.
    Abstract of the Decision.
    1. Pbincipai, and agent, § 23

      —when defense as to amount of sales not available in suit for wrongful discharge. In an action by an agent for his wrongful discharge from employment, a defense that plaintiff did not sell a certain amount of defendant’s goods “during the first year” as required by the contract, held not available, where the first year of the contract had not ended and it appeared that such provision of the contract was waived by defendant.
    2. Pbincipai, and agent, § 13*—when defense of unauthorized sales on credit not sustained by the evidence. In an action by an agent for wrongful discharge, a defense that plaintiff made sales to persons whose credit had not been previously approved by the defendant, held, not supported by competent proof, where the only thing in the record relating to it is an assertion in one of defendant’s letters to plaintiff that sales made to two firms were contrary to instructions and that they had been charged to his account, and there was no affirmative proof of what instructions were given or how they were violated, also held, proof insufficient to support defense of “special offers” and sales without defendant’s sanction.
    3. Evidence, § 165*—when letters amount to hearsay or self-serving declarations. In an action by an agent against his principal for wrongful discharge from employment, letters from defendant to plaintiff before and after the discharge and letters received by defendant from third persons, purporting to give information of “guaranteed sales,” and other irregularities of plaintiff, held to amount to hearsay or self-serving declarations on the part of defendant and incompetent as against plaintiff, except in so far as plaintiff’s letters could be construed as an admission of their contents.

      James R. Ward and Oscar W. Kuhn, for appellant.
    Isaac S. Rothschild, for appellee.

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

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

   Mr. Justice Barnes

delivered the opinion of the court.

4. Damages, § 61 —measure of damages when agent wrongfully discharged by his principal. "Where an agent was employed for a term of years to introduce new commodities into a new field under a contract whereby he was to receive a commission on goods actually sold, pay his own expenses, employ his own men, and maintain an office at his own expense, the measure of damages for his wrongful discharge may be based on what he might earn during the unexpired term of his contract so as to include future profits, and damages need not be confined to proof of commissions earned before and owing at the time of the commencement of the suit.

5. Municipal Court oe Chicago, § 8*—jurisdiction of attachment in aid. The Municipal Court is not without jurisdiction to issue a writ of attachment in aid in a case of the first class or where the damages are unliquidated, there being no such restriction in sections 19 and 28 of the Municipal Court Act, J. & A. Iff 1928, 3340, nor in section 31, ch. 11, R. S., J. & A. 1f 622.

6. Evidence, § 58*—when proof of a custom competent. In an action by an agent for wrongful discharge from employment, where the defense was that the agent had without authority made “guaranteed sales,” proof of a custom in defendant’s business of making such sales at the time of entering into the contract of employment, held competent to show that a guaranty was included in the terms, where the contract authorized sales upon the terms granted to the trade.

7. Instructions, § 110*—when not objectionable as sanctioning a misjoinder of claims. In an action by an agent for wrongful termination and breach of contract of employment, an instruction given for plaintiff telling the jury that the determination of the question whether there were commissions due for sales actually effected by plaintiff before the termination of the contract, was not affected by the question whether the contract was rightfully or wrongfully terminated, held not amendable to the criticism of sanctioning a misjoinder of claims, as the refusal to pay and commissions was one of the breaches of the contract for which recovery could be had in the suit.

8. Appeal and error, § 1241*—when erroneous instruction cannot be complained of. Appellant is in no position to complain of an instruction as improperly submitting a certain question to the jury where instructions given at his request submitted the same question.


text:
    American Multigraph Sales Company, Defendant in Error, v. Globe Mutual Life Insurance Association, Plaintiff in Error.
    Gen. No. 19,328.
    (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 279

      —when acceptance and use of machine waives warranty. In an action for the purchase price of a multigraph machine, where the defense was that there was a breach of warranty, it appeared that the defendant had kept and used the machine for more than a year from the date of its delivery and that he had employed it for other purposes than that referred to in the warranty. Held that such acceptance and use of the machine constituted a waiver of the breach of warranty and that the warranty did not survive acceptance.

      Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913,
    Affirmed.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action by American Multigraph Sales Company against Globe Mutual Life Insurance Association to recover the purchase price of a multigraph machine and certain accessories. Defendant sought to avoid payment on the ground that it did not comply with a certain warranty. The contract contained the words, “Machine warranted to do work as sample attached.” The sample was one of defendant’s circulars printed on both sides. The machine would print both sides of a circular as shown by the sample with electrotype but not with loose type, and defendant claims that the warranty related to the use of loose type and not electrotype. To reverse a judgment in favor of plaintiff, defendant prosecutes error.
    M. H. Hoey, for plaintiff in error.
    Haight, Brown & Haight, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Englewood Sash & Door Company, Defendant in Error, v. Maggie Goetzinger and Richard Stark, Plaintiffs in Error.
    Gen. No. 19,435.
    1. Municipal Court op Chicago, § 26

      —sufficiency of statement of facts. Under section 23 of the Municipal Court Act, J. &. A. IT 3335, a statement of facts must include the facts appearing on the trial, the questions of law involved and the decision of the court upon such questions of law, and when presented to be signed should be certified as, or at least appear to be, correct.
    2. Municipal Court op Chicago, § 26*—when statement of facts insufficient. A so-called statement of facts not certified to by the trial judge as correct and containing nothing more than a recitation of testimony of several witnesses, held not to constitute such a statement as is required by section 23, par. 6 of the Municipal Court Act, J. &. A. V 3335.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 19, 1914.
    John E. Erickson, for plaintiffs in error.
    O. D. Olson, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.

The writ of error brings up for review a case in the Municipal Court of Chicago of the fourth class. All the assignments of error relate to proceedings at the trial, but they have not been properly preserved for review.

Section 23, par. 6, of the Municipal Court Act (J. & A. If 3335), makes it the duty of the trial judge, in cases of the fourth and fifth class, to sign, at the election of-the party desiring to preserve matters for review, either a “correct stenographic report” or a “correct statement.” It sets forth three things to be included in the latter: (1) “The facts appearing upon the trial”; (2) “all questions of law involved” in the case; and (3) “the decisions of the court upon such questions of law. ’ ’ Whichever is presented to be signed, it should be certified as, or at least appear to be, correct.

From the record before us it appears that each one of the three parties to the suit below, the plaintiff and two defendants, tendered to the court what is called therein “his statement of facts,” and that the court signed each of them, no two of which are alike. A motion is made by defendant in error to strike each “statement” from the record. The trial judge did not certify that any one of them is “correct,” and, as they are not alike, all cannot be. Certainly the statute does not contemplate that this court shall be required io decide for itself which one is correct, or be called upon to review as many “statements” as there are parties to the action.

But none of the statements contains what is specified in said section for inclusion in a statement, viz., the facts, the questions of law involved and the decisions of the court thereon. Each contains nothing more than a recitation of the testimony given by several witnesses; in other words, a summary of evidence rather than a statement of facts.

While the Municipal Court Act undertakes to designate methods of preserving matters for review in this court and makes a distinction between cases of the fourth and fifth classes (see section 23, J. & A. 3335,) and those of other classes (see sections 22 and 38, J. & A. 3334, 3350), we do not mean to be understood as holding that testimony heard in a case of the fourth or fifth class may not be preserved for review in narrative form as set forth in said statements. But testimony from which facts are to be ascertained cannot he properly designated or certified to as “a statement of facts.” Whatever the document be called, it should be certified to he what it really is. Not only is none of the statements in question the kind of statement contemplated by said section 23, but it is not a statement of facts at all, nor certified in form to he treated as a bill of exceptions. It presents nothing a court of review can recognize as a part of the record. The motion, therefore, to strike each of the so-called ‘‘statement of facts” from the record will be granted, and, as there is nothing left in the record on which error is predicated, there is nothing to review. The judgment must, therefore, be affirmed.

Affirmed.


