text:
    A. E. Griesser, trading as A. E. Griesser Fruit & Produce Company, Defendant in Error, v. W. E. Taylor, Plaintiff in Error.
    Gen. No. 6,278.
    1. Process, § 12

      —when summons void. A summons issued and dated the first day of October, and returnable on the “second Monday of October next,” held void.
    2. Process, § 75*—how defect in taken advantage of. Any defect in a writ, its service or return, which is apparent from the inspection of the record, may be taken advantage of by motion to quash the summons and dismiss the suit, and need not be raised by plea in abatement.
    3. Appeal and error, § 1802*—when cause remanded for further proceedings. Where a summons is improperly issued and confers no jurisdiction, the judgment should be reversed but remanded for further proceedings, especially where the fault is that of the clerk and not of the party or his attorneys:
    Error to the County Court of Woodford county; the Hon. Arthur G. Fort, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed August 10, 1916.
    John R-. Tweddale and Orman Ridgely, for plaintiff in error.
    Clarence W. Heyl and Harry O. Heyl, for defendant in error.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On October 1, 1915, a summons was issued by the clerk of the County Court of Woodford county returnable on the “second Monday of October next,” at the suit of Griesser v. Taylor, and the same was duly served on that day. On October 11th, Taylor, by his attorney, entered an appearance in said cause limited to the purpose of making said motion, and moved the court to quash the summons and dismiss the suit for the reason that the said summons was made returnable to the October term, A. D. 1916. Said motion was heard and denied. Taylor did not appear further. There was a default and a judgment for the amount stated in the affidavit of claim. Taylor sued out this writ of error to review that judgment.

The summons was dated and issued October 1, 1915, and it was made returnable on the second Monday of October next. Taylor contends that this means October, 1916; G-riessner contends that it means “the next second Monday of October, 1915,” and that the word ‘ ‘ next ’ ’ does not refer to the word 1‘ October. ’ ’ In Calhoun v. Webster, 3 Ill. 221, the summons was dated November 6, 1839, and was returnable on the third Monday of November next. It was held that the writ was absolutely void. In Rattan v. Stone, 4 Ill. 540, where the summons was returnable on the fourth day of the term instead of the first day, it was held to be void. In Hildreth v. Hough, 20 Ill. 331, the summons was dated October 11, 1855, and was returnable on the fourth Monday of October next. It was held that the word “next” referred to the month and not to Monday, and that the writ was a nullity. In Elee v. Wait, 28 Ill. 70, the summons in chancery was dated March 2, 1860, and required the defendant to appear on the third Monday of March next. This was held to be a nullity. In Miller v. Handy, 40 Ill. 448, the writ there discussed was dated August 1, 1838, and was returnable on the third Monday of August next. It was held to be a nullity, and that by no rational construction could it be made good. In Hochlander v. Hochlander, 73 Ill. 618, the writ was dated May 8, 1872, and returnable on the third Monday of May next, and it was held that the service thereof failed to confer jurisdiction. In Culver v. Phelps, 130 Ill. 217, the writ there discussed was dated October 6, 1875, and was returnable on the first Monday of October next. It was held void. The reason why such writs returnable by the terms thereof one year later or more are void is because section 1 of the Practice Act (J. & A. ft 8538) requires writs to be returnable on the first day of the next term, or if ten. days do not intervene, then to the succeeding term, and that the. plaintiff may have the summons returnable at any term of court within three months after the date thereof, and no other provision is made for the return day of a summons. Though this section 1 of the Practice Act is not in precisely the same language as former acts, yet so far as here involved, it is substantially the same. The law terms of the County Court of Woodford county are held in October, February and June, and no summons issued by the County Court of that county in October on the law side thereof could legally be made returnable in the following October.

