text:
    J. B. Kilroy, Appellee, v. Margaret T. McGovern and Michael H. McGovern, Appellants.
    Gen. No. 21,861.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Action by J. B. Kilroy, plaintiff, against Margaret T. McGovern and Michael H. McGovern, defendants, in the Circuit Court of Cook county. From a judgment for plaintiff, defendants appeal.
    Timothy J. Fell, for appellants; Hermann P. Haase, of counsel.
    O’Donnell & Toolen, for appellee.
    Abstract of the Decision.
    1. Judgment, § 298

      —when order nunc pro tunc vacating judgment after term is void. An order nunc pro tunc vacating and setting aside a judgment entered at a previous term, based entirely on the recollections of the judge as to what occurred on a day in the previous term, and without any note or memorial minute made by the judge at such time, is without jurisdiction and void.
    2. Appeal and error, § 962*—when defect in record may not he supplied hy reference to hill of exceptions. Although where the recitals in the common-law record and the bill of exceptions are at variance the latter prevails, yet the rule cannot be extended so as to supply an order not appearing in the record, as where the record fails to show an order nunc pro tunc vacating a judgment rendered at a previous term, and where the bill of exceptions shows that the judge entered such an order, but on his own recollections as to what took place at the previous term, and without any minute or memorial made by him authorizing the entry of such an order after the expiration of the term.

      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 McDonald

delivered the opinion of the court.

3. Appeal and ebbob, § 1793 —when judgment in action against joint defendants reversed. In an action against joint defendants, it is incumbent on plaintiff to establish the joint liability of all defendants, and where the record shows that as to one defendant plaintiff failed to make such proof, a judgment for plaintiff will be reversed.


source: Caselaw Access Project

author: Mr. Justice McDomald

license: Public Domain

text:
    Sadie Labowitch, Personally and as Heir at Law, Appellee, v. David Labowitch et al., on appeal of David and Ida Labowitch, Appellants.
    Gen. No. 22,654.
    (Not to be reported in full.)
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Jesse Baldwin, Judge, presiding. Heard- in the Branch Appellate Court.
    Reversed.
    Opinion filed November 14, 1917.
    Statement of the Case.
    Bill in chancery by Sadie Labowitch, personally and as heir at law of her deceased husband, Louis Labowitch, and as executrix under his last will and testament, complainant, against David Labowitch, Ida Labowitch, Leopold Labowitch, Benjamin Labowitch, Bettie G-reenfeld, Lottie Badner, Ignatz Badner, Kate. Grossman, Joseph Grossman, Esther Hambourger, Jacob I. Hambourger, and unknown heirs at law of Louis Labowitch, deceased, and unknown owners for an accounting. From an interlocutory decree appointing a receiver of a business belonging to complainant’s testator, and restraining defendant David Labowitch and others from interfering with such receiver in the discharge of his duties, defendants David Labowitch and Ida Labowitch appeal.
    The bill, which was filed by complainant both as executrix and in her own right as widow and heir at law alleged inter alia: That deceased had for many years prior to his death owned and conducted the business of selling clothing and merchandise on instalments, under the name of the “Union Credit Clothing House,” in Chicago; that during 1911 Louis Labowitch became seriously ill, and in May, 1912, was compelled to enter a health resort, and from that time until his death—in October, 1915—was a patient in sanitariums, and was unable to attend to his business during his illness, and that his business was conducted and his property managed by his brother, defendant David Labowitch, and that complainant knew nothing of what testator’s estate consisted, except as informed by defendant David Labowitch; that defendant David Labowitch had been for several years thoroughly familiar with the said business and properties, and from prior to May, 1912, to the filing of the bill, had been the sole manager thereof; that during the illness of testator, defendant David Labowitch conducted the business as a trusted agent, and since the death of testator continued to conduct it, and had wrongfully excluded complainant from participation therein, and bad wrongfully failed and refused to yield possession and control to complainant, wrongfully claiming that all, or practically all, property of testator was owned by a copartnership, composed of testator and David Labowitch; that the management of the business and properties involved extensive and complicated accounts, that complainant had no knowledge and was unable to obtain full information thereof that defendant David Labowitch had such information, and that full, true and complete disclosure of such information was necessary to the maintenance of the bill, and the ascertainment of the rights of the parties.
    Then followed a recital of the alleged property of testator at the time of his death, and a prayer for an accounting and the appointment of a receiver.
    Rudolph D. Huszagh, for appellants.
    Tolmah, Redeteld & Sextoh, for appellee.
    Abstract of the Decision.
    1. Éeceivers, § 3

      —When appointment of proper. On a bill by the wife and executrix of the owner of an extensive business for an accounting by the person in charge of the business during the illness of deceased, evidence held to sustain an interlocutory order appointing a receiver and restraining the principal defendant and others from interfering with such receiver in the discharge of his duties.
    2. Receivers, § 11*—what order appointing should state. On the appointment of a receiver, complainant must be required to give bond, as provided by the Act of 1903, sec. 1 (J. & A. If 2743), unless for good and sufficient cause shown the furnishing of the bond is dispensed with, in which case the order appointing the receiver should so state.

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

   Mr. Justice McDomald

delivered the opinion of the court.


author: Mr. Justice MoGcorty

text:
    The People of the State of Illinois, Defendant in Error, v. Illinois Life Insurance Company and William T. Pursell, Plaintiffs in Error.
    Gen. No. 21,456.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Coubtney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Action by the People of the State of Illinois, plaintiff, against" the Illinois Life Insurance Company, a corporation, and William T. Pursell, defendants, in the Municipal Court of Chicago, to recover penalties provided by the Act of 1891, sec. 3 (J. & A. ft 6493). To reverse a judgment for the People for seven hundred dollars and costs, defendants prosecute a writ of error.
    Henry W. Price and Hugh T. Martin, for plaintiffs in error.
    Maclay Hoyne, for defendant in error; Albert F. Mecklenburger, of counsel.
    Abstract of the Decision.
    1. State’s Attorney, § 3

      —when appointment by letter of State’s Attorney insufficient. A letter from the State’s Attorney authorizing an attorney to act as special attorney in a particular ease is without effect in the absence of an order of the court to that effect, since such an appointment is a judicial act, and a court speaks only by its record.

      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 MoGcorty

delivered the opinion of the court.

2. Insurance, § 17 —who may sue for penalty. The Act of 1891, sec. 3 (J. & A. If 6493), relating to penalties for violation of the prohibition of the act against discrimination between insurance companies as to rates, etc., providing that such penalty shall “be sued for and recovered in the name of the People of the State of Illinois, by the State’s Attorney,” is explicit in its terms and excludes every other method of procedure to recover such penalty.


author: Mr. Justice McGuorty

text:
    N. C. Meling, Defendant in Error, v. Mary J. Lamb, Plaintiff in Error.
    Gen. No. 21,477.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Ebt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed November 14, 1916.
    Rehearing denied November 24, 1916.
    Statement of the Case.
    Action by N. C. Meling, plaintiff, against Mary J. Lamb, defendant, in the Municipal Court of Chicago, to recover for a surgical operation performed by plaintiff, a surgeon, on the minor son of defendant, a divorced woman. To reverse a judgment for plaintiff for one hundred dollars, defendant prosecutes a writ of error.
    It appeared that the decree of divorce between defendant and her husband gave the custody of the son to the husband, and that at the time of the operation the son did not live with defendant, and was not subject to her control.
    Leon A. Berezniak, for plaintiff in error.
    Cameron & Matson, for defendant in error.

