text:
    Paul Matt and Charles Matt, Defendants in Error, v. Jacob Matt, Plaintiff in Error.
    Gen. No. 17,818.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walkeb, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed October 13, 1913.
    Statement of the Case.
    Action by Paul Matt and Charles Matt, minors, by Charles Matt, their guardian, against Jacob Matt to recover Five Hundred Dollars claimed to be due them from the defendant. From a judgment for plaintiffs for sum sued for, defendant brings error.
    Edward R. Litzinger, for plaintiff in error.
    John C. King & James D. Power, for defendants in error.

      Abstract pf the Decision.
    1. Limitation of actions, § 37

      —suits hy minors. In an action by minors to recover money due, defendant cannot invoke the statute of limitations, since under statute of limitations, Ch. S3, § 21; J. & A. If 7216, such .plea is not good.
    2. Guardian and ward, § 24*—power of guardian to contract. An agreement between a person owing minors and their guardian whereby the former agreed to pay when he collected certain mortgages, held not binding on the wards.
    3. Payment, § 9*—agreement as to time of, construed. An agreement to pay a sum due when certain mortgages are collected is not a condition precedent to commencing suit therefor; it only gives a reasonable time to make the collection and pay the sum due.

      See Illinois Notes Digest, Vola. XI to XIV, same topic and section number.

   Mr. Justice Smith

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice P. A. Smith

license: Public Domain

text:
    Arthur Grey, Trustee, Defendant in Error, v. Julius Cohen et al., copartners as Cohen, Bloom & Company, Plaintiffs in Error.
    Gen. No. 17,759.
    1. Municipal court of Chicago, § 13

      —when affidavit of merits sufficient. Affidavit of merits stating that affiant believes he has a good defense to the suit on the merits to the whole of plaintiff’s demand, and that the nature of the defense is that the account sued on was not assigned to plaintiff, and that the account was paid by defendant to the person entitled, held to set up a good defense.
    2. Municipal court of Chicago, § 23*—validity of statute governing writ of error. Section 23 of Municipal Court Act, J. & A. If 3335, in so far as it requires a writ of error to be sued out within thirty days after entry of final judgment, is invalid.
    3. Municipal court of Chicago, • § 25*—time for suing out writ of error. Time for suing out a writ of error from the Municipal Court is governed by the Practice Act.
    4. Municipal court of Chicago, § 26*—when hill of exceptions or statement of facts may he stricken. Where record does not show that bill of exceptions or statement of facts was presented, signed or filed in time provided by statute and does not show an order of extension within such time, a motion to strike such bill of exception or statement of facts from the record must be sustained.
    5. Appeal and error. § 1198*—when interlocutory orders not reviewable. An order permitting or denying an amendment of the record entered long after the final judgment and after a writ of error was sued out cannot be reviewed.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 14, 1913.
    Benjamin E. Cohen, for plaintiffs in error; H. J. Rosenberg, of counsel.
    Silber, Isaacs, Silber & Woley, for defendant in error, and Martin J. Isaacs and James D. Woley, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice P. A. Smith

delivered the opinion of the court.

This writ of error brings before us for review a judgment by default entered in the Municipal Court of Chicago in favor of defendant in error and against plaintiffs in error.

A motion on behalf of defendant in error is interposed (a) to strike from the record the bill of exceptions or statement of facts, and (b) to dismiss the writ of error.

Defendants, plaintiffs in error, entered their appearance April 26, 1911, and filed their affidavit of merits which, on May 4,1911, was stricken from the files. On May 18, 19.11, no amended affidavit of merits having been filed, a judgment was rendered in the Municipal Court in favor of defendant in error, by default for want of appearance.

The record then shows that several orders were made, continuing the cause from time to time; and on June 30, 1911, a motion was made and denied by the court to vacate the judgment of May 18, 1911. On July 20,1911, a motion was made by defendants, plaintiffs in error, to vacate the order of June 30, 1911, which motion was overruled; and the defendants thereupon moved the court to amend the record, and the court ordered the motion to be entered. On July 20, 1911, this writ of error was sued out to review the judgment, and was filed in the Municipal Court. On July 27,1911, an order was entered extending the time thirty days for plaintiffs in error to file a statement of facts, and on August 26, 1911, a bill of exceptions or statement of facts was marked “presented” by the trial judge. On September 13, 1911, it was filed in the Municipal Court nunc pro tunc as of August 26, 1911, and on the same day the motion for leave to amend the record was denied.

The object of the motion to amend the record, as disclosed by the interlocutory bill of exceptions, so-called, was to make the record show that within thirty days, from May 18, 1911, a motion to vacate the judgment was duly made. An order permitting or denying an amendment of the record is interlocutory, and this order was entered long after the final judgment and after this writ of error was sued out, and cannot be reviewed in this proceeding. Encyc. Pl. & Pr. vol. 7, p. 899, Hughes v. Felton, 11 Colo. 489; Hunt v. People, 76 N. Y. 89.

The record does not show that the bill of exceptions or statement of facts was presented, signed or filed within the statutory period of thirty days after the entry of the judgment. It shows no order of extension within that period of time. The motion to strike from the record the bill of exceptions or statement of facts must be sustained. Lassers v. North German Steamship Co., 244 Ill. 570.

It is urged in support of the motion of defendant in error to dismiss the writ of error that it was not sued out within thirty days after the entry of the final judgment as provided in section 23 of the Municipal Court Act (J. & A. ¶ 3335), and Schindler v. Edwards, 134 Ill. App. 637; Benjamin v. Chicago, I. & L. Ry. Co., 140 Ill. App. 312; Chicago Title & Trust Co. v. Kemler Lumber Co., 151 Ill. App. 579; Novelty Tufting Mach. Co. v. Peters & Roberts Furn. Co., 170 Ill. App. 134; Goldstein v. Miller, 173 Ill. App. 664, and Hosking v. Southern Pac. Co., 243 Ill. 320, are cited in support of the position. In the Eosking case, supra, this question was not involved for the reason that the writ of error in that case was sued out within thirty days from the date when the judgment became final, and the language used on page 324 of the opinion must be read with reference to the question before the court. The other cases above mentioned have been overruled by the Supreme Court in Clowry v. Holmes, 238 Ill. 577; David v. Commercial Mut. Acc. Co., 243 Ill. 43; and People v. Hibernian Banking Ass’n 245 Ill. 522, in which the Supreme Court has held that the various provisions of section 23 of the Municipal Court Act, with reference to suing out writs of error to review final orders or judgments of the Municipal Court, are in conflict with the constitution and, therefore, void, and that such writs of error must be sued out under the provisions of the general Practice Act; and, as we are preparing this opinion, our attention is called to the ease of Hoffman v. Paradis, 259 Ill. 111, which holds that in so far as section 23 of the Municipal Court Act limits the time to thirty days within which a writ of error may be sued out to review a final order or judgment of the Municipal Court, that section is unconstitutional and void, and that the time for suing out a writ of error is a matter affecting the practice in the Supreme and Appellate Courts, and is governed by the Practice Act and not by the Municipal Court Act.