The defendant in error argues that this question should have been raised by a plea to the jurisdiction of the court, having certain formal characteristics not found in this written motion. In McNab v. Bennett, 66 Ill. 157, it was held that motions to dismiss which assume the office of a plea in abatement will not be entertained unless the objection appears upon the face of the papers. In Greer v. Young, 120 Ill. 184, in discussing this subject, the court said the rule recognized by repeated decisions and in strict accord with the common-law practice is: “ That any defect in the writ, its service or return, which is apparent from an inspection of the record, may. properly be taken advantage of by motion, but where the objection is founded on extrinsic facts, the matter must be pleaded in abatement, so that an issue may be made thereon, and tried, if desired, by a jury, like any other issue of fact.” In Willard v. Zehr, 215 Ill. 148, the same question was decided in the same way and in substantially the same language. The defect here appears from an inspection of the summons, which is a part of the record. It therefore could be taken advantage of by motion.

It follows that the motion should have been granted and the summons should have been quashed. In some of the earlier cases above cited, it seems to be indicated that the suit should be dismissed .and the plaintiff not permitted to take out another summons in the same case, but in Ladies of the Maccabees v. Harrington, 227 Ill. 511, where it was held that the summons had been improperly issued and that its service conferred no jurisdiction, as originally decided, the judgment was merely reversed; but upon a rehearing the cause was remanded to enable the plaintiffs to take such steps as they might desire to acquire jurisdiction of the appellant ; and we are of opinion that we should follow that course here. There is additional reason for so holding. Plaintiff’s attorneys filed a praecipe for a summons which was addressed to the proper term, and the fault seems to have been that of the clerk of the County Court and not of the plaintiff. Under section 18 of the Fees and Salaries Act (J. & A. 5619), the fees of the clerk of the County Court in counties of the class of which Woodford belongs are the same as allowed the circuit clerk, and by another provision in'the same section can be collected in advance except in criminal cases; and under section 14 of said Act (J. & A. 5615), the fees of the circuit clerk for bringing such a case as this are eight dollars, and are required to be paid in advance. We may properly assume that such fee was here paid in advance by the plaintiff. He ought not to be deprived of the benefit of the payment and required to commence a new action when the fault was that of the clerk and not of the plaintiff or his attorneys. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mi. Justice Dibell

license: Public Domain

text:
    Jeannette E. Lewis, Administratrix, Appellant, v. New Amsterdam Casualty Company, Appellee.
    Gen. No. 6,281.
    (Not to be reported in full.)
    Appeal from the County Court of Peoria county; the Hon. Chester P. Babnett, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action by Jeannette E. Lewis, as administratrix of the estate of Thomas B. Lewis, deceased, plaintiff, against New Amsterdam Casualty Company, defendant, to recover on a policy of health and life insurance. For a judgment for defendant upon a directed verdict, plaintiff appeals.
    A health and life insurance policy was issued by defendant to Thomas B. Lewis on June 29, 1914. Lewis was taken ill in August, 1914, and died on March 16, 1915. The policy provided for sick benefits of $25 per week. No sick benefits were paid. There was an appropriate declaration upon the policy. Certain pleas were filed, to which a demurrer was sustained, and certain other pleas were then filed upon which issue was joined. The pleas were each in bar, except as to $19.73 tender made before suit. The first plea was the qualified general issue. The remaining pleas were that the application was made a part of the policy, and that the policy was issued upon the consideration of the premium and the statements in the application, and various statements in the application as to the good health of Lewis were denied. Special replications were filed to the special pleas, and issues were joined upon said replications.
    The parties lived in Peoria. George Reagan was agent of defendant at Peoria, and this policy was issued from his office upon an application brought to him by C. K. Gerdes, who was also a life insurance agent. Lewis applied to Gerdes for health and life insurance, and Gerdes applied to Eeagan. Apparently Gerdes prepared a first draft of an application and this application, which was granted, was in fact written, so far as the typewritten parts were concerned (which were the ones that it was claimed were untrue), in Eeagan’s office and by his stenographer, by Eeagan’s direction, and delivered to Gerdes. It was claimed that this application was fraudulent. Gerdes signed Lewis ’ name to the application. Lewis never saw it. Gerdes testified that he considered himself authorized to sign Lewis’ name to it. Gerdes testified that he took the statements as to the condition of health of Lewis from applications which Lewis had made to him some years before. Gerdes denied any knowledge of the facts concerning Lewis’ condition of health which tended to make this application untrue. The application was untrue. When plaintiff sought to show that Gerdes was in fact acting for defendant and had frequently acted for defendant before, the court sustained objections to the questions by which it was sought to prove the connection between Gerdes and defendant. He was allowed to state that he had acted for defendant before, but that answer was then excluded. The proof showed that Gerdes did not receive any pay from Lewis for obtaining this insurance, but that Eeagan was entitled to a certain commission as between him and defendant, and that Eeagan paid a part of that commission to Gerdes as his compensation for the work. Defendant introduced in evidence a letter from the superintendent of defendant to Lewis, dated February 1, 1915, notifying him that the company had canceled this policy, and that they inclosed therewith their check for $62.13, in full of the premium which Lewis had paid and interest to that date, and also a registered return receipt admitting the receipt of this letter of February 1st, which was signed “Thomas B. Lewis per G. C. Lewis,” Objection was made to the competency of this evidence, and that objection was overruled. There was no proof who G-. C. Lewis was, nor that he or she had any authority to sign the name of Thomas B. Lewis to that receipt nor that Thomas B. Lewis ever did receive that letter.
    Abstract of the Decision.
    1. Insurance, § 639