      Abstract of the Decision.
    Parent and child, § 14

      —when divorced mother not liable for surgical operation on child. Where a decree of divorce awards the custody of a minor son to the father, the divorced wife is not liable for the expense of a surgical operation performed on the son, in the absence of an express promise, or of facts or circumstances from which an implied promise can he inferred.

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

   Mr. Justice McGuorty

delivered the opinion of the court.


author: Mr. Justice McG-oorty

text:
    Alex Friend, trading as Alex Friend & Company, Defendant in Error, v. Henry Melvin Mahin and Ella Louise Mahin, Plaintiffs in Error.
    Gen. No. 21,550.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John C. Work, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed with finding of facts.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Action by Alex Friend, trading as Alex Friend & Company, plaintiff, against Henry Melvin Mahin and Ella Louise Mahin, defendants, in the Municipal Court of Chicago, to recover a broker’s commission. To reverse a judgment for plaintiff for two hundred and twenty dollars and costs, defendants prosecute this writ of error.
    Plaintiff procured one Tibbies to contract with de-’ fendants for the purchase of defendants’ real estate, the contract agreeing to furnish a complete merchantable abstract of title, and to convey a good and mercharitable title. Finding that the building on the land encroached on adjoining land, Tibbies refused to perform, and the contract was canceled by mutual consent. There was evidence that the encroachment had existed continuously for twenty-four years. There was also evidence that plaintiff, as trustee, had sold the property to defendants, and that a survey was made by plaintiff, showing the encroachment, of which he informed defendants.
    Bentley, Burling & Swan, for plaintiffs in error; Willard Brooks, of counsel.
    Harry C. Levinson, for defendant in error; Leo W. Hoffman, of counsel.
    Abstract of the Decision.
    1. Appeal and error, § 1772

      —whan joint judgment must be reversed. If a joint judgment is erroneous as to one of the defendants it must be reversed as to the other.
    2. Appeal and error, § 1041*—how assignments of error to be considered where judgment is joint. On writ of error to reverse a joint judgment, the assignments of error are to be considered as joint and several, or joint or several, according to the nature of the error assigned, and as affecting the respective plaintiffs in error.
    3. Brokers, § 88*—when evidence shows broker chargeable with knowledge of encroachment. In an action to recover a broker’s commission, where the purchaser secured for defendant by plaintiff declined to carry out the contract because he learned that the building on the land sold encroached on adjoining land, evidence held to sustain the finding of the court trying the case without a jury that plaintiff was chargeable with knowledge of the encroachment before he procured such purchaser.
    4. Vendor and purchaser, § 138*—when purchaser not bound to accept title. Where a contract to sell land covenants to convey a good and merchantable title thereto, the purchaser is not hound to perform where the title to part of the land rests merely on adverse possession.

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

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

   Mr. Justice McG-oorty

delivered the opinion of the court.

5. Bbokbbs, § 46 —when "broker not entitled to recover. A broker held not entitled to recover a commission where he did not present to the owner a purchaser who entered into a valid, binding and enforceable contract.


author: Mr! Justice MoGoorty

text:
    Anton J. Cermak, Bailiff, for use of Staver Carriage Company, Plaintiff in Error, v. American Surety Company of New York and David Jetzinger, Defendants in Error.
    Gen. No. 21,626.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Chables N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed November 14, 1916.
    Rehearing denied November 24, 1916.
    Statement of the Case.
    Action by Anton J. Cermak, bailiff of the Municipal Court of Chicago, for the use of Staver Carriage Company, a corporation, plaintiff, against the American Suretv Comuany of New York and David Jet-zinger, defendants, in the Municipal Court of Chicago. To reverse a judgment for defendants for costs, plaintiff prosecutes this writ of error.
    Bulkley, More & Tallmadge, for plaintiff in error.
    John M. Zane, for defendants in error.

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

   Mr! Justice MoGoorty

delivered the opinion of the court.

Abstract of the Decision.

Appeal and ebbob, § 1014 —what essential to review of rulings on propositions of law. In order to enable the Appellate Court to review alleged errors of the trial court in holding propositions of law in a case tried without a jury, it is necessary not only that such propositions shall have been submitted to the trial court, but also that the rulings of the court thereon shall be preserved in the record.


author: Mr. Justice McGoorty Mr. Justice McGoorty

text:
    A. J. Stone and S. O. Stone, copartners, trading as A. J. Stone & Company, Defendants in Error, v. Gustavus A. Kreis, Plaintiff in Error.
    Gen. No. 21,648.
    1. Pbincipal and agent, § 167*—when, agent not personally liable. Where an agent discloses the fact of his agency, or where the other party knows at the time that he is acting as such agent, the latter will not be liable, unless he binds himself to become responsible.
    2. Bbokebs, § 7*—what evidence tends to show real estate broker bound as principal. In an action by real estate brokers to recover commissions, where the defense was that defendant was acting as agent, evidence held to tend to show that defendant was bound as principal.
    3. Bbokebs, § 38*—what is duty of real estate broker under contract for commissions. Where real estate brokers make a contract with an owner of real estate to sell his property on commission, the duty of such brokers is to find for the owner a purchaser ready, willing and able to purchase the property on terms acceptable to the owner.
    4. Bbokebs, § 95*—when refusal of instruction as to good faith of owner in making sale is erroneous. In an action by real estate brokers to recover commissions, where it appeared that after notifying plaintiffs of his discontinuance of negotiations with their customer, defendant sold the property to another person who conveyed it to such customer, held that it was reversible error to refuse an instruction requested by defendant as to his good faith apart from that of the customer, while giving an instruction requested by plaintiffs as to the good faith of the customer together with that of defendant, since the given instruction was misleading, and since each party had the right to have the jury instructed upon his theory of the case, if such theory had a basis in the evidence on which to rest.
    5. Brokers, § 54

      —when good faith of vendor in abandoning negotiations is controlling. In an action by real estate brokers to recover a commission, where it appeared that after considerable negotiation with plaintiffs’ customer, both such customer and defendant informed plaintiffs that they would not negotiate further in reference to the transaction, but yet defendant later sold the property to another person, who in turn conveyed it to plaintiffs’ customer, the controlling issue of fact presented was that of defendant’s good faith in abandoning the negotiations.
    On Rehearing.
    1. Brokers, § 48*—when good faith of owner in making sale is not material. Where, after ■ discontinuing dealings with a customer procured by brokers, an owner of real estate knowingly deals with such customer or with a third party representing such custoiher, the element of good faith in the transaction is not material as respects the question of the liability of the owner to plaintiffs for commissions, although the sale was at a much lower price than that offered by the customer through plaintiffs as brokers.
    2. Brokers, § 48*—when good faith of owner in making sale is material. Where, after discontinuing dealings with a customer procured by brokers, an owner of real estate sells to such customer at a much lower price than that offered through plaintiffs as brokers, the element of good faith in the defendant is material as respects the liability of defendant to plaintiffs for commissions, where it appears that the negotiations actually resulting in the sale were entered upon through a third party who was the secret representative of such customer, of which defendant was ignorant, and where it also appears that after due inquiry defendant was led to believe that he was dealing with an entirely new party and that he would not be obliged to pay commissions, thus inducing him to sell at the lower price, since in such case, if defendant was acting in good faith, the controlling influences of the sale were not those set in motion by plaintiffs.
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed November 14, 1916.
    Rehearing denied and additional opinion filed November 28, 1916.
    Ela, Grover & March, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendants in error; Walter H. Jacobs and A. Liddon Shepherd, of counsel.

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

   Mr. Justice McGoorty

delivered the opinion of the court.