The motion to dismiss the writ of error must, therefore, be denied.

The affidavit of defense which was stricken from the record states that affiant verily believes that said defendants have a good defense to this suit upon the merits to the whole of the plaintiff’s demand, and that the nature of the defense is that said account sued upon was not assigned by the American Shirt Company to said plaintiff, and that said account was paid by said defendants to the person or persons entitled to receive the same. In our opinion the affiant set up a good defense, at least in so far as it denied the assignment, and it was erroneously stricken.

As above stated the defendants entered their written appearance when the affidavit of merits or defense was filed. The judgment entered by the court was “by default for want of appearance.” This was contrary to the record and the fact and was irregular.

For the error indicated the judgment is reversed and the cause is remanded.

Reversed and remanded.


author: Mr. Presiding Justice F. A. Smith

text:
    Margaret Ward, Plaintiff in Error, v. The North American Accident Insurance Company, Defendant in Error.
    Gen. No. 17,797.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Mazzini Slubber, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by Margaret .Ward against The North American Accident Insurance Company, a corporation, to recover on a policy of accident insurance. From a judgment sustaining a demurrer to plaintiff’s declaration, plaintiff brings error.

      Abstract of the Decision.
    1. Insurance, § 410

      —rislcs covered by accident policy. An accident policy insuring against injuries while riding as a passenger in a conveyance provided by a common carrier, held not to cover risk of injury to a switchman while riding on the platform of a passenger coach in the discharge of his duties.
    2. Insurance, § 572*—when declaration in suit on accident policy is demurrable. Where it appears from the declaration that the policy set out therein was not in force at the time of the injuries, an averment that the policy was in force at the time of the accident is a mere conclusion of the pleader, and declaration is demurrable.
    3. Insurance, § 577*—when averments of waiver of terms of policy, insufficient. An averment in a declaration that the agent taking the application for insurance knew that the applicant was an employe of a common carrier does not impose a liability upon the insurer contrary to the terms of the policy.
    P. S. Webster and Spencer Ward, for plaintiff in error.
    Edward St. Clair, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.


text:
    John W. Eagleston et al., Appellees, v. Anna Burrell Goodykoontz, Administratrix, Appellant.
    Gen. No. 17,913.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Bill filed by John W. Eagleston and others against Charles H. Goodykoontz to set aside and remove a certain instrument as a cloud on complainants’ title to real estate. From a decree for complainants, defendant appeals.
    Abstract of the Decision.
    1. Quieting title, § 38

      —when recorded contract not a cloud on title. A recorded instrument which is a mere contract to pay money and gives no interest in the land itself is not a cloud which may be set aside on bill filed in equity.
    2. Quieting title, § 36*—cloud, defined. A cloud upon title is a semblance of title, valid on its face, to show the invalidity of which it is necessary to resort to extrinsic evidence. It is an incumbrance apparently valid but actually invalid.
    3. Quieting title, § 36*—effect of recording. The mere recording of an instrument does not make it a cloud on title.
    4. Quieting title, § 36*—when instrument not a cloud. Mere fact that a prospective purchaser believed a recorded instrument to be a cloud and refused to carry out a contract of purchase does not make the instrument a cloud.
    Garnett & Garnett, for appellant.
    No appearance for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.


text:
    Mary Elizabeth McCann et al., on appeal of Mary Elizabeth McCann, Appellants, v. The Ladies of the Maccabees of the World, Appellee.
    Gen. No. 17,951.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 14, 1913.

      Abstract of the Decision.
    1. I ns usance, § 749

      —validity of contract. A contract of insurance outside the object of the creation of the society and beyond the powers conferred upon it by the State of its organization is wholly void.
    2. Insurance, § 749*—when contract ultra vires. Contract insuring an applicant whose age is in excess of the age limit fixed by statute of the State in which the benefit society was organized is ultra vires.

    3. Insurance, | 759*—when parties not estopped to deny invalidity of contract. When a contract of insurance is beyond the power conferred upon the society by existing laws, neither the society nor the other. party to the contract can, by acting on it or assenting to it, he estopped to show that it was prohibited by law.
    4. Insurance, § 752*—when false statement in application avoids certificate. Where by the terms of the certificate a statement in the application concerning age of applicant is a warranty, a substantial breach of such warranty will defeat the certificate unless waived by the society.
    5. Insurance, § 887*—when statements in application not admissible. The mere statement in the application of the age of applicant is 'not evidence of such fact.
    6. Insurance, § 897*—when evidence warrants directed verdict. Where the uncontradicted evidence clearly shows that the member falsely stated her age in the application and that the age of such member was beyond the age limit fixed by statute, the court is justified in talcing the case from the jury and directing a verdict for the plaintiff to the extent of the amount tendered by the defendant.

      Statement of the Case.
    Action by Mary Elizabeth McCann and others against The Ladies of the Maccabees of the World to recover as beneficiaries under a benefit certificate issued by defendant. From a judgment in favor of plaintiffs to the extent of the amount tendered by the defendant, $163.25- and $14 costs, plaintiff appeals.
    William E. Keeley, for appellants.
    Bastrup & O’Neill, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.


text:
    Charles Fuerboeter, Appellee, v. Rittenhouse & Embree Company, Appellant.
    Gen. No. 17,987.
    (Not to be reported in full.)
    Abstract of the Decision.
    Animals, § 13

      —when owner of a horse is negligent in care of such horse. Where a plaintiff driving along a street was thrown from his seat and injured because a horse belonging to a lumber company ran out of such lumber company’s yard and into the plaintiff’s team, frightening his horses, held that such lumber company was not negligent in the management of the horse, it appearing that such horse had never run away before and had never manifested any disposition to run away, hut was a quiet and gentle horse and was in the custody of a careful employe who tried to prevent the runaway, which was due to the horse being frightened by a switch engine which backed into the lumber yard.
    Appeal from the Superior Courji of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by Charles Fuerboeter against Bittenhouse & Embree Company for damages for personal injuries. From a judgment for plaintiff, defendant appeals.
    Adams, Bobb & Adams, for appellant.
    William C. Asay and Jeremiah B. O’Connell, for appellee.

      See Illinois Notes Digest, Yols. XI to XIV, same topic and section number.