text:
    Pierce B. Pontius, Defendant in Error, v. Commercial National Safe Deposit Company, Plaintiff in Error.
    Gen. No. 19,462.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action by Pierce B. Pontius against Commercial National Safe Deposit Company, a corporation, to recover for personal injuries sustained by plaintiff while he was a passenger on an elevator operated by defendant. The negligence averred was that the elevator and its attachments and appliances were allowed to become and remain out of order and in an unsafe and dangerous condition and that there was a lack of skill and negligence in the operation thereof.' To reverse a judgment in favor of plaintiff for four hundred seventy-five dollars, defendant brings error.
    Abstract of the Decision.
    1. Elevators, § 29—when recovery for personal injury to passenger proper. In an action for personal injuries sustained by plaintiff while he was a passenger on an elevator operated by defendant, where the negligence, if any, was manifestly a failure of defendant to make inspection, held that the nature of the case was such that negligence would be presumed from the happening of the accident and that a verdict for plaintiff was proper in the absence of evidence to rebut the presumption.
    2. Trial, § 110*—sufficiency of motion to strike evidence. Refusal of court to strike out an expression of opinion of a witness held not error where the motion did not point specifically to such evidence.
    3. Appeal and error, § 1463*—when refusal to strike out evidence not reversible error. In an action for personal injuries, refusal of court to strike out an expression of opinion by plaintiff’s attending physician to the effect that he found a painful spot over the lower part of the spinal column, because such symptom was subjective, held not reversible error.
    4. Appeal and error,, § 573*—when objection to instructions not preserved for review. Instructions given cannot be complained of where the record does not show any objection or exception thereto.
    F. J. Canty and R. P. Garrett, for plaintiff in error.
    Clyde C. Colwell, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Thomas Storch, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 19,496.
    (Not to be reported in full.)
    Abstract of the Decision.
    Cabbiebs, § 476

      —when recovery for injury to passenger while alighting not sustained by the evidence. In an action against a street railway company to recover for injuries sustained by a passenger alleged to have been caused by the sudden starting of the car while he was attempting to alight, a verdict for plaintiff held against the weight of the evidence, it appearing that plaintiff was the only witness who testified the car stopped before he attempted to alight, and was uncorroborated and the testimony of several witnesses for defendant and one for plaintiff tending strongly to show that plaintiff stepped off the car while it was slacking up and before it came to a stop.
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action by Thomas Storch against Chicago City Railway Company to recover for personal injuries sustained by plaintiff while he was alighting from a car on which he was a passenger. The negligence charged was that defendant started the car suddenly as plaintiff attempted to alight. To reverse a judgment in favor of plaintiff for five hundred dollars, defendant brings error.
    Warren D. Bartholomew and A. C. Wild, for plaintiff in error; Leonard A. Busby, of counsel.
    Jones, Keener & Posvic, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    S. F. Sayrs, Defendant in Error, v. John Yangas and E. F. Thompson, Plaintiffs in Error.
    Gen. No. 19,554.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Damages, § 230

      —right to a jury to assess damages on default. Where a default is taken against defendants for want of a sufficient affidavit of merits, they are not entitled to a jury to assess the damages where no specific demand for a jury was made after the default, notwithstanding they demanded a jury on entering their appearance.
    2. Appeal and error, § 1877*—defenses to action on stay bond. In an action on a stay bond given in a case where a judgment for rent and possession of premises was affirmed, an affidavit of merits presenting a set-off for the value of the improvements made on the premises, held not a proper defense to the action.
    3. Municipal Court oe Chicago, § 19*—when entry of judgment against one joint defendant no bar to entry of joint judgment. In an action on a stay bond in the Municipal Court, the fact that a judgment was entered against one of two defendants held not to release the other from further liability, where the judgment was vacated within thirty days from the entry of the judgment and a joint judgment was entered against them,

      Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinon filed May 19, 1914.
    Statement of the Case.
    Action by S. F. Sayrs against John Tangas and E. F. Thompson as principal and surety respectively on a stay bond given in a case wherein a judgment for rent and possession of the premises was affirmed. From a judgment in favor of plaintiff, defendants bring error.
    Charles T. Farson and Francis H. Clark, for plaintiffs in error.
    M. B. Waltz and Henry T. Chace, Jr., for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Clark

text:
    Nora Varley, Administratrix, Appellee, v. The Chicago & Alton Railroad Company, Appellant.
    Gen. No. 19,374.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed May 19, 1914.
    Rehearing denied June 2, 1914.
    Statement of the Case.
    Action by Nora Varley, administratrix of the estate of Julia Varley, deceased, against The Chicago & Alton Bailroad Company to recover for the wrongful death of the deceased. The facts show that deceased and a girl friend attempted to cross defendant’s railroad tracks at a street crossing while the gates were down and were compelled to stop by an approaching train on the southbound tracks; that they had passed over the northbound track and were standing between the two tracks, when a train was approaching on the northbound track, and that one Beean, who was with the girls and had remained outside the gates, realized their danger, rushed to them and attempted to protect them either by getting them in the space between the tracks or by pulling them over the northbound track, and while doing so he and the plaintiff’s intestate were both struck by the train on the northbound track and killed. From a judgment in favor of plaintiff, defendant appeals.