Defendants in error (plaintiffs below) sued plaintiff in error (defendant below) for the recovery of an alleged commission, resulting in a verdict and judgment for $375 in favor of plaintiffs. Plaintiffs’ suit is upon a contract of employment as real estate brokers.

It is contended that defendant is not liable to plaintiffs because he acted solely as agent for his wife, who had record title to the property in question, and that plaintiffs had notice of that fact, because they sold for Mrs. Kreis (prior to the sale in question) about six feet of the said property, and another piece adjoining .it, to one Tegtmeyer. “Where an agent discloses the fact of his agency, or where the other party knows at the time that he is acting as such agent, the latter will not be liable, unless he binds himself to become responsible.” St. Louis Southwestern Ry. Co. v. White Lumber Co., 169 Ill. App. 482, 483; Yuckman v. Considine, 191 Ill. App. 192.

In the instant case under all the facts and circumstances in evidence, we are of opinion that the evidence tended to show that defendant became bound as principal by the terms of the contract of employment.

Under said contract it became plaintiffs’ duty to secure for defendant a purchaser ready, willing and able to purchase said property on terms acceptable to defendant. Plaintiffs contend that they secured' such a purchaser, in the person of a certain Hock, and that defendant attempted to avoid payment of a com-, mission by selling said real estate to another, named Woodward, who in turn conveyed same to Hock. Defendant, upon the other hand, contends that plaintiffs (a) failed to produce such a purchaser and (b) were not the procuring cause of the sale, and (c) that such sale was made by defendant without knowledge that Woodward actually purchased said property for Hock with money furnished by the latter.

It is shown by the evidence that covering a period of about two years, plaintiffs, under the terms, of their employment, endeavored to induce Hock to purchase said property, and at the end of such period, Hock and defendant informed plaintiffs that they would not negotiate further in reference to same. The controlling issue of fact presented by the pleadings and evidence is the question of defendant’s good faith in abandoning said negotiations.

The court refused defendant’s motion to instruct the jury that if they believed from the evidence that the defendant acted in good faith at the time he sold the property in question to Woodward and did not know that Woodward was purchasing said property for the benefit of Joseph Hock, their verdict should be for defendant.

One of'plaintiffs’ given instructions referred to the question of Hock’s good faith, together with that of defendant’s, but the question of defendant’s good faith, without reference to that of Hock, was not submitted to the jury by any instruction. Said given instruction was not only misleading but each party had the right to have the jury instructed upon his theory of the case, if it had a basis in- the evidence upon which to rest. Chicago Union Traction Co. v. Browdy, 206 Ill. 615, 623. The refusal to give the foregoing instruction was reversible error. The judgment of the Municipal Court is therefore reversed and the cause remanded.

Reversed and remcmded.

Additional Opinion Filed on Petition por Eehearing.

Mr. Justice McGoorty

delivered the opinion of the court.

It is urged on the petition for rehearing that it was immaterial to the issues in this case whether defendant was acting in good faith or not. The real issue of fact was, whether or not plaintiffs were the procuring cause of the sale. It is true, the property was ultimately sold to plaintiffs’ customer (Hock), but not by defendant, for he sold to Woodward at a price $500 below that submitted to plaintiffs. That fact would make no difference if defendant knew that he was dealing with Hock or with Woodward as his representative. But where, as in the present case, there is evidence tending to show abandonment of negotiations with the broker’s customer, and entry upon negotiations with another party apparently in his own interest but in fact as the' secret representative of plaintiffs’ customer, of which defendant was ignorant, and that defendant, on due inquiry, was led to believe that he was dealing with an entirely new party and was not to pay commissions and was thereby induced to sell at such lower price, we think the element of good faith is material. It would not only seem unjust if he acted in good faith in the transaction that he should be mulcted for damages in the form of commissions because of bad faith and deceit practiced upon him by plaintiffs’ customer, but to present the question, whether, so far as the operating influences on defendant are concerned, plaintiffs under such circumstances could be said to be the procuring cause <of the sale. If he was acting in bad faith he would be chargeable with commissions on plaintiffs’ theory, but if acting in good faith, the controlling influences of the sale were not those set in motion by plaintiffs.

Rehearing denied.


author: Mr. Justice McGoorty

text:
    Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, Plaintiff in Error, v. Otto H. Hedrich, trading as Otto H. Hedrich & Company, Defendant in Error.
    Gen. No. 21,715.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John C. Work, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Action by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway .Company, a corporation, plaintiff, against Otto H. Hedrich, trading as Otto H. Hedrich & Company, defendant, in the Municipal Court of Chicago, to recover transportation charges on a carload of coal consigned to defendant. To reverse a judgment for defendant on his set-off, plaintiff prosecutes this writ of error.
    After the arrival of the shipment, defendant reconsigned to the Pennsylvania Company, a connecting carrier, “charges to follow.” Defendant pleaded as a set-off the amount of demurrage charges paid to the Pennsylvania Company. It also paid to plaintiff, after suit brought and before trial, the amount of the transportation charges, and the cause was tried on the set-off. It was admitted that plaintiff knew nothing of and had no interest in the demurrage charges, .and never received any part of them.

      Loesch, Scofield & Loesch, for plaintiff in error.
    No appearance for defendant in error.
    Abstract of the Decision.
    1. Cabbiers, § 50

      —when reconsignment creates new contract. Where a consignee, after the arrival of a shipment at its destination, orders the initial carrier to turn it over to a connecting carrier for delivery to a different party, such reconsignment creates a new contract. •
    2. Carriers, § 188*—when liability of initial carrier for acts of connecting carrier ceases. An initial carrier is not liable for the acts of a connecting carrier after transportation has ceased.
    3. Cabbiers, § 208*—What is the nature of demurrage charges. Demurrage charges are no part of and are separate and distinct from transportation charges, arising, if at all, after the transportation has ended.

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

   Mr. Justice McGoorty

delivered the opinion of the court.


text:
    Ellen White, by Mary F. White, Plaintiff in Error, v. Frank T. Boydson and John W. Snyder, Defendants in Error.
    Gen. No. 21,728.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Action by Ellen White, by Mary F. White, her next friend, plaintiff, against Frank T. Boydson and John W. Snyder, defendants, in the Superior Court of Cook county, to recover for personal injuries sustained by reason of the alleged negligence of defendants. To reverse a judgment for defendants, plaintiff prosecutes this writ of error.
    At the timé of the accident plaintiff was a minor of the age of nine years and five months. Plaintiff’s evidence tended to show the following facts: Defendants were constructing a building which had progressed to the second story, in the walls of which were openings, unbarricaded, for doors and windows. Material was raised from the first story, by a hoist consisting of two platforms, each large enough to place a wheelbarrow thereon, so arranged that when one platform went up, the other went down, and operated by a cable, going over a wheel or pulley to which a horse was hitched. The hoist was inside of and near the front entrance, and a sand pile was outside of and at the rear of the building. Children played on this sand pile, and in the building. Boys played on the hoist when the workmen were absent. They would get on one platform on the second floor and their weight would cause it to descend and the other platform to ascend. Before the boys could operate the hoist it was necessary to remove an iron pin placed through the wheel so as to prevent it from turning. On the day in question, a holiday, this pin was pulled out by a boy. To get to the second floor they procured a ladder and placed it against the bricks of the second floor. Plaintiff, while playing around her home (which was ’across the alley), was attracted by the noise and laughter of the boys. She had never been in the building and did not know of the hoist. She entered the rear of the building, watching the boys on the hoist and the wheel revolving. When the wheel stopped she placéd her hand on it, after which it again started, resulting in the loss of a finger.