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.


text:
    Bertha L. Weil, Appellee, v. Federal Life Insurance Company, Appellant.
    Gen. No. 18,014.
    1. Municipal court of Chicago, § 27

      —what hill of exceptions should contain. Where the rules of the Municipal Court of Chicago are made part of the hill of exceptions and are certified by the judge, a motion to strike such rules from the bill because they were not offered in evidence on the trial cannot be sustained, since whatever is material to the decision of the Municipal Court, and which that court is required to take judicial notice of, should he presented to the reviewing court.
    2. Pleading, § 1*—what term “practice” includes. The term “practice” as used in section 34 of article IV of the Constitution of 1870, J. & A., p. 190, with reference to Municipal Courts, is broad enough to include pleadings.
    3. Municipal court of Chicago, § 5*—what rules may he made. Section 20 of the Municipal Court Act, J. & A. j[ 3332, authorizes the Municipal Court to make rules which abandon or change the system and forms of pleading in use in courts of record.
    4. Insurance, § 568*—when statement of claim may he treated as declaration. A statement of claim filed in the Municipal Court, setting forth insurance policies sued on, with averment stating that the defendant assumed the risks, the death of the assured, service of proof of death, performance of the conditions of the policies and failure of the defendant to pay the money due, states a complete cause of action and may be treated as a common law declaration; wherefore a contention that the plaintiff failed to file a declaration as required by section 28 of the Municipal Court Act, J. & A. fl 3340, cannot be sustained.
    5. Insurance, § 705*—what is essential to render contract of reinsurance effective. Where an insurance company accepted the transfer to it of policies and securities of another company and thereby reinsured all the then living policy holders of such other company, held that neither such contract of reinsurance nor the statutes required any express acceptance of the reinsurance contract by such policy holders; and if any was contemplated it was such acceptance as would be implied from the failure of a policy holder to exercise his right to be transferred to some other insurance company.
    6. Insurance, f 347*—what defenses are precluded hy incontestable clause. Where a clause in a certain insurance policy provides that it “shall be incontestable after one year from its date of issue,” such clause precludes defenses of fraud or misrepresentation, such as a defense that the insured misrepresented the fact that he had been rejected by another insurance company.
    7. Pleading, § 153

      —what constitutes conclusion. General statements of an affidavit of merits filed by an insurance company that the policies sued on were not guarantied or reinsured by such company, that they were of no binding force and that nothing was due the plaintiff, held mere conclusions.
    8. Municipal court ot Chicago, § 13*—when affidavit of merits may he stricken. An affidavit of merits which does not set up a good defense is properly stricken.
    9. Damages, § 191*—when court may assess. In an action on insurance policies where the damages rest purely in computation and no evidence is required, the amount being undisputed, it is not reversible error for the court to assess the damages, even though a jury is demanded in apt time.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gbmmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 14, 1913.
    Rehearing denied October 28, 1913.
    Charles A. Atkinson and Joseph P. Mahoney, for appellant.
    Moses, Rosenthal & Kennedy, for appellee; Henry H. Kennedy and Walter Bachrach, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Voís. XI to XTV, same topic and section number#

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

Appellee brought two actions against appellant on March 3, 1911, in the Municipal Court of Chicago. Each action was brought on a policy of life insurance for $5,000, and statements of claim were filed in each case on the same day. The statements of claim were the same in both suits with the exception of the numbers of the policies declared on. Subsequently, by leave of court, an amended statement of claim in each case was filed, and the causes were consolidated by order of court and thereafter formed but one case.

The defendant insurance company, appellant here, filed an amended affidavit of merits on June 6, 1911. This affidavit was stricken from the files on motion and an order of default was entered, and the court assessed the plaintiff’s damages at $10,133.33, and entered judgment for that amount in favor of the plaintiff and against the defendant.

The' amended statement of claim in each case is stated in substance later in this opinion. It is alleged that it was provided in said policy that it should be indisputable after one year from date of issue provided the premiums were duly paid as provided in the policy, and provided if the age of the assured had been misstated, the amount payable thereunder would be such as the premiums paid would have purchased at the correct age. To the amended statement of claim in each case the defendant filed an amended affidavit of merits, which is sworn to by T. W. Appleby, who states that he is the secretary of the defendant, and that he verily believes that the defendant has a good defense to this suit upon the merits as to the whole of plaintiff’s demand; that the nature of the .defense to the suit is that the two policies of insurance mentioned and described in plaintiff’s amended statement of claim, issued to said Louis N. Weil by the Inter-State Life Insurance Company, were procured by the fraud, misrepresentations and deceit of said .Louis 1ST. Weil; that in order to procure said insurance said Louis 1ST. Weil executed the usual form of application, partly written and partly printed, as required by the Inter-State, which application consisted of parts 1 and 2, and said part 1 contained the following declaration and agreement of said Louis N. Weil, to-wit:

“I hereby declare on behalf of myself and any person who shall have any interest in any policy issued under this application that all statements contained in Part 1 and Part 2 of this application by whomsoever they be written, are full, true and complete, and with the stipulated premiums shall be the sole consideration of the contract with the Company if any policy or policies be issued, reinstated or renewed thereon, and that if any concealment, or fraudulent or untrue statement be made, said assurance shall be null and void, and all payments made or accepted on account thereof shall be forfeited to the Company except as provided in the policy.”

That in part 1 of the application" said Louis N. Weil made certain statements and representations among which was the statement or representation that he had never been rejected by any life insurance company, meaning thereby that no life insurance company had at any previous time refused to insure his life; that said representation and statement was false and untrue and that said Louis N. Weil then and there well knew it to be false and untrue and then and there well knew the fact to be that he had prior to said day been rejected by at least two other life insurance companies, and that the said Louis N. Weil concealed from said Inter-State the fact that he had been rejected by two other life insurance companies, but that, nevertheless, said Louis N. Weil, made said false and untrue representation and statement with the intent that said InterState should be deceived and misled thereby and act thereon and he then and there well knew if he stated in said application that true and correct facts in the premises said Inter-State would also reject his application and refuse to insure his life; that defendant had no knowledge of the above fraud; that neither said Inter-State nor defendant became aware of the same until a long time subsequent to the day upon which said defendant and said Inter-State Life Insurance Company entered into said contract of reinsurance whereby defendant reinsured such policies of said Inter-State as had been lawfully issued and were in force, and which reinsurance would be accepted by the insured and no others; that said Louis N. Weil well knew of the execution and approval as aforesaid of said contract of reinsurance for a period of more than eight months prior to his death; and that during that time he gave to defendant no notice of his election or intention to accept said reinsurance, nor did he pay to defendant any sum of money as premium upon said policies or either of them, nor did he at any time or in any way whatsoever communicate with said defendant in reference to said policies or either of them or the alleged insurance, nor did he do any act or thing whatsoever evidencing his acceptance of or assent to said reinsurance, and he did not assent to or accept the said reinsurance and neither of said policies was in force in defendant at the time of the death of said Louis N. Weil; that neither of said policies sued on in this action was reinsured or guarantied by the said defendant as hy plaintiff alleged in her statement of claim and amendment thereto, and that neither of said policies was or is of binding force upon said defendant; that there is nothing due from said defendant to the plaintiff hy reason of said two policies or either of them.

After the amended affidavit of merits of defendant, appellant, was stricken from the files as above stated, appellant elected to stand upon its amended affidavit of merits.