      —when evidence erroneously excluded. In an action on a health and life insurance policy, where the defense was that the application was fraudulent, and it appeared that the application was made out by a third person, who was a life insurance agent, from statements as to the condition of health of the applicant made years before upon making application to such third person for insurance, and it was signed by such third person without the applicant seeing it, and delivered to defendant’s agent, held that evidence tending to show that such third person was acting for the insurance company and had frequently so acted before was. erroneously excluded.
    2. Evidence, § 304*—when insufficient foundation laid for admission of documentary evidence. A letter and a registered return receipt signed for the receiver of the letter by another are inadmissible in evidence until the agency of the signer is established, or the fact that the letter did in fact reach the person for whom it was intended.
    John B. Kjng and Leo Gr. Hana, for appellant.
    Stevens, Milleb & Elliott, for appellee.

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

   Mi. Justice Dibell

delivered the opinion of the court.


author: Mr. Justice Dibell

text:
    Ida M. Tindall, Appellee, v. Chicago & Northwestern Railway Company, Appellant.
    Gen. No. 6,288.
    1. Appeal and error, § 810

      —what MU of exceptions must contain. Affidavits not made a part of the bill of exceptions cannot be considered on appeal though inserted in the record by the clerk and certified by him to be on file in the case.
    2. Appeal and error, § 798*—what MU of exceptions must contain. Error assigned on appeal on a ruling of the trial court permitting the plaintiff to amend a count in violation of an alleged agreement not to do so, made between counsel for the parties during the trial, cannot be considered where the bill of exceptions does not show that any such agreement was made or that anything was said or done in reliance thereon.
    3. Appeal and error, § 842

      —when certificate of trial judge as to facts in affidavit necessary. Though an affidavit as to what occurred in open court during the trial of a case be embodied in the bill of exceptions on appeal as part of the showing made upon a motion for a new trial, it cannot be considered on appeal unless the facts as therein stated are vouched for by the certificate of the trial judge.
    4. Appeal and error, § 838*—how trial judge may refresh recollection for purpose of certifying to Mil of exceptions, if a trial judge does not remember what occurred in the trial of a case before him he may, for the purpose of refreshing his recollection, have the notes of the reporter read to him, or call witnesses or jurors to testify, or receive affidavits as to such matters in order to enable him to properly certify to the bill of exceptions.
    5. Appeal and error, § 1339*—what presumed on review of ruling denying motion for new trial. If after the filing of an affidavit, as to matters occurring at the trial of a case, as part of the showing upon which a motion for a new trial is based, the judge denies the motion, it will be presumed, on reviewing such ruling, that he knew the statements in the affidavit were untrue, or that their effect was obviated by other things which to his knowledge occurred on such trial.
    6. New trial, § 61*—when not granted on ground of surprise. Where on appeal a defendant claimed that, as a result of the trial court permitting the plaintiff to amend a count in her declaration, he was taken by surprise, but it appeared that he had made no request to the trial court for time to secure other witnesses nor asked for a continuance, and the matter set out in the amended count had already been thoroughly gone into, and an affidavit relied upon as the basis for a motion for a new trial did not state that the defendant had found any witnesses whom it would or could have produced had the amendment been made sooner, nor name any witnesses whom it could produce if a new trial were granted, and the amendment was but an enlargement of that which was sufficiently stated in the count before it was amended, held the allowance of such amendment and the denial of a new trial were not error.
    7. Damages, § 112