      Edward J. Kelley, for plaintiff in error.
    Busby, Weber & Miller and Arthur J. Donovan, for defendants in error.
    Abstract of the Decision.
    1. Negligence, § 19

      —what are essentials of liability for maintenance of attractive nuisance. In. that class of actions based on negligence where the negligence relied on is the maintenance on defendants’ land of an attractive nuisance, the elements of liability are (1) that the attractive thing be tempting to children, and constitutes a means of attracting them upon the premises, which the owner should anticipate; (2) that it be located so as to attract children from the street or from some public place where they may be expected to be; and (3) that it, or something inseparably connected with it, be the proximate cause of the injury sought to be recovered for.
    2. Negligence, § 204*—when verdict improperly directed in action for damages for negligent maintenance of attractive nuisance. In an action by a child nine years of age to recover for the loss of a finger, alleged to be due to the negligence of defendants, contractors constructing a brick building fronting a public street, where the cause of the injury was a hoist used for raising material, alleged to be dangerous and attractive to children, evidence examined and held that an instruction to find defendants not guilty was erroneous, and that the evidence warranted the submission of the case to the jury.

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

   Mr. Justice McG-oorty

delivered the opinion of the court.


text:
    Weldon Webster, Receiver, Plaintiff in Error, v. Ida A. Olsen et al., Defendants in Error.
    Gen. No. 21,741.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Writ dismissed.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Bill in chancery by Weldon Webster, receiver, complainant, against Ida A. Olsen et al., defendants, in the Circuit Court of Cook county. To reverse an order dismissing the bill as to certain defendants, complainant prosecutes this writ of error.
    Weldon Webster, for plaintiff in error.
    E. C. Mapledoram, for defendants in error.
    Abstract of the Decision.
    1. Appeal and ebkob—when review of final decree not authorized on assignments of error. Where the Appellate Court dismisses an appeal from an order in a chancery cause on the ground that it was premature, the order appealed from not being final, the assignments of error filed on such dismissed appeal, when refiled on appeal from a final decree in the same cause, cannot be treated as bringing the final decree before the Appellate Court for review, since such assignments relate to proceedings anterior to such final decree.
    2. Appeal and ebkob, § 1108

      —when writ of error not bringing all defendants before court dismissed. On appeal by a complainant from a final decree dismissing the bill as to several defendants, and entering a decree against only one defendant, a writ of error not bringing all the defendants before the Appellate Court must be dismissed, since the writ must agree with the record, and in order to bring the decree up for review, all living defendants in the original suit must join, so that the whole case may be disposed of and that the record may agree with the record below.

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

   Mr. Justice McG-oorty

delivered the opinion of the court.


text:
    James M. Fair, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 21,772.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La But, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Action by James M. Fair, plaintiff, against the City of Chicago, defendant, in the Municipal Court of Chicago, to recover for wages. To reverse a judgment for plaintiff for $124.25, defendant prosecutes this writ of error.
    Samuel A. Ettelson, for plaintiff in. error; Roy S. Gaskill and John A. Cooke, of counsel.
    A. D. Gash, for defendant in error.
    Abstract of the Decision.
    1. Civil service, § 6a

      —when motion to find issues for defendant erroneously denied,. In an action by a city employee to recover wages during a period when he claims he was illegally laid off, where plaintiff alleges that he was duly certified by the. Civil Service Commission as such employee, a motion to find the issues for defendant is erroneously denied where there is no competent evidence, by record of such commission or otherwise, that plaintiff was certified as alleged.

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

2. Civil service, § 6a —when evidence insufficient to show certification of city employee. In an action by a city employee to recover wages during a period when he claims he was illegally laid off, where plaintiff alleges that he was duly certified by the Civil Service Commission as such employee, a finding for plaintiff held against the manifest weight of the evidence where there was no competent evidence, by record of such commission or otherwise, of such certification.

3. Civil service, § 25*—when case remanded on reversal.. In an action by a city employee to recover wages during a period when he claims he was illegally laid off, where plaintiff alleges that he was duly certified by the Civil Service Commission as such employee, but offers no competent evidence, by record of such commission or otherwise, of such certification, the case will, on reversal for want of such evidence, he remanded where it appears that the court and plaintiff's counsel proceeded on the theory that proof of certification was unnecessary, since but for such ruling other evidence ¡might have been introduced in support of plaintiff’s contention.


text:
    Flora B. Hughes, Appellee, v. John Dobson, Appellant.
    Gen. No. 21,821.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed November 14, 1916.
    Statement of the Case.
    Action by Flora B. Hughes, plaintiff, against John Dobson, defendant, in the Circuit Court of Cook county, to recover for the loss of certain rugs, and damage to other property while defendant was hauling household goods from Glenwood to Chicago under contract with plaintiff. From a judgment for plaintiff for $188, defendant appeals. The case was tried in the Circuit Court on appeal from a judgment for plaintiff rendered by a justice of the peace.
    George A. Brinkman, for appellant.
    H. F. Pennington, Fred A. Pennington and H. F. Pennington, Jr., for appellee.
    Abstract of the Decision.
    1. Justices of the peace, § 263

      —how jurisdiction of justice determined. On appeal, the jurisdiction of a justice of the peace is to be determined from the facts appearing in evidence.
    2. Justices op the peace—when record shows jurisdiction in justice. In an action tried in the Circuit Court on appeal from the judgment of a justice of the peace, where on appeal from the judgment of the Circuit Court it was assigned for error that the justice had no jurisdiction of the subject-matter of the action, the contention that the value of the property in question exceeded $200, held not supported by the record.
    3. Carriers—what does not defeat action for loss of goods. In an action to recover the value of part of certain household goods lost by defendant while hauling them from Glenwood to Chicago under contract with plaintiff, the fact that plaintiff failed to discover her loss-and notify defendant thereof until three days after the balance of the goods were delivered, held not to defeat the action where it appeared that the goods were lost by defendant.
    4. Carriers, § 139*—when evidence sufficient to establish valúa of goods lost. In an action to recover the value of certain rugs lost by defendant while hauling household goods from Glenwood to Chicago under contract with plaintiff, testimony of the dealer who sold the rugs to plaintiff about ten years previously, stating their fair cash market value when sold, and that if the rugs had been well cared for since the sale, their value would have improved with lapse of time, coupled with testimony of plaintiff that the rugs had been well cared for, held, taken as a whole, sufficient to establish the fair cash market value of the rugs at the time when they were lost.

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

      See Illinois Notes Digest, Vols. XI to XY* 9Rcl Cumulative Quarterly, same topic and section number.

   Mr. Justice McGoorty

delivered the opinion of the court.

5. Cabecees, § 139 —when evidence sustains judgment for goods lost. In an action to recover the value of certain rugs lost by defendant while hauling household goods from Glenwood to Chicago under contract with plaintiff, a verdict for plaintiff held sustained by the evidence.


author: Mr. Presiding Justice O’Connor

text:
    Harriette L. Cowin, Defendant in Error, v. Arctic Fur Shop, Plaintiff in Error.
    Gen. No. 20,125.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed November 15, 1916.
    Statement of the Case.
    Action by Harriette L. Cowin, plaintiff, against the Arctic Fur Shop, a corporation, defendant, in the Municipal Court of Chicago, to recover for breach of a contract of employment. To reverse a- judgment for plaintiff for $200, defendant prosecutes a writ of error. Defendant contracted to employ plaintiff as a milliner for six months, but discharged her before the expiration of such period, claiming that she refused to obey orders and was guilty of improper conduct towards defendant’s customers.
    Samuel J. Richman, for plaintiff in error.
    Henry Roth, for defendant in error.