The only evidence introduced hy appellee on the trial of said cause was the two policies above mentioned and the testimony of one witness as to the amount of interest from March 22, 1911, to the date of the trial, which was June 7, 1911.

A motion is made, which was reserved to the hearing, to strike from the bill of exceptions the copy of the rules of the Municipal Court of Chicago, for the reason that the same were not offered in evidence on the trial, and are not a part of the proceedings had upon the hearing of the cause in the Municipal Court. The sole ground urged hy appellant in support of its motion to strike the rules from the bill of exceptions is that the rules were not offered in evidence on the hearing and are not a part of the proceedings had upon the hearing of the cause in the Municipal Court.

As a part of the bill of exceptions in this case and over the signature of the trial judge appears a pamphlet entitled “Buies of the Municipal Court of Chicago.” Following the rules, appears a certificate of the trial judge as follows:

“I do hereby certify that the foregoing pamphlet hereto attached and hereby made a part of this bill of exceptions contains all the rules of the Municipal Court of Chicago; that said rules were duly adopted in accordance with Section 20 of an act entitled ‘An act in relation to the Municipal Court of the City of Chicago, approved May 18,1905, in force July 1,1905, and submitted to the voters of the City of Chicago at the election held November 7, 1905, and adopted, and that the adoption of said rules was accomplished by an order signed by a majority of the judges of the Municipal Court of Chicago and forthwith spread upon the records of the Municipal Court and were printed in pamphlet form at the expense of the City of Chicago ; that the said rules of said Municipal Court of Chicago were in force at the time of the entry of the order and judgment in this court on the 7th day of June, 1911, and at the time all the proceedings in the above cause were had; the foregoing rules of the Municipal Court were not offered in evidence upon the trial of this cause.
Wm. N. G-emmill, Judge.”

Immediately after the foregoing certificate appears the usual certificate to a bill of exceptions signed by the trial judge.

The contention of appellant is that the bill of exceptions can only contain evidence formally introduced at the trial or hearing of the cause. This contention is not sound. In State v. Scott, 59 Neb. 499, the question was directly presented to the court on an application for a writ of mandamus to compel one of the judges of the District Court to sign a bill of exceptions. The matters which it was sought to have incorporated in the bill of exceptions by mandamus were the rules of practice of the District Court, and a recital of events which transpired in the presence of the court, and which it was claimed had a material bearing on the rulings of which the relator complained. The trial judge refused to sign such a hill of exceptions. The court held that to intelligently review an order or judgment of the District Court it was necessary that the Supreme Court should he put into possession of all the facts and circumstances known to the District Court, and which it is claimed did influence or should have influenced its decision, and what transpires in the presence of the court and what is judicially known to the court need not formally be given in evidence. The court further held that whatever the District Court may properly take into account in making a decision should, if practicable, be presented to the reviewing court when the record is brought up for review so that the decision may he judged in the light of the circumstances under which it was made. In support of its holding, the court cites 1 Jones on Evidence, sec. 134; Secrist v. Petty, 109 Ill. 188; 12 Encyc. Pl. & Pr., 1, and several other cases. In State v. Fawcett, 64 Neb. 496, the court announced the same doctrine.

To require that before the rules of a trial court can be embodied in a bill of exceptions such rules should be formally offered in evidence would necessitate the absurd practice of offering in evidence before the court what the court knows judicially, and further that in every case tried in the Municipal Court, where the practice is wholly governed by the rules of that court, the rules should be offered in evidence before they can be embodied in the bill of exceptions. This position, in our opinion, is untenable. The method adopted in this case was held to be proper in Dyniewicz v. Benziger, 99 Ill. App. 572.

The certificate above recited, made by the trial judge, shows that the rules were duly adopted in accordance with section 20 of the Muncipal Court Act. (J. &. A. fl 3332.)

It is suggested on behalf of appellant, in support of its motion to strike the rules from the bill of exceptions that the pamphlet containing the rules of the Municipal Court was not competent or proper evidence of the existence of said rules; that the record of the Municipal Court is the only competent evidence of those facts. We think the contention is irrelevant to the point. The question is what were the rules of court, not whether the pamphlet was evidence of the rules. The certificate of the trial judge to the bill of exceptions, containing the rules, is evidence to this court of the rules. Whatever is material to the decision of the cause in the Municipal Court of Chicago, and by the provisions of the Municipal Court Act that court is required to take judicial notice of, should be set out in the bill of exceptions, stenographic report or statement of facts and questions of law involved, in order that a court of review may have such matters before it and be able to intelligently review an order or judgment of that court.

It is further insisted that section 20 of the Municipal Court Act (J. & A. 3332) does not by its provisions empower the judges of the Municipal Court to make any rule or rules which abandon or change the system and forms of pleading in use in courts of record, or by any rules to adopt another and a different system of pleading for use in cases of the first class in that court.

Section 34 of article IV" of the Constitution of 1870 (J. & A. ft 190) contains the only provision made in the Constitution originally relating to the Municipal Court of Chicago, and the only laws which such provision authorizes the General Assembly to pass with respect to the Municipal Court are those relating to the jurisdiction and practice of that court. In pursuance of this authority the General Assembly has created a Municipal Court and defined its jurisdiction, and under the authority to prescribe the practice in said court it has provided what the forms of pleading should be in first and fourth class cases. If the term “practice,” as used in the Constitution, is not broad enough to include pleadings, then the General Assembly had no power to make any provision in the Municipal Court Act, fixing the forms of pleading for that court, and the provisions of that act, which are intended to simplify pleadings in fourth class cases, would be in violation of the Constitution.

The title of chapter 110, Hurd’s R. S. (J. & A. If 4733), is “An Act in Belation to Practice and Procedure in Courts of Becord. Nothing is contained in the title which makes express reference to pleadings; yet.in section 46 of that act (J. & A. ff 8583) it is provided that the defendant may plead as many matters of fact in several pleas as he may deem necessary for his defense, or may plead the general issue and give notice in writing under the same of special matters intended to be relied on for a defense in the trial, in which notice the special matters so intended to be relied on shall be clearly and explicitly stated, and under which notice, if adjudged by the court to be sufficiently clear and explicit, the defendant shall be permitted to give evidence of the facts therein stated as if the same had been specially pleaded and issue taken thereon. In section 47 of the same act, (J. & A. f[ 8584) it is provided that the defendant in any action brought upon any contract or agreement, either express or implied, for claims or demands against the plaintiff in such action may plead the same, or give notice thereof under the general issue or under the plea of payment, and the same, or such part thereof as the defendant shall prove on trial, shall be set off and allowed against the plaintiff’s demand, and a verdict shall be given for the balance due, etc.