      —when verdict for personal injuries to woman not excessive. A verdict of $7,000 awarded a female art demonstrator, forty-eight years old, earning $140 per month, her traveling and hotel expenses being allowed her, for injuries consisting principally of partial ankylosis of- the right shoulder, which prevented her from following her occupation, held not excessive.
    8. Cashiers, § 476*—when evidence insufficient to show that passenger was habitual litigant. Evidence in an action for personal injuries against a railroad company, held not to show that the plaintiff was engaged in the business of being injured, on railways.
    9. Evidence, § 148*—when exhibition of injured member not error. On the trial of an action for personal injuries, consisting in part of partial ankylosis of the shoulder, held that allowing the witness to hold up her arm to demonstrate the extent to which freedom of movement had been impaired was not error.
    10. Appeal and error, § 1625*—when error in sustaining objection to admission of evidence cured. Objection to a question addressed to a physician, who had treated the plaintiff in a personal injury action, as to how much he charged her, held improperly sustained where followed by a question as to whether the amount charged was the usual and customary charge for such service.
    11. Trial, § 91*—when necessary that objections to evidence be specific. A general objection to a nonresponsive answer is not a sufficient basis on which to assign as error the overruling thereof, as the nonresponsiveness of the answer should be specifically pointed out.
    12. Appeal and error, § 1625*—how error in improperly sustaining objection to question cured. Allowing a nonresponsive answer, not properly objected to, which was responsive to a prior question, objection to which was improperly sustained to stand, held equivalent to a change of the ruling sustaining such objection and to cure the error therein.
    13. Appeal and error, § 1712*—when errors not argued in brief

      waived,. Errors in the record not argued in the opening brief on appeal are thereby waived and cannot be availed of by the appellant.
    14. Instructions, § 159

      —how considered. Instructions are to be considered as a series, and vagueness of meaning or doubt as to one instruction may be cured by others.
    15. Appeal and error, § 1543*—when instruction on credibility of witnesses not reversibly erroneous. An instruction as to determining the credibility of witnesses whereby the jury were allowed to consider all “the surrounding circumstances appearing on the trial,” held not reversible error in view of other instructions given.
    Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the April term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed August 10, 1916.
    John A. Bussell, for appellant.
    Snapp, Heise & Snapp, for appellee.