      Abstract of the Decision.
    Master and servant, § 84

      —when evidence sustains judgment for. wages. In an action to recover for breach of a contract whereby defendant agreed to employ plaintiff as a milliner for a named period, but discharged her prior to the expiration of such period, where defendant claimed that the discharge was justified, evidence held to sustain a judgment for plaintiff.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Presiding Justice 0 ’Connor

text:
    Charles M. Weber, Defendant in Error, v. Henry C. Krueger, Plaintiff in Error.
    Gen. No. 21,196.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed November 15, 1916.
    Statement of the Case.
    Action by Charles M. Weber, plaintiff, against jTonv-ir i \ Krueger, defendant, in the Municipal Court of Chicago, to recover commissions as a real estate broker for obtaining a purchaser for defendant’s property. To reverse a judgment for plaintiff'for $83.75, defendant prosecutes this writ of error.
    Otto C. Rentner, for plaintiff in error.
    John C. Lews and Frederick Sass, for defendant in error.

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

   Mr. Presiding Justice 0 ’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and' error, § 1567 —When correctness of ruling on proposition of law immaterial'. Where in a case tried hy the court without a jury the ultimate facts found by the court are such that no judgment would stand except that entered, the question whether there was error in a ruling on a proposition of law is immaterial.

2. Appeal and error, § 1414*—when findings of fact hy court will not he reviewed. Where the evidence heard at the trial is not in the record, the Appellate Court will not review findings of fact by the trial court trying the case without a jury.-


text:
    Simon P. Gary, Appellee, v. Charles R. Beadles and Roberta D. Beadles, Appellants.
    Gen. No. 21,293.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    -Reversed and remanded.
    Opinion filed November 15, 1916.
    Rehearing denied November 29, 1916.
    Statement of the Case.
    Action by Simón P. Gary, plaintiff, against Charles B. Beadles and Boberta D. Beadles, defendants, in the County Court of Cook county, to recover for legal services. From a judgment for plaintiff for $750, defendants appeal.
    Plaintiff was employed by defendants to represent them in a suit, known as Levi v. Beadles. The evidence tended to show that plaintiff was an attorney at law, and had been practicing-since 1896; that in 1905 defendants undertook to build a building in Chicago. The work was commenced and some money furnished by a banker named Tisdelle, who after-wards got into financial difficulties, and in order to complete the building defendants asked Levi to advance the money needed for that purpose. In the negotiations with Levi, plaintiff represented Levi and drew up the contracts and other papers. To protect himself, Levi had defendants convey the property to him and authorize him to collect rents. When the building was completed, Levi collected the rents. Afterwards when Tisdelle demanded payment, Levi proposed to enforce his lien by foreclosure. Defendant Beadles stated that he had no attorney and knew none, and Levi suggested plaintiff. Afterwards, as plaintiff testified, Beadles asked plaintiff if he could represent defendants in the foreclosure suit. Plaintiff said: “If there is no controversy between you and Mr. Levi, I think I can represent you,” but otherwise not. Beadles said he would employ plaintiff with the understanding that he could change attorneys at any time, which was agreed to. Levi was represented in the foreclosure suit by other counsel. Plaintiff filed a formal answer for defendants, the case was referred to a master, and testimony introduced. The principal contest before the master was between Tisdelle and Levi, and little or none between Levi and defendants. It seems Levi and plaintiff sought to defeat Tisdelle by allowing Levi’s claim in full, being a lien superior to Tisdelle’s. In 1908, plaintiff suggested that defendants secure another attorney, as a controversy had arisen between them and Levi. This was done.
    Defendants contended that plaintiff was disqualified to act as attorney for them, as he had been Levi’s attorney concerning the subject-matter of the controversy, and that plaintiff was derelict in his duty in the foreclosure suit in that he did not question the ownership of certain bonds involved, that Levi was not required to account for the rents collected and that the defense of usury was not interposed.
    Plaintiff testified as to his reasons for his course, and that defendants acquiesced, which defendants denied. After plaintiff withdrew, defendants, through their new counsel, filed pleadings and had the question of the accounting gone into.
    Henry W. Leman and Frank H. Culver, for appellants.
    Simon P. Gary, pro se and Michael Lyons, for appellee.
    Abstract of the Decision.
    1. Attorney and client, § 135

      —when evidence shows attorney occupying position adverse to client. In an action to recover for professional services as attorney at law, where it appeared that, after acting as counsel for one proposing to lend money to defendants on mortgage, plaintiff was engaged to. represent defendants in the foreclosure proceeding arising out of the loan, the mortgagee, plaintiff’s former client, assenting to the arrangement and being represented in the foreclosure proceeding by other counsel, evidence examined and held that the plaintiff was in a position where he could not properly protect the interest pf defendants in the foreclosure proceeding, regardless of his intention or motive, since there is a rigid rule that attorneys must not place themselves in positions where they may be required to choose between conflicting interests, or be led to attempt to reconcile conflicting interests rather than to enforce to their full extent the interests which they alone should represent.
    2. Attorney and client, § 137*—when erroneous to refuse instruction that attorney not entitled to recover for services. In an action to recover for professional services as attorney at law, where the evidence showed that plaintiff had previously been the attorney of the adverse party in the transaction out of which the litigation arose, and was not in a position properly to protect defendants’ interests therein, the refusal of the trial court to instruct the jury that plaintiff could not recover, held erroneous.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Fred De Fillippi, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 21,394.
    (Not to Tbe 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 March term, 1915.
    Affirmed.
    Opinion filed November 15, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Fred De Fillippi, plaintiff, against the. Spring Valley Coal Company, defendant, in the Superior Court of Cook county, to recover for personal injuries. From a judgment for plaintiff for $18,500, defendant appeals.
    The injuries sustained were the result of an accident happening April 29, 1911, at defendant’s coal mine, at Spring Valley, Illinois, where plaintiff, then about nineteen years old, was employed as a miner. On the morning of said date, plaintiff went into the mine to work. Owing to conditions, he could not work and-returned to the bottom of the shaft. About nine o’clock, he, with other men were being hoisted to the surface. When the cage reached the top, and as plaintiff was in the act of stepping off, it dropped several feet, causing plaintiff to fall backward into the cage. The engineer immediately brought it back up, and plaintiff’s left leg, which extended over the edge, was caught between the cage and the landing platform and was so crushed that it was necessary to amputate it about six inches below the crotch.
    F. J. Canty, P. L. McArdle and Mastín & Sherlock, for appellant; Frank Crozier, of counsel.
    Franklin B. Hussey and C. N. Hollerioh, for appellee.