Contained in the same act there are several other sections relating to pleas, the effect of filing the same and the judgments to be rendered on issues made by such pleas. The sections above referred to relate to pleadings and provide what pleas may be filed, and also that a notice in writing may be substituted for a special plea. These sections of the Practice Act, with the exception of slight amendments made in 1907, have been in force for many years and have during all that time been included within the act bearing the same title as the present Practice Act. We infer from this that the General Assembly has heretofore considered the term “practice” broad enough to include pleadings, and that when the former term was used in the Municipal Court Act (J. & A. If If 3313—3385) it was intended to be used in the same sense. If the Practice Act provided that the first pleading should be a declaration, it was likewise proper for the Municipal Court, under its power to make rules of practice, to provide that in first class cases the first pleading should be a statement of claim. In our opinion, the term “practice,” as used in the Constitution with reference to Municipal Courts, is broad enough to include pleadings, and that the General Assembly used the word “practice” in the broader sense.

In People v. Central Pac. R. Co., 83 Cal. 393, the Supreme Court of California, in holding that the term “practice” included “pleadings,” say:

“It is claimed by appellant that this is not in conflict with the third subdivision of said section 25 of article 4, for that it relates to pleading and not to practice. But this is taking too narrow a view of the language of the constitution. It is evident that the words of this inhibitory clause of the constitution are used in their general sense, and in that sense, the words 'practice of courts of justice’ include all 'pleadings,’ although the word 'pleadings’ never includes all ‘practice.’ It is impossible to contemplate the subject of 'practice of the courts of justice’ and eliminate from the mind all thought of ‘pleading.’ Burrill defines ‘practice’, first, as 'the course of procedure in courts,’ and says that 'in a general sense practice includes pleading.’ Bapalje’s & Lawrence’s Law Dictionary gives the following definition of the word 'practice:’ ‘The law of practice or procedure is that which regulates the formal steps in an action or other judicial proceeding. It therefore deals with writs, summonses, pleadings, affidavits, notices, motions, petitions, orders, trials, judgments, appeals, costs and executions. ’ ”

We hold that the Municipal Court is given the power to make rules which abandon or change the system and forms of pleading in use in courts of record.

It is contended on behalf of appellant that the lower court erred in overruling the motion of appellant to dismiss each of the causes of action, now consolidated, because appellee failed and neglected to file a declaration as required by law. In support of this position, section 28 of the Municipal Court Act (J. & A. ft 3340) is cited, which required the plaintiff to file pleadings within three days after commencement of suit. This, it is urged, she did not do, but on the contrary, at the time of commencing suit and filing the praecipe, she filed a paper called “statement of claim,” which, it is contended, is demurrable both generally and specially as a declaration.

Waiving the question whether the so-called interlocutory bill of exceptions, signed and filed in the Municipal Court on April 6> 1911, before the entry of final judgment, may be treated as a part of the record in this case, a question we do not find it necessary to decide, and assuming the motion was made and denied, an examination of the documents filed in the suits at the time they were started discloses that every allegation necessary to a common law declaration is presented, and they were, in our opinion, sufficient on general demurrer if the suits were pending in the Circuit Court.

As above stated, the policies sued on are set forth in the statements of claim, which also contain averments showing that the defendant assumed, guarantied and reinsured the risks; the death of the assured; service of proof of death on the defendant; performance by the assured during his lifetime and by the plaintiff, the beneficiary, thereafter, of all the terms and conditions of the policies; and the failure and refusal of the defendant to pay the money due. The facts averred in the amended statements of claim constitute a complete cause of action, and the averments are in such form that the statements of claim filed may be treated as common law declarations.

It is urged that the findings and judgment of the lower court were erroneous because the amended statements of claim of appellee did not state facts sufficient to constitute a cause of action against appellant because the statements of claim failed to aver that Weil, the assured, accepted the reinsurance contract.

That contract provided that in consideration of the covenants and agreements contained therein, appellant accepted the transfer to it of the policies and securities, and thereby reinsured, as of the time when the contract went into effect, all the then living policy holders of the Inter-State whose policies were then in force, and assumed and guarantied said policies of the living policy holders in accordance with the terms and conditions of their policies respectively. Neither the statute nor the contract of reinsurance required any expense acceptance on the part of Weil, and if any was contemplated it is such an acceptance as would be implied from the failure on his part to elect to be transferred to some other insurance company than the appellant within ten days after the meeting of the policy holders held pursuant to a thirty days’ notice previously given to that effect according to the statute governing reinsurance contracts. Each of the statements of claim filed in this cause shows that the reinsurance contract was submitted to and approved by a two-thirds vote of a meeting of the policy holders of the Inter-State, held on December 31,1909, and that such meeting was duly and regularly called and held in accordance with the statutes of Indiana, and that a printed notice of said meeting, called to consider the reinsurance contract, was mailed to each policy holder of the Inter-State at least thirty days before the date of said meeting. The failure of the assured to exercise his right to be transferred to some other insurance company was tantamount tp his acceptance of the reinsurance contract, if any such acceptance was necessary. The finding and judgment of the lower court is sufficiently supported by the allegations of the amended statements of claim. Shoaf v. Palatine Ins. Co., 127 N. C. 308; Federal Life Ins. Co. v. Risinger, 46 Ind. App. 146; Federal Life Ins. Co. v. Kerr, 173 Ind. 613; Johannes v. Phenix Ins. Co., 66 Wis. 50; Brown v. Mutual Reserve Fund Life Ass’n, 224 Ill. 576.

Error is assigned on the striking from the files appellant’s affidavit of merits because it stated a good defense to the policies sued on.

Each of the policies contained the following clause:

“This policy shall be incontestable after one year from its date of issue for the amount due, provided the premiums are duly paid as provided herein; except that military or naval service in time of war, without a permit from the company, is a risk not assumed raider the contract at any time, but the reserve on this policy will be due and payable in case of death while in such service.”

This clause of the policies under the averments of the statements of claim, which were not denied by the affidavit of merits, precluded appellant from asserting the defense of fraud and misrepresentations set up in the affidavit. Flanigan v. Federal Life Ins. Co., 231 Ill. 399; Wright v. Mutual Benefit Life Ass’n, 118 N. Y. 237. In Massachusetts Benefit Life Ass’n v. Robinson, 104 Ga. 256, after exhaustively discussing the subject, the Court said:

“As the law may prescribe such a limitation in which actions shall be brought by the party to be affected, it is also within the power of the contracting parties to agree among themselves upon a period of time which would amount to a statute of limitations, either greater or less than the period fixed by the law. ’ ’

And to the same effect are Clement v. New York Life Ins. Co., 101 Tenn. 22; Royal Circle v. Achterrath, 204 Ill. 549, and numerous authorities.

There is nothing in the affidavit of merits which denies the execution or the making of the reinsurance contract set out in haec verba in the plaintiff’s statements of claim. The contract set out in the statement of claim contains no provision to the effect that it re-insures only such policy holders who should expressly assent to or accept such reinsurance by appellant. Under the law, the reinsurance must be of all the policies and risks and not merely of such policies the holders of which should assent and accept the reinsurance. Bolles v. Mutual Reserve Fund Life Ass’n, 220 Ill. 400.