      See Illinois Notes Digest, Vola. 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.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Miss Ida M. Tindall was a passenger in a sleeping car on a Chicago & Northwestern Bailway train from Duluth to Madison, Wisconsin, and claims that she was there improperly caused and permitted to alight from said car in the nighttime in the yards some distance from the station of the railway company at a place insufficiently lighted and in a place to which she was a stranger and without information how to reach the station, and that in seeking to find her way out she stepped into a depression and was severely jarred. She claims that she was carrying a heavy suit case and that the shoulder of the arm with which she was carrying this suit case was injured, and that said injury became permanent and deprived her of the ability to perform the lucrative employment which she then had. She sued the railway company and the Pullman company. She filed several declarations. There was a jury trial. At the close of the plaintiff’s evidence, the jury, by direction of the court, returned a verdict finding the Pullman company not guilty. The case finally went to the jury against the railway company upon an additional count as amended. This count, after suitable allegations charging the operation of the railroad and the relation of carrier and passenger, and the duty of the railway company to its passengers, charged that the company negligently failed to give the plaintiff timely notice of the approach of the train to the station at Madison, and reasonable time to prepare to leave said train and sleeping ear at the station with convenience and safety; that plaintiff was therefore unable to leave said train and car at said station and was compelled to remain in said car until it was moved by the railway company from said station at the place appointed for passengers to alight to another part of the yards in the station grounds and detached from said train; and that defendant “negligently permitted and invited plaintiff to alight from said sleeping car at a place which was dark and insufficiently lighted”; and that by reason thereof and through such negligence of defendant, plaintiff, while in the exercise of due care, “was invited, permitted and directed to, and did, alight in the nighttime and while it was dark from the said sleeping car in the yards of said railway company” at a great distance from the station, and that while plaintiff, who was a stranger to the surrounding conditions, was proceeding with due care and caution by the best apparent route from said car in the nighttime in the darkness, over and through the tracks and yards of the company to the station, carrying her hand baggage, she stumbled and fell- over some obstacle or into some hole or depression, the precise nature of which, on account of the darkness, is to plaintiff unknown, and she was caused to lurch or was thrown and wrenched or jerked with great force, and greatly strained, bruised and hurt, and was permanently injured in her body, arm and nervous system, and suffered great pain, and was prevented from attending to her business and affairs, and lost great gains and profits which she otherwise would have acquired. Plaintiff had a verdict for $7,000. Motions by the railroad company for a new trial and in arrest of judgment were denied. Plaintiff had judgment on the verdict, and the railway company prosecutes this appeal.

At the close of all the evidence appellee, by leave of court, amended the additional count so as to state more definitely than before that the place which the count originally said was dark was also insufficiently lighted. Appellant contends in its brief that at the close of the plaintiff’s evidence, certain things were said by counsel for the respective parties and by the court concerning this additional count and the charges therein which amounted to a contract by appellee that she would not amend said additional count; and that the amendment so permitted at the close of all the evidence was a violation of that agreement, took appellant by surprise and was reversible error. This position is entirely based upon the statements contained in an affidavit of counsel for appellant contained in between seven and eight printed pages of the abstract. There are two reasons why this affidavit cannot be considered, and a third reason why it cannot prevail: (1) This affidavit is not contained in the bill of exceptions. In a common-law record, affidavits on file can only be brought to the attention of a reviewing court by being embodied in a bill of exceptions. The clerk of the court has no authority to insert in that part of the record kept by him any affidavit or other paper on file, excepting the pleadings and the like which are of themselves a part of a common-law record. The fact that the clerk inserts an affidavit or other paper and certifies that it is on file in the case, or that it was filed on a certain date, does not make that affidavit or paper a part of the record which the reviewing court can consider. The rule is the same, to a large extent, in chancery. This has been held in a long line of decisions of which the following are examples: Franey v. True, 26 Ill. 184; Schlump v. Reidersdorf, 28 Ill. 68; Heacock v. Hosmer, 109 Ill. 245; Lange v. Heyer, 195 Ill. 420; DuQuoin Water-Works Co. v. Parks, 207 Ill. 46; Bellinger v. Barnes, 223 Ill. 121; People v. Donaldson, 255 Ill. 19; People v. Taxman, 186 Ill. App. 348. Not only is this affidavit not contained in the bill of exceptions, hut the- bill of exceptions does not show that at the close of the plaintiff’s case or at any other time, any such conversation as is alleged was held between court and the counsel for the respective parties, or that anything was said or done upon the subject of relying upon this additional count as it then stood. The record, therefore, does not present at all the question so elaborately discussed.