      Abstract of the Decision.
    1. Mines and minerals, § 171

      —when engineer qualified as expert on operation of engine. In an action to recover for personal injuries sustained by a miner while being hoisted to the surface of a mine in a cage or elevator, wheré it was claimed that defendant’s engineer was negligent in the operation of his engine, a witness who had knowledge of the engine in question, and who had twenty-three years’ experience in operating a similar engine, and who had passed the examination required by the statute as such an engineer, held.sufficiently qualified as an expert witness as to the character and proper manner of operating the engine.
    2. Mines and minerals, § 152*—when operation of mining machinery not matter -of common knowledge. In an action to recover for personal injuries sustained by a miner while being hoisted to the surface of a mine in a cage or elevator, where plaintiff sought to prove that defendant’s engineer was negligent in failing to apply the- brake when he stopped the car at the surface, and where it appeared that the shaft had certain stops designed to hold the cage in place, held that where it appeared that the machinery was complicated the question whether when the stops failed to work the car would drop without an application of the brake was not a matter of common knowledge, and plain and open to the jury.
    3. Mines and minerals, § 152*—where rule as to admission of opinion evidence particularly applicable. The rule that where facts on which opinions are founded cannot be made intelligible to the jury, the opinions of witnesses may be received, is particularly applicable to mining, and to eases involving mining which are tried in Cook county, where there are no mines.
    4. Evidence, § 101*—when admission of evidence unobjectionable because of evidence introduced by adverse party. Where a plaintiff seeks to prove negligence in the use of machinery by expert testimony, defendant cannot object to such testimony where it had previously asked one of its own witnesses a question calling for an opinion as to the operation of such machinery, which the witness answered by giving the opinion asked, since such question indicates that defendant considered the subject as one on which opinion evidence was proper.
    5. Appeal and error, § 1487*—when admission of evidence harmless error. Where a declaration in an action for personal injuries in one count charges negligence by defendant’s engineer in failing to apply the brake when a cage in a mining shaft, in which plaintiff is being hoisted, has reached the surface, erroneous admission of expert testimony tending to show the negligent failure to apply the brake is not ground for reversal where other counts charge negligence in respects other than that of failure to apply the brake, which the evidence is sufficient to support.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

6. Damages, § 190 —how amount determined. In an action for personal injuries, the amount of damages which may be recovered depends on the circumstances of the case, and is not a matter of mathematical computation.

7. Damages, § 125*—when verdict for Toss of leg not excessive. In an action by a miner to recover for personal injuries resulting in the loss of his left leg about six inches below the crotch, where plaintiff at the time of the accident was nineteen years of age and had a high school education, and where though he still suffered pain at the time of the trial, three years later, the wound had healed, a verdict for $18,500 held not excessive, although plaintiff earned but $2 to $2.25 per day and worked only when the mine was operated, which was from 150 to 200 days in the year.


text:
    The People of the State of Illinois ex rel. Samuel P. Thrasher, Appellee, v. Jacob Eisenberg, Appellant.
    Gen. No. 22,662.
    1. Injunction, § 195*—when HU to enjoin disorderly house sufficient. In a bill brought under the Act of 1915 sec. 2 [Cal. Ill. St. Supp. 1916 13591(3)], relating to the suppression of places kept for the purpose of lewdness, etc., an injunction may be granted restraining such use of the place on the filing of a verified bill containing sufficient allegations, and without the filing of a petition for the injunction, which is only necessary where the bill is not verified or does not contain sufficient allegations, the Legislature not intending that the practice and procedure under the section should be different from that in other chancery cases.
    2. Injunction, § 162*—when Hll insufficient to, justify injunction without notice. In a bill brought under the Aet of 1915, sec. 2 [Cal. Ill. St. Supp. 1916, f 3591(3)], relating to the suppression of places kept for the purpose of lewdness, etc., allegations of the bill held insufficient to warrant the court in granting an injunction without notice under the Injunctions Act, sec. 3 (J. & A. U 6183), providing that no injunction shall be issued without notice unless it shall appear, from the bill or affidavit accompanying it, that complainant’s rights will be unduly prejudiced if not issued without notice.
    3. Injunction, § 164

      —when granting of preliminary injunction without notice erroneous. It is error to issue a preliminary injunction under the Act of 1915, sec. 2 [Cal. Ill. St. Supp. 1916, IF 3591 (3) ], to restrain the use of places alleged to be kept for the purpose of lewdness without giving defendant opportunity to show that he in good faith attempted to abate the nuisance, or that no nuisance existed, since section 5 of the Act [Cal. Ill. St. Supp. 1916, If 3591 (6) ] provides that no such injunction shall issue against such property or its owner if it appear that such owner in good faith attempted to prevent or abate the nuisance.
    4. Equity, § 489*—when relief contrary to special prayer granted under general prayer. Although formerly it was a rule of equity pleading that to obtain special relief a special prayer was necessary, the rule is now relaxed so that where the bill and proof in support thereof will entitle complainant to relief it may be granted under the prayer for general relief, although contrary to the special prayer.
    5. Injunction, § 159*—when preliminary injunction granted on prayer for perpetual injunction. In a bill brought under the Act of 1915, sec. 2 [Cal. Ill. St. Supp. 1916, jf 3591(3)], relating to the= suppression of places kept for the purpose .of lewdness, etc., a preliminary injunction may issue under a prayer for a perpetual injunction, although there is no prayer for a preliminary injunction.
    6. Injunction, § 174*—who not necessary parties defendant to hill to enjoin disorderly house. In a bill brought under the Act of 1915, sec. 2 [Cal. Ill. St. Supp. 1916, If 3591(3)], relating to the suppression of places kept for the purpose of lewdness, etc., an order granting a preliminary injunction is not erroneous because the lessees of the property in question are not served with summons, since it is not a prerequisite to the issuance of such an injunction that all the defendants be served with summons.
    7. Injunction, § 159*—when insufficiency of petition to enjoin disorderly house immaterial. In a bill brought under the Act of 1915, sec. 2 [Cal. Ill. St. Supp 1916, jf 3591(3)], relating to the suppression of places kept for the purpose of lewdness, etc., the fact that a petition for a preliminary injunction is not sufficiently verified is immaterial where the verification of the bill is sufficient.

      8. Injunction, § 177

      —when bill to enjoin disorderly house sufficiently describes premises. In a bill brought under the Act of 1915, see. 2 [Cal. Ill. St. Supp. [¶] 3591(3)], relating to the suppression of places kept for the purpose of lewdness, etc., held that the premises in question were sufficiently described in the bill.
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed and remanded.
    Opinion filed November 15, 1916.
    Petition for certiorari dismissed.
    Brady, Rutledge & Devanee, for appellant; James A. Brady, of counsel.
    Sims, Welch & Godman, for appellee; Elwood G. Godman, of counsel.

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

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

   Mr. Presiding Justice 0 ’Connor

delivered the opinion of the court.

This is an appeal from an interlocutory order entered by the Circuit Court of Cook county, enjoining the defendant, Jacob Eisenberg, and the tenants, occupants and all other persons having in any way to do with the control and management of the premises known as No. 32 West 20th street and No. 1932 Archer avenue, Chicago, from permitting such premises to be used for purposes of lewdness, assignation and prostitution. The proceedings were instituted under the provisions of an act entitled, “An act regarding places used for purposes of lewdness, assignation, or prostitution, to declare the same to be public nuisances, and to provide for the more effectual suppression thereof.” [Laws of 1915, p. 371, Cal. Ill. St. Supp. 1916, ¶ 3591(2) et seq.]

On August 19, 1916, a bill in equity was filed upon the relation of Samuel P. Thrasher, a private citizen of Cook county, under the authority of section 2 of the Act. In the same proceeding and at the same time a petition was filed by the same party.

The material allegations of the bill are that Bisenberg is the owner of record of the property; that since June 21, 1916, and for many years prior thereto, the buildings located thereon have been continuously used and permitted to be used by Eisenberg, the lessees, tenants and occupants, for purposes of lewdness, assignation and prostitution, in violation of the act; that on June 28th and on July 12, 1916, the relator wrote and mailed a letter to Eisenberg, wherein it was stated that the premises were being used in violation of the act; that on August 3,1916, a written notice was personally served on Eisenberg notifying him that on June 21st and on July 28th, and on divers days between said dates, and for a long time prior thereto, the premises had been used contrary to and in violation of the provisions of the act; that the notice called particular attention to section 2 of the Act, which provides that no proceedings could be instituted to abate the nuisance until five days after the service of the notice ; and informed Eisenberg that if he did not abate the nuisance within, a reasonable time after the expiration of the five days, proceedings would be instituted in a court of equity to abate the nuisance; that Eisenberg had failed to abate the nuisance, and that the buildings have since been used in violation of the act. The bill prayed that Eisenberg, and the lessees and occupants of the premises, whose names are unknown, be made parties defendant, and that they be perpetually enjoined and restrained from maintaining or permitting such nuisance.