Furthermore, the fair inference from the facts set out in the affidavit of merits is that Weil assented to and accepted the contract of reinsurance. It sets out that he knew of the execution and approval of the contract of reinsurance for a period of more than eight months prior to his death, and that during all that time he did not in any way whatsoever communicate with appellant in reference to said policies or either of them, or the insurance.

The general statements in the affidavit that neither of the policies were guarantied or reinsured by appellant, and that they were of no binding force and that there was nothing due appellee from appellant on either of the policies, are mere conclusions. Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276.

The affidavit of merits did not set up a good defense to the policies, and therefore, it was properly stricken.

It is urged on behalf of appellant that the damages should have been assessed by a jury and not by the court, appellant having demanded a jury trial in apt time.

Appellee’s statements of claim averred all the facts necessary to maintain appellee’s cause of action, and when the appellant elected to stand by its affidavit of merits after it had been stricken from the files by order of court, the allegations of appellee’s statements of claim were admitted by the default so that all the facts, of which appellant claims there was no evidence nor proof, were admitted by appellant and no evidence was required to prove them. In Massachusetts Mut. Life Ins. Co. v. Kellogg, 82 Ill. 614, an action was brought in assumpsit upon a life insurance policy and the defendant defaulted. The Court, in holding that there was no necessity of any proof in the case, even for the assessment of damages, says: “Again, in this case, there was no necessity for any proof whatever for the assess-meat of damages. The damages rested purely in computation. The default admitted every allegation of the declaration, in so far as it was traversable. It admitted the execution of the policy, the terms of the policy, the full performance of the conditions by Kellogg, the fact of the death under the age of 45, the time of the death, notice and proof of these facts 90 days before, and hence admitted that $1,000 was due and unpaid at the time of the bringing of the suit, and all that remained was to compute interest from the bringing of the suit to the assessment of damages. This needed no proof whatever, and so long as the damages do not exceed the amount of the policy and proper interest, the defendant cannot be said to be harmed.”

And in Binz v. Tyler, 79 Ill. 248, an action was brought in assumpsit, to which a demurrer was filed and overruled, and the defendant elected to abide by the demurrer; the Court says: “The demurrer admitted every material allegation in the declaration, and nothing was left to be inquired into but the amount of damages sustained by the plaintiff.” Other Illinois authorities might be cited to the same effect.

This question was before us in Second Nat. Bank of Saginaw v. Claney, 178 Ill. App. 427, and the judgment was affirmed in the Supreme Court by a denial of the application for a writ of certiorari. As said in the above case, there was no dispute as to the amount of the damages to be assessed, and if the jury had been called, the court would have instructed them to find a verdict for the exact amount of the judgment. It would be an idle form to impanel a jury and instruct them to find the amount of damages, which rested purely in computation, and as to which no evidence was required. It was hot reversible error for the court to assess the damages.

Finding no reversible error in the record the judgment is affirmed.

'Affirmed.


text:
    Joseph Stuchly, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,028.
    (Not to be reported in full.)
    Abstract, of the Decision.
    1. Street railroads, §62

      —what care is required in operation. A street car company which permits its cars to become so overcrowded that passengers are required to ride on the steps is guilty of negligence.
    2. Carriers, § 287*—how passengers are to be carried. A street car company which accepts a person as passenger while he is standing on the step of the car invites such person to ride in that place, and there is an implied assurance that it is a safe and suitable place to occupy.
    3. Carriers, § 284*—when warning must be given. Where a fence is erected in close proximity to street car tracks, so as to endanger passengers riding on street cars, warning must be given, and the fact that such fence was not erected by the company is immaterial when it had notice that the fence was there.
    Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by Joseph Stuchly against Chicago City Railway Company for damages for personal injuries. From a judgment for plaintiff for thirty-five hundred dollars, defendant appeals.
    James G. Condon and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    James C. McShane, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

4. Street bailboabs, § 135 —uyhat are questions of fact. Whether a plaintiff was guilty of contributory negligence in riding on the steps of a street car or in failing to discover a fence which struck him, held questions for the jury.

5. Street bailboabs, § 124*—what evidence of an accident is admissible. Evidence that a street car was crowded when stopped by a wagon, shortly before plaintiff was injured, held proper as showing the condition of the car at the time of the accident and as bearing upon the question of the necessity of warning passengers, who were riding on the steps of such car, when it approached a, fence.

6. Negligence, § 214*—when instruction may refer to pleadings. The giving of an instruction referring to the negligence of a defendant “as charged in the declaration” instead of embodying the facts constituting such negligence does not constitute reversible error.

7. Street bailboabs, § 62*—when person is passenger. A person does not cease to be a passenger or lose his rights as a passenger by leaving a street car at the motorman’s request to help in removing a wagon so that the car may proceed.

8. Damages, § 239*—^when verdict will not be disturbed. Award of thirty-five hundred dollars to person knocked from step of street car by fence adjoining tracks, held not grossly excessive or the result of passion and prejudice.


text:
    Benjamin Schwartz, Plaintiff in Error, v. Anheuser-Busch Brewing Association, Defendant in Error.
    Gen. No. 18,466.
    (Not to foe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Actions by Benjamin Schwartz against AnheuserBusch Brewing Association, a corporation, to recover rent for three months. The actions were consolidated in the trial court. From a judgment for plaintiff for $10.85, plaintiff brings error.

      Abstract of the Decision.
    1. Tbial, § 299

      —when proposition of law may he refused. Propositions of law not involved in the case are properly refused.
    2. Landlobd and tenant, § 441

      —when evidence insufficient to establish renewal of lease. In an action fpr rent, a finding of fact that defendant remained in possession of the premises after the expiration of the lease and a finding of fact that a check received hy plaintiff for rent was not sent hy defendant by mistake, held properly refused as not sustained by the evidence.
    Sabath, Levinson & Stafford, for plaintiff in error.
    Goldizer, Rodgers & Froelich, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.


text:
    O. J. Astry, Defendant in Error, v. Fox River Distilling Company, Plaintiff in Error.
    Gen. No. 18,488.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by O. J. Astry against Fox Eiver Distilling Company, a corporation to recover on a promissory note made by defendant and indorsed to plaintiff. From judgment in favor of plaintiff for $517.85, defendant brings error.