      Abstract of the Decision.
    Railroads, § 738

      —when recovery for death of pedestrian at street crossing not sustained hy evidence. In an action against a railroad company for the wrongful death of plaintiff’s intestate where the facts showed that the deceased and another girl attempted to cross the defendant’s tracks at a street crossing when the gates were down and that the deceased was struck hy a train, held that the evidence was insufficient to show that the deceased was in the exercise of due care for her own safety and that a verdict for plaintiff could not he sustained.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and James H. Winston, of counsel.
    Francis A. McDonnell and Munson T. Case, for appellee; Arba N. Waterman, of counsel.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Mayer J. DeZeichner, Defendant in Error, v. Lamm & Company, Plaintiff in Error.
    Gen. No. 19,385.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action by Mayer J. DeZeichner against Lamm & Company, a corporation, to recover salary due as a designer of men’s clothing in defendant’s factory. The defense was that plaintiff was discharged for incompetency. There was a trial before the court and a finding and judgment entered in favor of plaintiff for $5,849.98. To reverse the judgment, defendant prosecutes a writ of error.
    The suit was based upon the following contract of employment:
    “Agreement made and entered into this first day of June, A. D. 1911, by and between Lamm & Company, a corporation doing business in the City of Chicago, party of the first part, and Mayer J. DeZeichner, now of the City of Chicago, party of the second part, witNESSETH:
    Whereas, the party of the first part is engaged in the business of manufacturing and dealing in men’s clothing and has a factory at the City of Chicago, and is desirous of employing the party of the second part as a designer and manufacturer, and
    Whereas, the party of the second part is a designer and manufacturer of men’s clothing and is desirous of entering the employ of the party of the first part,
    Now, THEREFORE, THIS AGREEMENT WITNESSETH: That for and in consideration of the sum of One Dollar, lawful money of the United States, the receipt whereof is hereby acknowledged, and in further consideration of the mutual covenants and conditions hereinafter expressed, the parties to these presents agree:
    First: The party of the first part hereby engages the services of the party of the second part as a designer and manufacturer in the business conducted by it for a period of one year from the date of this agreement, that is to say up to May 31,1912, and for such further time as is hereinafter provided for.
    Second: The party of the second part hereby accepts such employment and agrees to devote his entire time, skill, energy and attention and the best of his ability as such designer and manufacturer in the business of the party of the first part.
    Third: The party of the second part, during the time of his said employment, shall have full and exclusive charge of the mechanical branch of the' business of the party of the first part; shall have full and exclusive charge of the designing and cutting and manufacturing of the men’s clothing; shall originate the styles and designs, and in creating styles shall take into consideration the suggestions as to weave and style made by the party of the first part.
    Fourth: The party of the first part shall furnish to the party of the second part all facilities required by the party of the second part in the performance of his said duties, and the party of the second part shall have full and exclusive authority to engage or discharge such employees as may be necessary to be employed in the manufacturing department of the party of the second part, due regard always being had to the welfare and best interests of the party of the first part.
    Fifth: As and for compensation for the services so to be rendered by the party of the second part to the party of the first part, the party of the first part agrees to pay to the party of the second part the sum of Ten Thousand Dollars ($10,000.00) per annum, payable in equal monthly installments of Eight Hundred Thirty-three Dollars and Thirty-three Cents ($833.33) on the first day of each month, the first installment to be paid to the party of the second part the first day of July, 1911.
    Sixth: The party of the second part shall be allowed vacation for a period not exceeding two weeks in the aggregate, whenever the condition of the business of the party of the first part may warrant his so taking vacation. No deduction is to be made from the salary of the party of the second part on account of such vacation.
    Seventh: At the expiration of the term of one year, the said employment shall not terminate but this agreement shall continue in force and effect thereafter, subject, however, to the right of either party to terminate said employment by giving to the other party three months’ previous notice in writing of its or his intention so to terminate the same, and said employment shall terminate at the end of three months from the time of giving notice.
    In Witness Whereof/’ etc.