The petition contained substantially the same allegations as the bill, but they were not set forth with as much particularity. The bill and petition were both verified. On August 22, 1916, without notice to the defendant, the injunctional order complained of was entered.

Counsel for appellee contends that under the act two distinct remedies are given: (1) a perpetual injunction of which a bill in equity is the basis, and (2) a temporary injunction based upon a petition. This contention is concurred in by the appellant. However, we are unable to agree with this construction of the act. Without entering into an analysis of section 2, we are clearly of the opinion that upon the filing of a bill which contains sufficient allegations and is properly verified a preliminary injunction may be obtained, and that no petition need be filed. It is only where the bill is not verified or does not contain sufficient allegations that a petition is necessary. From a careful reading of the section, we think that the Legislature did not intend that the practice and procedure under this section should be different from that followed in other chancery cases.

Counsel for defendant Eisenberg contends that the order was erroneously entered in that no notice was given him of the time and place of the application for the injunction, and that there is no sufficient allegation in the bill or petition that the rights of complainant would be unduly prejudiced if the injunction was not issued without such notice. On the other hand, the relator contends that under the act in question, no notice is required, and that if such notice were required the allegations are sufficient to show that the rights of the relator would be unduly prejudiced if notice were given.

Section 3, chapter 69, Rev. St. (J. & A. ¶ 6163), provides that no injunction shall issue, “without previous notice of the time and place of the application having been given to the defendants to be affected thereby, or such of them as can conveniently be served, unless it shall appear, from the bill or affidavit accompanying the same, that the rights of the complainant will be unduly prejudiced if the injunction is not issued immediately or without such notice. ’ ’ The policy of the law is that no one shall be deprived of any substantial right even temporarily without first being heard in his own defense. Swanson v. Fisher, 148 Ill. App. 104. We are clearly of the opinion that the allegations of the bill are not sufficient to authorize the court to issue the injunction without notice.

Furthermore, section 5 of the Act [Cal. Ill. St. Supp. 1916, [[3591 (6)] provides that after the owner of the premises has been notified as required by section 2, no injunction shall issue against the property or the owner, if it appear that the owner has in good faith endeavored to. prevent or abate the nuisance. In the case at bar the defendant was given no opportunity to show, if he could, that he had in good faith attempted to abate the nuisance; or to show, if he could, that no such nuisance existed.

Defendant next contends that the order for the injunction was erroneously entered in that neither the bill nor the petition contains a prayer for a temporary injunction. Relator’s position-is. that as he was entitled only to a permanent injunction under the bill, no prayer for a temporary injunction was necessary; that the only relief he could obtain under the petition was a temporary injunction, and therefore the prayer for a temporary injunction in the petition was unnecessary. It was formerly an elementary rule of pleading that where special relief was sought, a special prayer was necessary. In modern times, however, the rule has been relaxed, and it is now held that where the allegations of the bill and the proof in support thereof entitle the complainant to relief, it may be granted under the prayer for general relief, even if contrary to the special prayer. Casstevens v. Casstevens, 227 Ill. 547. A prayer for an injunction, although not for a temporary injunction, will sustain the issuance of a preliminary injunction. Shipley v. Western Maryland Tidewater R. Co., 99 Md. 115. In the case at bar, a preliminary injunction may issue, although there is no prayer for such injunction, under the prayer in the bill for a perpetual injunction.

The defendant next contends that the lessee is not made a party as required by the act. The bill does make the lessee a party defendant, and the question whether the lessees are properly in court is not before us on this appeal. They are not here making any objection, and it is not a prerequisite to the issuance of a preliminary injunction that all the defendants are served with summons.

Objection is also made to the verification of the petition. In our opinion the verification of the petition is not sufficient, but as the verification of the bill is, the defect is immaterial.

The objection that the notice served on the defendant did not sufficiently describe the premises is without merit.

For the error in failing to give notice of the time and place of the application for the injunction, the order is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Goodwin

text:
    Mary Pierce, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,363.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Edwabd M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed November 15, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Mary Pierce, as administratrix of the estate of Hugh McGuire, deceased, plaintiff, against the Chicago City Eailway Company, defendant, to recover for the death of plaintiff’s intestate. From a judgment for plaintiff for $6,500, defendant appeals.
    The material facts are as follows: Seventy-fifth street was, at the time of the accident, the southern terminus of defendant’s Cottage G-rove line. The north and southbound tracks were connected by two crossovers. In connection with the crossover from the southbound to the northbound track there was a hand switch, and cars from the north were sent south of this switch, and when an opportunity offered were sent back of the switching point and across to the northbound track. Cars constantly accumulated at the terminal, and in order to transfer them and to arrange them so as to get them out in the order in which they arrived, there was a constant backing and switching. Gfenerally the work- was done by the motormen and conductors, but at meal times it was usually done by two switchmen, and when necessary- to get out on time, the car crew assisted even at mealtimes. There was also a supervisor or starter who had complete authority over the cars and men at the terminus. Eichorn, the starter at the time of the accident, had been in the employ of the company about twenty-four years.
    On the day of the accident deceased, a conductor, and his motorman, reached the terminus after 6 p. m. Deceased ate his supper on the car which had been switched to the outbound track. Finding it near starting time, he went to the north end of the car and commenced to shift the trolley poles preparatory to starting, and while so engaged was struck by an incoming car operated by one of the switching crew, which, instead of proceeding to the end of the inward track, took the switch which had been left open and crossed to the other track. On the outward bound track there was room for but four cars back of the switch, and deceased’s was the fourth. The switch in question was operated by raising a lever with the hand, which, when released, fell back to the original position, in which the inward track was left clear to its end. The starter raised the lever himself to switch deceased’s car, and for some reason propped up the handle with a block, leaving the switch open.
    The following instructions were given for the plaintiff:
    “The court instructs the jury that where a master confers authority upon one of his employees to take charge and control of a certain class of workmen, in carrying on some particular branch of his business, such employee, in governing and directing the movements of the men under his charge, with respect to that branch of the business is the direct representative of the master, and is not a mere fellow-servant; and all the commands given by him within the scope of his authority are, in law, the commands of the master, and if he is guilty of a negligent and unskillful exercise of his power and authority over the men under his charge, it is in law the same .as though the master itself was guilty of such conduct.”
    “The court instructs the jury that to constitute servants of the same master, fellow-servants, it is not enough that they are engaged in doing parts of the same work, or in the promotion of the same enterprise carried on by the master, not requiring co-operation or bringing them together, or in such relations as that they may have an influence upon each other, but it is essential that at the time it is claimed such relations exist they shall be directly co-operating with each other in the particular business in hand, or that their usual duties shall bring them into such habitual association that they may have the opportunity and power to exercise an influence upon each other promotive of proper caution for their personal safety.”
    “The court instructs the jury that when it is said in these instructions that the deceased was required to exercise ordinary care for his own safety, it is meant that he was required to exercise that degree of care which an ordinarily prudent person, situated as he was, both before and at the time of the injury, would have exercised for his or her own safety.”
    Franklin B. Hussey, Charles Le Boy Brown and J. B. Guilliams, for appellant.
    James C. McShane, for appellee.
    Abstract of the Decision.
    1. Master and servant, § 699