      Abstract of the Decision.
    1. Bills and notes, § 373

      —prima facie case. Introduction of note makes a prima facie case.
    2. Bills and notes, § 391*—presumption in favor of holder. Presumed that holder acquired the note for a valuable consideration before maturity asd without notice.
    3. Bills and notes, § 92*—presumption as to memoranda on hack of note. A memorandum on the back of note will be presumed to have been made when the note was executed and to be no part of the body of the note, in the absence of any testimony on that subject.
    4. Bills and notes, § 92*—memorandum on hack of note construed. In suit on a note payable in nine months after date, a memorandum on the back thereof by the maker, “will pay as soon as our claim of $717.13 is satisfactorily settled,” when considered as having been made when note was executed, will be construed to mean that note is payable nine months after date at all events and to be paid before if the claim is settled before that time.
    5. Bills and notes, § 367*—necessity of proving execution or assignment. Holder of note not required to prove the maker’s or payee’s signatures in the absence of a verified plea denying execution or assignment.
    6. Bills and notes, § 363*—when execution and assignment are admitted. In the absence of any denial of the execution of the note or of the signature of the payee, the execution and the assignment are admitted.
    Isadore S. Blumenthal, for plaintiff in error; Maurice Alschuler, of counsel.
    Baker & Holder, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.


text:
    Louis Rosenfeld, Defendant in Error, v. Nathan Pomerantz and Harry Pomerantz, Plaintiffs in Error.
    Gen. No. 18,533.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Municipal court of Chicago, § 26

      —sufficiency of statement of facts for review. A statement of facts signed by the trial judge which consists of a statement of the evidence is not such a statement of facts as is contemplated by the Municipal Court Act.
    2. Trial, § 295*—when propositions of Jaw must be submitted. Propositions of law and findings of facts submitted to the court after entry of judgment and after a writ of error has been sued out may be refused by the trial court.
    Error to the Municipal Court of Chicago; the Hon. Feed C. Hill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 14, 1913.
    Statement of the Case.
    Action by Louis Rosenfeld against Nathan Pomerantz and Harry Pomerantz to recover wages earned by plaintiff while in the employ of defendants. From a judgment in favor of plaintiff for one hundred and fifty-three dollars, defendants bring error.
    Shaeffer & Kompel, for plaintiffs in error.
    Israel Cowen, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.


text:
    Edward Smith by George W. Smith, Appellee, v. Board of Education of Oak Park and River Forest Township High School, Appellant.
    Gen. No. 18,997.
    1. Schools, § 180

      —when courts will interfere in government of schools. Under section 115 of chapter 122 of Hurd’s R. S. 1911, J. & A. ff 10136, authorizing boards of education to expel pupils guilty of gross disobedience or misconduct, the power to determine what constitutes such disobedience or misconduct rests with such boards, and a court of law is not authorized to review the decision of such board except where fraud, corruption or gross injustice is palpably shown.
    2. Schools, § 179*—when pupil may he expelled. Where a pupil was expelled because of membership in a fraternal society, in violation of rules of a board of education, held that the evidence showed that a hearing was had by such board and that the board did not exercise its power oppressively or with gross injustice.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed October 14, 1913.
    Angus Roy Shannon and Hugh S. Pettis, for appellant.
    James Maher, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

By this appeal the Board of Education of Oak Park and River Forest Township High School brings before this court for review a judgment in mandamus rendered in a proceeding instituted by appellee, Edward Smith, an expelled pupil of the high school in Oak Park. The judgment declared void the action of expulsion and ordered the return of the petitioner to the school.

The petition for mandamus was filed May 6, 1912, and sets forth that the petitioner, a hoy of sixteen years jxLage, is a resident of Oak Park, Illinois, and under the laws of the State of Illinois is entitled to attend as a pupil, for the purpose of receiving an education, the Oak Park and Eiver Forest Township High School. The petition further states that the father of the petitioner is a resident and taxpayer of Oak Park, and that until March 22, 1912, the petitioner was a pupil in the high school attending the classes therein and at all times obeyed and complied with the laws of the State of Illinois and the rules and regulations of said school; that in August, 1908, the defendant, appellant, adopted a certain rule, part of which was as follows:

“Definition.—Any organization composed wholly or in part of high school students which seeks to perpetuate itself by taking in additional members on the basis of the personal preference of its membership, rather than upon the free choice of any student in the school who is qualified to fulfill the special aims of the organization, is a high school fraternity or sorority as contemplated by the following rules:
“No pupil of this school shall be or remain a member of, or shall join or promise to join, become pledged to become a member of, nor solicit any other.person to join, promise to join or be pledg'ed to or become a member of any said high school fraternity or sorority, or whose activities in the judgment of this board work back and have an effect upon the discipline or scholarship of said school.
“The penalty for any violation of this rule or for any false statement or misrepresentation regarding membership in any such society or regarding any violation of these rules on the part of any pupil of the school, shall be suspension and expulsion from the school and diploma may be permanently withheld from such pupil.
“It shall be the duty of the principal, upon satisfactory evidence of a violation of any part of this rule, to suspend the pupil guilty of such violation, and forthwith report the facts and circumstances of such violation and suspension to this board for its action.”

The petitioner then alleges that during the month of March, 1912, while he was attending said high school as a pupil and obeying all the rules and regulations of said school and of the said Board of Education with reference to said school, he, with certain other pupils of the said school (naming them), was charged with a violation of the rules and regulations of said school and of the said Board of Education, in that the petitioner and the said other pupils were members of a certain secret fraternal society known as the “Phi Lambda Epsilon Fraternity,” and that on March 23, 1912, there was received at the home of petitioner, by his father, a certain letter, notifying the petitioner’s father that the petitioner had been expelled from the school because of his violation of the rules and regulations of the said school and of the Board regarding secret societies; that, since March 23, 1912, the petitioner has been refused admittance to the school and the right to prosecute his studies therein; that petitioner has made demand in writing upon the Board of Education, the defendant, to give him a hearing before said Board to the end that he might prove that he' was not a member of said fraternity or any other secret society, and that he had not violated any of the rules and regulation of said high school, or of the said Board of Education; but the said Board of Education has refused to grant the petitioner a hearing or an opportunity to submit proof as to his innocence with reference to the charges upon which he was expelled from the high school; and that the said Board of Education refused and still does refuse to permit the petitioner to attend the high school or continue his studies therein.

The petition prays for a writ of mandamus, directed to the Board of Education .of Oak Park and River Forest Township High School, commanding the Board to forthwith rescind and vacate the order of expulsion heretofore entered by it against the petitioner and to permit the petitioner to attend said high school and prosecute his studies therein.

To the petition appellant filed an answer admitting that the petitioner was a resident of Oak Park, Illinois, and that until March 22,1912, the petitioner was a pupil in the high school and attending the classes therein, hut denies that he at all times obeyed and complied with the laws of the State of Illinois and with the rules and regulations of said high school, and denies that the action taken by it in expelling the petitioner was done under any rule of the Board passed in August, 1908, and denies that the rule which the Board passed has been in force or effect since July 24, 1911. The answer admits that the relator, Edward Smith, was expelled in March, 1912, from the high school with certain other pupils, but denies that at the time of the expulsion the petitioner was or had been obeying or complying with the rules and regulations of the school and of the Board of Education. The answer admits the sending of the letter to George W. Smith by Mr. Hanna, principal of the school, as set forth in the petition, and admits that since March 23, 1912, the petitioner has been refused admission to the high school as a pupil, and also admits the demand in writing upon it in behalf of the petitioner for a rehearing before the Board of Education on the charges upon which the expulsion was based; but denies, that it refused to grant the petitioner the hearing or an opportunity to submit proofs in reference to the charge. It admits a written demand by the relator upon its president to vacate and rescind the resolution or order whereby relator was expelled and excluded from attending the high school, and that a written demand upon the president was made to order and direct the principal of the high school to permit the relator to attend the high school and to rescind all orders and resolutions whereby relator was prevented from attending school, and that the president refused to accede to the demands of the relator for rescission and for reinstatement in the school.