(2) If the affidavit had been embodied in the bill of exceptions as a part of the showing made upon the motion for a new trial, it cannot be considered by this court. That which occurred in the presence of the court at the trial cannot be preserved for review by affidavit. What is said and done by the trial judge and what occurs in open court in his presence is within his knowledge and must be recited in a bill of exceptions vouched for by his certificate. If a defeated party could be permitted to make such matters a part of the record by ex parte affidavits, then on a motion for a new trial affidavits might be filed to show what rulings the court made upon the evidence and the instructions. If a trial judge does not remember what occurred he may refresh his recollection by having the notes of the reporter read to him, Or by recalling witnesses or jurors, or he may, of his own volition, receive affidavits; but when his recollection has been refreshed it is he who must certify to the facts, and such facts can only be reviewed upon his certificate as to what occurred. If after the filing of such an affidavit for a new trial the court denies the motion, it will be presumed in support of the action of the court that the trial judge knew that the statements in the affidavit of what occurred in open court were untrue, or that their effect was obviated by other things which occurred in open court to the knowledge of the trial judge. Among the many cases in which this rule has been announced are Mayes v. People, 106 Ill. 306; Peyton v. Village of Morgan Park, 172 Ill. 102; Deel v. Heiligenstein, 244 Ill. 239; People v. Strauch, 247 Ill. 220. The contents of the affidavit referred to in the case last cited more fully appear in the opinion of the Appellate Court in the same case, 153 Ill. App. 544. This bill of exceptions only shows that at the close of all the evidence appellee asked and obtained leave to make the amendment over the objection of appellant. The court does not recite anywhere in the bill of exceptions the things upon which the appellant relies to make it error to permit the amendment.

(3) The statute permits the amendment and appellee had a right to make it. If appellant was thereby taken by surprise and desired to obtain other witnesses from Madison on the subject of light, it should have asked for time to do so, or for a continuance. It is obvious from the evidence in the record that appellant had very thoroughly gone into the subject of the lighting at that station and in its yards. It did not ask for either a postponement or a continuance. This cause was tried in May, 1915. This affidavit was sworn to on July 12, 1915, but was not filed until December 29, 1915. It does not state that appellant found any witnesses whom it would or could have produced if the amendment had been made sooner. It does not name any other witness whom it could produce if the new trial were granted because the amendment was allowed that late. It is obvious that appellant was not deprived of any proof which it could have presented. Moreover, the amendment was but an enlargement of that which was already sufficiently stated in the additional count.