      —when evidence shows street car conductor not guilty of contributory negligence. In an action to recover for the death of a street car conductor as a result of being struck hy another car while changing the trolley poles of his car at the end of the line preparatory to making another trip, where defendant relied on contributory negligence, evidence examined and held to sustain a finding that plaintiff’s intestate was not guilty of contributory negligence.
    2. Master and servant, § 693*—when evidence shows street railway employee guilty of negligence. In an action to recover for the death of a street car conductor as a result of being struck by another car while changing the trolley poles of his car at the end of the line preparatory to making another trip, where the cause of the accident was the act of defendant’s starter in leaving open a switch whereby a car arriving from the opposite direction took the switch instead of proceeding to the end of the track, thereby crossing to the other track and striking deceased, a verdict that the starter was negligent, held not against the manifest weight of the evidence.
    3. Master and servant, § 696*—when evidence shows employee vice principal. In an action to recover for the death of a street car conductor as a result of being struck hy a car at a street car terminal, where the cause of the accident was the act of defendant’s starter in leaving a switch open, so that an incoming car took the switch instead of proceeding ahead, striking deceased, evidence that defendant established a rule that “starters will have control over the movement of cars at terminals * * * and other points where employees are stationed,” coupled with testimony of the starter that he had such control at such time and place, held sufficient to show that the starter was a vice principal.

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

      See Illinois Notes Digest, Yois, 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.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

4. Master and servant, § 242 —what act of vice principal not that of felloro-servant. In an action to recover for the death of a street car conductor as a result of being struck by a car at a street car terminal, resulting from the act of a starter in leaving open a switch, causing an incoming car to take the switch and strike deceased, where there was evidence sufficient to show that the starter was a vice principal, held that in the act of personally opening the switch the starter was not a fellow-servant of deceased, the starter’s duty being that of supervision, and to use due care to see that no other car was switched across so as to injure deceased, which duty was continuing and of which the starter could not divest himself, no matter whether the switch was opened by himself or another.

5. Master and servant, § 103*—when street car conductor acting within scope of authority. In an action to recover for the death of a street car conductor as a result of being struck by another car at a street car terminus, where there is evidence that at the time of the accident it was within one minute of deceased’s leaving time, for which reason he himself was shifting his trolley poles preparatory to a quick departure, instead of waiting for a switching crew who usually performed such service, held that deceased was acting in the scope of his duty when killed, for since the duties of conductors and motormen in such case cannot be absolutely defined and divided, and since the successful prosecution of the company’s business demands the prompt dispatch of cars from a terminus, it is the duty of conductors- and motormen to co-operate to that end.

6. Master and servant, § 779*—when instruction as to effect of negligence of vice principal proper under evidence. In an action to recover for the death of a street car conductor as a result of the act of defendant’s vice principal, a starter, in leaving a switch open at a street car terminus, so that deceased was struck by another car, an instruction as to the effect of the negligent and unskilful exercise of the authority of a vice principal as bearing on the principal’s liability for negligence, held not erroneous for want of evidence whereon to base it, where it appeared that at the time of the accident such starter was, under defendant’s rules, in control of cars and men at the point where the accident occurred, and where the man in charge of the car which struck deceased was under the control of such starter and subject to his directions, although it appeared that the starter gave no commands, the language used being obviously proper in such case.

7. Master and servant, § 779 —When instruction on effect of acts of vice principal on master’s liability not erroneous. In an action to recover for the death of a street car conductor as a result of the act of defendant’s vice principal, a starter, in leaving a switch open at a street car terminus, so that deceased was struck by another car, an instruction that the “commands” of the vice principal within the scope of his authority are the commands of the principal, held not erroneous where the evidence showed that no commands were given, and that the act complained of as negligence consisted of permitting the car which struck deceased to pass the open switch, since the jury could not have understood the reference to commands to refer to directions given in the case, and since the language complained of was used merely to illustrate to the jury the close identification of the master and vice principal.

8. Master and servant, § 789*—nohen instruction on effect of negligence of vice principal does not direct a verdict. An instruction that the commands given by a vice principal within the scope of his authority are the commands of the master, and that if the vice principal is negligent in the exercise of his power and authority, his negligence is the negligence of the master, held not to direct a verdict either expressly or impliedly, the sole effect of the instruction being to say that the negligence of a direct representative of the master is that of the master himself.

9. Master and servant, § 804*—when instruction on who are fellow-servants not misleading. In an action to recover for the death of a street car conductor as a result of the act of defendant’s starter in leaving a switch open at a street car terminus, whereby deceased was struck by another car, where defendant claimed that the starter was a fellow-servant of deceased, an instruction as to who are fellow-servants, held to give no misleading direction or impression, where the second part, which was the vital ánd directing part of the instruction, stated with clearness the alternative conditions which must exist in order to constitute fellow-servants, although the first or negative part was awkwardly worded and difficult to understand.

10. Master and servant, § 699*—when instruction on contributory negligence not erroneous. In an action to recover for the death of a street car conductor as .a result of the negligence of defendant’s vice principal, an instruction defining ordinary care as that of an ordinarily prudent person “situated as he was, both before and at the time of the injury,” held not erroneous as assuming that an ordinarily prudent person would be situated as deceased was, the plain import of the instruction being to require deceased to observe ordinary care both before and at the time of the injury.

11. Master and servant, § 777 —when instruction properly refused as misleading. In an action to recover for the death of a street car conductor as a result of the act of defendant’s starter in opening a switch at a street car terminus and slipping a block under the switch handle so that the switch remained open, as a result of which a car took the switch instead of proceeding to the end of the line, and, crossing to the other track, struck and killed deceased, an instruction that because it was not charged in the declaration that a stick or block of wood was used to prop the switch open, no recovery could be had on account of the act of using such block, held properly refused, since the act was but a single incident in the negligent conduct charged in the declaration, and the requested instruction would have created an erroneous impression that such fact might be eliminated in considering the question of negligence.

12. Instructions, § 128*—when refusal to direct finding on count not supported by evidence not erroneous. In an action to recover for death which is the result of personal injuries sustained by deceased by reason of defendant’s negligence, it is not reversible error to refuse instructions to find defendant not guilty on counts not supported by evidence where the evidence is sufficient to support any one valid count.


text:
    Myron A. Martin, Administrator, Appellee, v. Clarence T. Coe and Samuel A. Coe, Appellants.
    Gen. No. 22,006.
    (Not to Tbe reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed November 15, 1916.
    Rehearing denied November 28, 1916.
    Statement of the Case.
    Bill in chancery by Myron A. Martin, administrator of the estate of Alice Long, deceased, complainant, against Clarence T. Coe and Samuel A. Coe, defendants, in the Circuit Court of Cook county, to set aside a certain instrument whereby deceased’s property was transferred to defendants without consideration, on the ground of insufficient mental capacity in deceased at the time of executing the instrument. From a decree granting the relief prayed, defendants appeal.
    George A. Long, a defendant, husband of deceased, answered and filed a cross-bill alleging that the property conveyed by deceased, which stood in her name at the time of executing the instrument, was in part his property. The court decreed affirmative relief on the cross-bill.
    Henry J. and Charles Aaron, for appellants; Douglas C. Gregg, of counsel.
    Charles H. Aldrich, for appellee.
    Park Phipps, for appellee George A. Long.
    Abstract of the Decision.
    Cancellation of instruments, § 35

      —when evidence insufficient to sustain decree setting aside instrument. On a hill to set aside a written instrument transferring property to defendants, on the ground of insufficient mental capacity in the maker of the instrument at the time the instrument was executed, evidence examined and a decree finding that the maker had not such capacity and setting the instrument aside, held not sustained by the evidence.

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

   Mr. Justice Goodwin

delivered the opinion of the court.