The answer denies that the petitioner was not and is not guilty of the charges upon which the resolution passed by the Board of Education and expelling him was predicated; denies that petitioner, by reason of any act of defendant or the principal of the school, has been deprived of any rights guarantied him by the State of Illinois.

The answer than proceeds at great length to give certain reasons which induced the defendant Board of Education to adopt the rule set out in the petition, but we do not deem these averments in the answer as material for the reason that the reasonableness of the rule is conceded and not called in question either in the petition or in argument.

The Board of Education of the high school districts of the class of defendant has all the powers and is charged with the duties of school directors. Chapter 122, Hurd’s B. S. 1911, sec. 91, (J. & A. 10112). Among the duties devolving upon the Board of Education under the statute is the duty to adopt and enforce all necessary rules and regulations for the management and government of the high school under their charge. By section 114, clause 5, chap. 122 of the statutes (J. & A. If 10135), they are given the power to adopt and enforce all necessary rules -and regulations for the management and government of schools, and by section 115 (J. & A. Tfl0136) they are clothed with the power to suspend or expel pupils guilty of gross disobedience or misconduct.

In order to carry out the powers and duties of school directors or Board of Education of high school districts, no form of trial or hearing is prescribed. The powers are given, the duties are laid down and the Board of Education is authorized in a reasonable and parliamentary way to investigate charges of disobedience or misconduct, and to suspend or expel any whom they may find guilty of any violation of any of their reasonable and valid rules. As above stated, the reasonableness and validity of the rule in question is not attacked either in the petition or in argument. The whole case sought to be proved by the petitioner by the evidence is that he was not a member of the fraternity and, therefore, did not violate the rule. Upon that question, it is clearly shown that the Board of Education received, heard and considered evidence, and found the petitioner guilty of a violation of the rule and expelled him from the school for such violation. The power to determine what constitutes disobedience or misconduct lies with the Board of Education, and under no circumstances, except where fraud, corruption, oppression or gross injustice is palpably shown, is a court of law authorized to review the decision of the Board of Education, and to substitute its judgment for that of the board. McCormick v. Burt, 95 Ill. 263; School Trustees v. School Directors, Dist. No. 2, 190 Ill. 390; Wilson v. Board of Education, 137 Ill. App. 187, affirmed in 233 Ill. 464.

The petition does not charge that there was any fraud or corruption in the action of the defendant Board. By a liberal construction it may be said to charge oppression or gross injustice to the petitioner by the Board in expelling him from the high school. So construing the petition, there were before the trial court two questions of fact upon which it was authorized to hear evidence and pass judgment. The first question was whether the Board of Education heard any evidence, at the time or prior to the action complained of, on the question of the violation of its rules by the petitioner. The second question was as to whether or not the defendant’s action was oppressive or worked gross injustice to the petitioner.

On the first question it clearly appears from the evidence offered by the parties that the Board of Education heard and considered evidence. On this question there is no controversy between the parties. The evidence heard and considered by the Board, in our opinion, justified its conclusion and action.

We find no evidence in the record that shows fraud, corruption, oppression or gross injustice on the part of the defendant Board. There is nothing in the record to show that the Board exercised its power oppressively or with gross injustice.

The power of the Board to exercise its honest and reasonable discretion in such cases without the interference of the courts is well settled (School Directors v. School Trustees, 66 Ill. 247; Wilson v. Board of Education, 233 Ill. 464; Kelly v. City of Chicago, 62 Ill. 279; Dental Examiners v. People, 123 Ill. 227); and the proof in the record does not show or tend to show legal grounds for the interference of a court of law with the decision of the Board. The judgment is therefore erroneous.

The judgment of the Circuit Court is reversed and the cause is remanded with directions to dismiss the petition.

Reversed and remanded with directions.


author: Mr. Justice Barnes

text:
    Eugene Brenner, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,113.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 14, 1913.
    Rehearing denied October 28, 1913.
    Statement of the Case.
    Action by Eugene Brenner against City of "Chicago for damages for personal injuries. . From a judgment for plaintiff for ten thousand dollars, defendant appeals.

      Abstract of the Decision.
    1. Municipal corporation, § 1051

      —what constitutes contributory negligence. It is not negligence per se for the driver of a team to use a street because he has notice of its defective condition.
    2. Municipal corporations, § 1107*—when contributory negligence is question for jury. Where a street is full of holes at a point where a party has occasion to use it, and he drives into a hole while looking for the safest place and at the same time exercising care to avoid another trouble incident to street travel, the question of whether such party exercises due care for his own safety is one of fact upon which the findings of the jury will not be disturbed.
    3. Municipal corporations, § 1225*—when notice of injury is sufficient. A notice to a city stating that a person was injured “on or about the third day of December,. 1908,” complies with the statute, where the date mentioned is correct and the city is not misled, the wqrds “or about” not changing the fact that the notice designated the exact date.
    4. Municipal corporations, § 1225*—when notice to city of place of injury is sufficient. A notice to a city of an injury which designates the street^ on which and the two nearest intersecting streets between which the accident occurred, and which describes the nature of the defect causing the injury, meets the purpose of the statute by enabling the city to locate the place of injury.
    5. Municipal corporations, § 1104*—when instruction is unobjectionable. Instruction as to constructive notice of unsafe condition of street, held not objectionable as assuming controverted facts to be proved.
    6. Damages, § 110*—when excessive. Verdict for ten thousand dollars for permanent, severe injuries, attended by pains, as where left leg was fractured and shortened and other injuries sustained, held not excessive.
    William H. Sexton, N. L. Piotrowski, Edward J. Brundage and Clyde L. Day, for appellant; David R. Levy, Morton G. Smith and Edward C. Fitch, of counsel.
    Richard J. Finn, for appellee.

      See Illinois Notes Digest, Yois, XI to XIV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

7. Evidence, § 433*—what hypothetical questions are proper. Hypothetical questions as to matters of expert knowledge assuming facts with reference to the injuries and health of the plaintiff and concluding with the question as to whether the physical conditions described were caused by the accident, held not improper where it appeared that the defense was directed mainly to the condition of the street where the accident occurred and the claim of contributory negligence, although some effort was made to show that some of the conditions referred to in the questions might have resulted from previous illnesses and others from drinking habits..

8. Municipal corporations, § 973*—what is street. Where a thoroughfare was paved and used for traffic and street cars and was patrolled by city officers, its existence as a street was prima facie shown.