      Abstract of the Decision.
    1. Master and servant, § 82

      —admissibility of evidence to show ineompetency of employe. In an action against a manufacturer of men’s clothing to recover salary due plaintiff as a designer, where the defense was that plaintiff had been discharged for ineompetency, rejection of the testimony of retail dealers, as to the character of the clothing received by them while plaintiff was in defendant’s employ, offered to show plaintiffs ineompetency held error, it appearing under the terms of the contract that plaintiff was to act not only as designer but also to have charge of the mechanical branch of the business, with authority to engage or discharge employes.
    2. Master and servant, § 30*—when ineompetency ground for discharge. In contracts for personal services, the ineompetency of the employe to perform the services which he has undertaken, is a sufficient ground for discharge, though he was hired for a definite period.
    Simon La Grou, for plaintiff in error.
    Daniel P. Trude, Thomas J. Peden and Roy C. Merrick, for defendant in error.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Robert Porter by Cora Porter, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 19,449.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action by Robert Porter, a minor, by Cora Porter, his next friend, against the Chicago City Railway Company to recover for personal injuries sustained by plaintiff, a boy ten years of age. Plaintiff alighted from a northbound car at a street intersection and attempted to cross the street by passing behind the rear end of the car and was struck by a southbound car. To reverse a judgment in favor of plaintiff for five hundred dollars, defendant brings error.
    Abstract of the Decision.
    1. Carriers, § 438

      —when alighted passenger guilty of contributory negligence in crossing tracks. In an action against a street railway company to recover for personal injuries, where it appeared that plaintiff got off' a car at a street intersection and in passing around the rear end of the car to cross the street was struck by another car going in the opposite direction, held that a judgment for plaintiff could not be sustained, there being no evidence that plaintiff was in the exercise of any degree of care, and it appearing that he attempted to cross the track without looking or attempting to ascertain whether he could do so in safety.
    2. Negligence, § 198*—when contributory negligence is a question of law. In a personal injury case, where the facts are undisputed and but one reasonable inference can be drawn therefrom, the question of contributory negligence, as well as the question of negligence, becomes one of law for the court.
    Warren D. Bartholomew and A. C. Wild, for plaintiff in error; Leonard A. Busby, of counsel.
    Charles E. Carpenter and Harry A. Barnhardt, for defendant in error.

      See lUinois Notes Digest, Veis XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


text:
    John Collins by James Collins, Plaintiff in Error, v. City of Chicago and Zuttermeister Ice Company, Defendants in Error.
    Gen. No. 19,466.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action by John Collins, a minor, by James Collins, his next friend, against The City of Chicago and Zuttermeister Ice Company to recover for personal injuries sustained by plaintiff by being’ run over by an ice wagon. Plaintiff, a boy nine years of age, with three, other boys got upon the rear steps of one of the ice wagons of the Zuttermeister Ice Company after it was about to move off after making a delivery of ice. This wagon was followed by another wagon of the Ice Company, and after going some distance one of the wheels of the first wagon went into a hole in the street and plaintiff fell to the pavement and was run over by the second wagon and injured. The declaration charged the City with negligence in permitting the street to be out of repair and charged the Ice Company with negligence in driving its wagons upon such a street at a high and dangerous rate of speed. At the close of 'all the evidence the court directed a verdict in favor of defendants. To reverse the judgment entered on the verdict, plaintiff prosecutes a writ of error.