The proofs tend to show the following facts: On the evening of February 5,1914, appellee left Duluth, Minnesota, on a trip to Lancaster, Wisconsin. Her route required her to change cars at Madison, Wisconsin. She took the Duluth Limited, a train running from Duluth to Chicago through Madison. She had a berth in what was called the Milwaukee sleeper, a car which was to be detached from that train at Madison and proceed from thence to Milwaukee. She gave orders to the porter to call her thirty-five minutes before the train would reach Madison, so that she would have time to dress before the train reached the station. She testified that it usually took her from twenty-five to thirty minutes to dress in a sleeper.' The train was due to be at Madison at 4:25 a. m. of February 6th. It reached there two minutes late. The porter called appellee shortly before the train reached the station. His excuse for this was that this Milwaukee sleeper did not immediately leave Madison but remained at that city until about 5:00 a. m., so that after the train reached Madison she had ample time to dress. Appellee knew that this sleeper was to be detached from the Duluth Limited at Madison, but she did not know that it remained so long a time at Madison. It is claimed that on cross-examination she testified that she did know that fact, but an examination of her entire evidence satisfies us that she only means that she learned that fact shortly before she left the car, and after she had dressed. Appellee was evidently angry at the porter for not having called her as directed, and she dressed with haste. According to her evidence the porter was sulky and impertinent in reply to her question why he did not call her as directed. The day coaches were behind the sleepers, and the Milwaukee was the rear sleeper. The course pursued at Madison customarily and on this occasion was this: After the day passengers had alighted from the day cars an engine was attached to the rear of the train and took the day coaches and the Milwaukee sleeper back into the yards. The train had come in on track two, which was nearest the station. The train was taken north to certain crossovers which are outside of the plat in evidence, and made to cross over tracks three and four, and the sleeper was placed on track five, north of Blount street. The course of the railroad at this station was southwest and northeast. Blair street was southwest of the station, and the station faced it. There was a slight curve in the main tracks at the station. Blount street was the next street north of the station. There were train sheds, called umbrella sheds, which ran from Blair street to Blount street, and ended there. Tracks three, four and five ended northeast of the station. When the Milwaukee sleeper had been placed on track five, the switch engine took the day cars back over the same route and attached them again to the end of the Duluth Limited, which usually left for Chicago about 4:35 a. m., or ten minutes after its arrival.' It is said that appellee testified she left the car at 4:30, but an examination of her entire evidence shows that what she means is that it must have been at least 4:30, because she could not possibly have dressed in any shorter time. The train dispatcher’s sheet shows that the Duluth Limited left at 4:37 that morning, and the porter testified that it was leaving when appellee got off the sleeper. There was for each track a brick platform rising some twelve or eighteen inches above the track on which the train traveled. There were many electric lights in the roof of each umbrella train shed. These lights were controlled by switches near the station in charge of the night station master. It was his business and the custom to turn on the lights for a particular platform only just before a train arrived at that platform to discharge passengers. As soon as the train started to leave the station it was the duty and custom to turn off the lights in that train shed. The other train sheds were left unlighted. There were incandescent lights over the various doors of the depot. The lights fronting Blair street could not be seen from track five where the sleeper was, which was northeast of the depot perhaps six hundred feet or more. One witness testified that on that occasion this car was parked forty feet beyond Blount street, others sixty feet, and another one one hundred and sixty feet. The brick platforms extended that far, and there were some lights on iron posts on each platform beyond the train shed, but those lights were also controlled by the same switches referred to. There was a light over the express door, another over the baggage door, and another over the doors to the station that were in the direction where this car was. Those lights were called owl lights, were of sixty candle power, and were only intended to aid persons at the station'to find the doors. The waiting room at the station was two stories high and had glass on the side towards where this car was, and it had eight clusters of lights, four of which were left lighted in the nighttime when a train was not there. Appellee had been through Madison on this road before, but not in the nighttime, and she had never been in those yards where this car was parked. When she got off this car the station was southwest of her, the town was to the northwest and the yards extended on to the northeast and east for a long distance, and there were in them many switch lights then burning. One witness said that twenty-five or thirty switch lights were visible from that point. The undisputed proof is that it was a very foggy morning. The porter of the sleeping car testified once that it was unusually dark, and another time that it was not any darker than usual. Appellee testified that she asked the porter the direction to the depot after she had alighted from the car, and that, so far as she recollects, he made no reply, but instantly got upon the car and went into it and slammed the door. He testified that he pointed to her the direction. She did not know where she was and she did not know in which direction the station was, and she started off towards some lights which she saw, but after going a little ways thought she was wrong and went in another direction and was entirely confused. She saw, a little distance away, an engineer oiling his engine and holding a lighted torch. She determined to go to him and ask her way. Just then he went around to the other side of his engine and thus deprived her of the light of his torch. As she went she stepped into some depression which we believe to have been the depression where the track was below the brick platform. She was carrying a heavy suit case. She carried no trunk in her travels and therefore had in her suit case her wearing apparel, and the books and papers which she used in the business in which she was engaged. She plunged forward several times, but did not fall. Soon thereafter she noticed pain in her shoulder which continued to increase as hereafter stated. The engineer came back to that side of the engine and directed her how to reach the station down the brick platform. She went to the station, asked the ticket agent to whom she should make complaint of the porter, and was directed to another station man on duty, and told him she wanted to complain of the porter for his insolence and for not calling, her as directed, and then she went into the ladies ’ dressing room. This officer says he asked her if she was hurt and that she said no. She denies that she was asked that question or made that answer. She suffered pain while there. She took the train for Lancaster about 8 -.00 a. m. She did but little at Lancaster on account of the pain she suffered. The next day, which was February 7th, she went back to Madison, went to a hotel and obtained the address of a lady osteopath and went to her for treatment. She asked to have an examination made to see if her shoulder was not out of joint. She returned to the hotel, walked the floor much of the following night, sent for the housekeeper for relief during the night and did have some appliances to relieve her pain then, and she took the Duluth Limited on the morning of February 8th for Chicago. When she arrived at the depot in Chicago she went to the rest room and complained to the nurse of her suffering and the nurse sent for the company doctor and the company detective and they examined her shoulder and did not find it discolored or inflamed. About the middle of the day she went to Joliet. She had a sister, Alice P. Tindall, who was private secretary to the warden of. the Illinois State Penitentiary and who had a room in the woman’s prison there. Appellee went to that sister and she sent for Dr. Grant Houston, a practicing physician of Joliet, and by him appellee was thereafter treated for a considerable time. He found a discoloration of the shoulder which reached two-thirds of the way to the elbow, and according to other evidence later reached to the wrist. He found inflammation in the shoulder and took her to a hospital for examination and treatment. The final result was a partial ankylosis of the shoulder joint, which reduced the ability of Miss Tindall to move heir arm to twenty-five to thirty per cent, of its normal action. At one time in order to overcome any intentional or unintentional resistance by the patient, Dr. Houston put appellee under an anaesthetic, and then did all that he could do to move the arm, and could produce no greater movement than above stated. One of the examinations was by Dr. Houston and a Dr. Hopkins, a medical man who was there representing appellant. Appellant did not call Dr. Hopkins as a witness. Appellant in its brief here has accused appellee of being a malingerer, but not only is there no evidence whatever to that effect, but the absence of Dr. Hopkins from the witness stand, without any explanation, deprives that claim of any right to - serious consideration.