      Abstract of the Decision.
    1. Master and servant, § 846

      —when act of servant in permitting hoy to ride on wagon not an act of the master. The act of the driver for an ice company in permitting a boy to ride on the wagon is an act done hy the driver while engaged in his employer’s work, hut not done as a means or for the purpose of performing that work, and is not deemed to be an act of his employer.
    2. Negligence, § 16*—duty of owner of vehicle to trespasser riding thereon. Where a person injured while riding on a wagon is a trespasser, the owner of the vehicle owes no duty to him other than to not injure him wantonly or wilfully.
    3. Master and servant, § 867*-—sufficiency of evidence. Where a boy riding on an ice wagon fell off when a wheel went into a hole in the street and another wagon of the Ice Company ran over him, held in an action against the Ice Company for the injuries that the evidence was insufficient to show that the driver of the first wagon knew he was on the wagon or that the driver of the second wagon was negligent.
    4. Municipal corporations, § 968*—when defective condition of street not proximate cause of injury. Where a hoy while riding on the rear end of a wagon fell off when a wheel went into a hole in the street and was run over hy another wagon and injured, held that the defective condition of the street was not the proximate cause of the accident so as to render the City liable, it appearing that the driver of the wagon might easily have avoided the hole, and that the hoy was “stealing a ride” on the wagon.
    Rankin, Howard & Donnelly, for plaintiff in error.
    William H. Sexton and N. L. Piotrowski, for defendant in error City of Chicago; David R. Levy, of counsel.
    Quin O’Brien and O. A. Arnston, for defendant in error Zuttermeister Ice Company; John P. McKinley, of counsel.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Joe C. Hermann, Defendant in Error, v. Felix Uhry, trading as F. Uhry & Company, Plaintiff in Error.
    Gen. No. 19,482.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Action by Joe C. Hermann against Felix Uhry, trading as F. Uhry & Co., to recover damages alleged to have been suffered by the plaintiff by reason of his wrongful discharge by the defendant. To reverse a judgment in favor of plaintiff for two hundred and forty-five dollars, defendant brings error.
    The contract for services was in writing, being made September 14, 1912, by its terms to end September 14, 1913. Commissions on sales of ten per cent, were provided for. The contract had these additional provisions :
    “Party of the first part agrees to allow party of the second part a drawing account of twenty-five dollars ($25.00) per week and an additional thirty-five dollars ($35.00) on the first day of every month during the term of this contract, same to be charged against the before mentioned commissions.
    The aforementioned drawing account is to terminate if the party of the second part becomes incapacitated either by illness or accident, and to be resumed again on his entering upon his duties; said party of the second part being amply provided with sickness and accident insurances.
    The party of the first part agrees to make a settlement in full with party of the second part on or about January 1st, on or about July 1st and upon termination of this contract.”
    It would appear that from the date of the contract until November 16,1912, plaintiff received weekly payments of twenty-five dollars and the additional monthly payment of thirty-five dollars in accordance with the provisions of the contract, and the plaintiff on December 2nd was told that Ms services were no longer required. Plaintiff’s statement of claim was filed January 8, 1913.
    Abstract of the Decision.
    Master and servant, § 52

      —when provision in contract for advancement may he considered in determining measure of damages for wrongful discharge. A saleman’s employment contract providing that the salesman shall he allowed a drawing account of twenty-five dollars per week and an additional sum of thirty-five dollars on the first day of every month, to he charged against commissions, construed to provide for the payment of such sums in any event and that such allowances would constitute a minimum estimate of the salesman’s services, and furnish a fair criterion in determining the measure of damages in a suit for wrongful discharge from employment.
    Sabath, Levinson & Stafford, for plaintiff in error.
    Smith & Wallace, for defendant in error; Carl L. V. Exselsen, of counsel.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Seaver E. Smeby, Defendant in Error, v. Lorenz Grupczynski, Plaintiff in Error.
    Gen. No. 19,641.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 19, 1914.
    Rehearing denied June 2, 1914.
    Statement of the Case.
    Replevin by Seaver E. Smeby against Lorenz Gropczynski to recover possession of certain articles of personal property. The court found the right of property in plaintiff and entered judgment upon the finding, damages being fixed at one cent. To reverse the judgment, defendant brings error.
    Abstract of the Decision.
    Sales, § 422

      —when contract is one of conditional sale. A written contract providing that if the party of the second part would make payments and perform certain covenants on his part, the party of the first part would sell and transfer certain personal property,
      held to constitute a contract of conditional sale entitling the party of the first part to repossess himself of the property, where payments had not been made under its terms, the interest of no third party having intervened.

      The parties had entered into a contract in which the plaintiff was referred to as party of the first part and the defendant as party of the second part, for the sale of certain real estate and personal property, including' the property recovered in the present proceeding, consisting of a horse, cash register, etc. The contract referred to reads: ‘ That if the party of the second part shall first make the payments and perform the covenants hereinafter mentioned on his part to be made and performed, the said party of the first part hereby covenants and agrees to convey and assure to the said party of the second part” certain described real estate. Then follows: “and to sell and transfer one cash register,” etc. The defendant assigned his interest in the contract to one Brabanski except as to a portion of the personal property. The terms of the contract were not complied with by Brabanski or the defendant as to making payments, and plaintiff after recovering possession of the real estate and personal property obtained by Brabanski began this suit to recover the personal property retained by the defendant.
    C. E. Heckler, for plaintiff in error.
    George Frantzen, for defendant in error.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Chicago Telephone Company, Defendant in Error, v. Eliza Haley, Plaintiff in Error.
    Gen. No. 19,670.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 966

      —when record presents no question for review. On writ of error to review a judgment in replevin where there is nothing for review except the common-law record which contains nothing but the replevin affidavit, writ and bond, the entry of defendant’s appearance and the judgment order, the latter reciting that evidence was heard, but such evidence was not preserved in the record, held in the absence of any irregularities on the face of the record there was nothing to review.

      Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed May 19, 1914.
    Statement of the Case.
    Replevin by Chicago Telephone Company against Eliza Haley to recover a telephone equipment of the value of fourteen dollars. To reverse a judgment in favor of paintiff, defendant brings error.
    Plaintiff in error undertook to handle her own case in this court.
    Eliza Haley, per se.

    Holt, Cutting & Sidley, for defendant in error.

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

   Per Curiam.

2. Appeal and error, § 866*—when abstract insufficient. Where what is designated an “abstract” contains nothing more than a party’s own statement of what took place at the trial, and is not an abstract of anything preserved in the record, the statements therein cannot he considered.


author: Mr. Justice Graves

text:
    Nellie M. Staat, Defendant in Error, v. William H. Coughenour, Plaintiff in Error.
    Gen. No. 18,619.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 132

      —when denial of motion to set aside default not an abuse of discretion. On motion to set aside a default judgment entered for failure of defendant to file his appearance in pursuance of a rule on him to do so two weeks before the entry of the judgment, the action of the court in overruling the motion held not an abuse of discretion, it appearing that the motion was not made until twenty-eight days after the judgment was entered and no reason shown by the affidavit in support of the motion why defendant did not hire an attorney and have his appearance entered before the default and before the judgment was entered and where no meritorious defense is shown.

      Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed May 20, 1914.
    Statement of the Case.
    Motion by William H. Coughenour to set aside a default judgment entered against him in favor of Nellie M. Staat. To reverse an order overruling the motion, Coughenour prosecutes a writ of error.
    Lewis Edward Dickinson, for plaintiff in error.
    A. W. Fulton, for defendant in error.

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

   Mr. Justice Graves

delivered the opinion of the court.

2. Judgment, § 127*—when essential to set aside a default judgment. It is only where a meritorious defense exists and the default is not due to the negligence of the party defaulted that a judgment following such default will be set aside to let the party in to make a defense on the merits that by the exercise of diligence would have been presented before the default.


author: Mr. Presiding Justice Graves

text:
    The People of the State of Illinois for use of County of Cook and A. C. Wegner ex rel. A. C. Wegner Informer, Plaintiff in Error, v. Columbian National Life Insurance Company, Defendant in Error.
    Gen. No. 18,701.
    1. Insurance, § 17

      —who may prosecute suit for penalties for violation of act prohibiting discriminations. Under section 29, ch. 73, Hurd’s R. S. 1911, J. &. A. If 6493, providing a penalty for violation of the act to prevent unjust discriminations by life insurance companies and providing that the informer shall be entitled to one-half thereof, the suit for the penalty can be prosecuted only by the State’s Attorney.
    2. Penalties, § 11*—who may prosecute suit. Where a statute provides that a penalty shall be sued for by the State’s Attorney in the name of the People, the suit cannot be maintained in the name of a private person, and the fact that an informer of a violation of the statute is entitled to one-half of the penalty when collected does not give him the right to maintain the action in his own name or to control the action brought in the name of the People.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Dismissed.
    Opinion filed May 20, 1914.
    Frank H. Culver, for plaintiff in error.
    Holt, Wheeler & Sidley, for defendant in error.

      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.

A suit was begun in the Municipal Court by plaintiff in error to recover from defendant in error the penalty provided by section 29 of chapter 73, Hurd’s E. S. 1911. (J. & A. U 6493.) A judgment was entered in that court in bar of the plaintiff’s right to recover. This writ of error is prosecuted to reverse that judgment. The right of plaintiff in error, who was not the State’s Attorney in Cook county, to prosecute such a suit is challenged, by defendant in error on the ground that the statute creating the offense and providing the penalty sued for also provides that suit to recover the same must be brought by the State’s Attorney of the proper county.

Plaintiff in error has not favored this court with any suggestions in support of his right to so prosecute. Neither has the court of last resort in this State passed directly on the question so far as we are able to discover.

That part of section 29, chapter 73, Hurd’s E. S. 1911, bearing on the question, reads:

“Any such life insurance company or association which shall transact its business in this State in violation of the provisions of this Act, shall, together with the agent or agents so unlawfully transacting said business, jointly and .severally, be subject to a penalty of not less than Five Hundred Dollars ($500.00), or more than One Thousand Dollars ($1000.00) to be sued for and recovered in the name of the people of the State of Illinois, by the State’s Attorney of the county in which such agent or agents may reside, or in the county in which the offense is committed. One-half of said penalty, when recovered, shall be paid into the treasury of said county, the other half to the informer of such violation. And it is hereby made the duty of the auditor of public accounts, upon conviction had as aforesaid, or penalty recovered against any such company, or the agent thereof, for any violation of this act, at once to revoke, cancel and annul the certificates of authority issued to any such agent by the auditor of public accounts.”

It is a familiar rule that where a statute provides for the doing of a certain thing in a particular manner, it by implication forbids the doing of that thing in any other manner. 36 Cyc. 1122.

The Supreme Court in Confrey v. Stark, 73 Ill. 187, said:

“It is a uniform rule, well recognized by all courts, where a statute gives a penalty and prescribes the form of action in which the remedy may be had, that courts are powerless to change the remedy and permit a recovery to be had in another form of action. The will of the General Assembly is supreme, and must be obeyed as expressed. ” See also Gaddis v. Richland County, 92 Ill. 119, and Taylor v. Taylor, 66 W. Va. 238.

In People ex rel. Jones v. North Chicago Ry. Co., 88 Ill. 537, a private individual filed a petition for leave to file an information in quo warranto. The statute at that time provided:

“The Attorney General or State’s Attorney of the proper county, either of his own accord or at the instance of any individual relator, may present a petition. * * *

In determining the correctness of the ruling of the lower court in denying the prayer of that petition, the Supreme Court said:

< £ There is nothing here that authorizes anyone other than the Attorney General or State’s Attorney to present a petition for leave to file an information.”

The case of Chicago & A. R. Co. v. Howard, 38 Ill. 414, was a qui tam action to recover a penalty provided by statute against any railroad company that should fail to sound a whistle or ring a bell as its train approaches the crossing of a public highway. Suit was begun by a private individual and the point was made as here that the same should have been begun by the State’s Attorney. The court pointed out that there were two sections under which the penalty could be recovered, namely, sections 42 and 38; that section 42 provided that the penalties may be sued for by the State’s Attorney, and that section 38 provided that the same might be sued for by the common informer in his own name. The court in disposing of the objection held that the word “may” in section 42 must be construed “shall” and that suits begun under that section must be brought by the State’s Attorney.

Various statutes in this and other States contain provisions expressly permitting the informer to bring such suits in his own name, and many others do so by implication, but we believe no case can be found where the statute provides that the penalty shall be sued for by the State’s Attorney in the name of the People, where it has been held that suit may be begun in the name of a private person. On the contrary, it has been held that the fact that the informer would be entitled to one-half of the penalties when collected would not give him either the right to sue in his own name or to control the action brought in the name of the People. Smith v. Look, 108 Mass. 139. It has also been held that in such cases even the name of the informant need not be mentioned in the information, Confiscation Cases, 7 Wall. (U. S.) 454. The theory on which most of these cases rest seems to be that the interest of the informer begins when the penalty is collected by the proper officer of the State; that he is only interested to the extent that one-half of the fund must be paid to him when collected, and that he has no vested interest in or control over the litigation by means of which it is collected. Confiscation Cases, 7 Wall. (U. S.) 454; U. S. v. Morris, 10 Wheat. (U. S.) 246.

While not conclusive of the question under consideration, it is interesting to note that every case cited by-plaintiff in error in his brief in support of his contentions that defendant in error is guilty of a violation of sections 27, 28 and 29 of chapter 73, R. S. (J. & A. Í1F 6491-6493), namely, People v. Hartford Life Ins. Co., 252 Ill. 398; People v. Commercial Life Ins. Co., 247 Ill. 92; Metropolitan Life Ins. Co. v. People, 209 Ill. 42, and Franklin Life Ins. Co. v. People, 200 Ill. 619, was prosecuted by the State’s Attorney of the-proper county in the name of the People of the State.

The statute under consideration is explicit in its terms. It provides that the penalty shall “be sued for and recovered in the name of the People of the State of Illinois, by the State’s Attorney” of the proper county and that, “One-half of said penalty when recovered shall be paid into the treasury of said county, the other half to the informer of such violation.” There can be no doubt that by those provisions every other mode of procedure to recover the penalty than a suit brought in the name of the People and by the State’s Attorney is excluded. Neither can there be any doubt that the interest of the informer in the penalty begins when it is “recovered” in such a suit.

It follows that plaintiff had no right to prosecute the suit in the Municipal Court and has no right to prosecute this writ of error in this court. This writ of error is, therefore, dismissed. See Thomas v. Franklin, 42 Neb. 310.

Writ of error dismissed.