Appellant called the osteopath, the housekeeper of the hotel at Madison, the man who met appellee in the station that morning, those who met appellee in the Chicago station on the 8th, and in the main they fully corroborated appellee as to the fact that she claimed to be suffering pain in that shoulder. There were some slight discrepancies testified to by them. The osteopath when examined in chief testified that appellee told her that she hurt her shoulder by being jammed against the corner of an omnibus. On cross-examination she admitted that she, herself, had had an experience" of that kind and that she very likely repeated the story to appellee that morning. Another of these witnesses had been told by appellee of her being hurt, and it was the recollection of that witness that appellee said she was hurt after she talked with the engineer, whereas appellee testified that it was while she was trying to reach the engineer and after she had seen him. These supposed contradictions by witnesses whose attention was not again directed to the matter for several months did not in the minds of the jury weaken the testimony of appellee, and do not tend to show that the main features of her narrative are untrue.

Appellant contends many times in its brief that there is not a word of testimony to show whether it was the right or the left shoulder of appellee which was injured, and that if it was not the shoulder used by her in her employment hereafter described, then she could not have been seriously injured, and the verdict would be excessive. On slightly examining the evidence on this subject we have found five "witnesses who testified that it was her right shoulder and her right arm of which she complained, and some of those witnesses were called by appellant. Appellee testified that she had never received any violent injury, or any injury of any kind to her right arm or her right shoulder, before the accident involved in this case. Appellee also testified that she was right-handed and could not do her work with her left hand. It is manifest that there were references to the arm in the presence of the jury which indicated which arm it was, that could not well be incorporated in the bill of exceptions. For instance, in the presence of the jury appellee held up an arm and showed how far she could raise it, and the jury knew, therefore, whether it was the right or the left arm.

Appellant contends that on the question whether there was sufficient light at the place where appellee was injured, her testimony stands alone, and is disputed by thirteen witnesses called by appellant, and that the jury cannot be permitted to decide in favor of one and against so many other witnesses. We do not find that to be the state of the record. The material question was whether the place was sufficiently lighted at the time that appellee was hurt. Most of the witnesses to whom appellant refers were not at that station that night and did not know what lights were burning and what were turned off at the time in question, and did not know whether a heavy fog was prevailing. They did prove that when all the platform lights were burning, the place was sufficiently lighted in ordinary weather. They did prove that they were familiar with the station and the yards, and had often been through the yards at this place in the nighttime, and Imowing where they were and what the proper route to the station was, were able at any time when they were there to see their way with sufficient clearness to avoid injury. Appellee testified there was a heavy fog at that time. No one denies it. Appellee testified that she saw nothing by which she could tell where the station was or what direction she ought to take. The porter testified that the Duluth Limited was leaving the station as appellee left the oar. It was the custom for the station master to turn off the platform lights as soon as passenger trains started. The station master had no recollection when he turned off these lights on this particular night, and the jury might fairly infer that they were turned off as soon as the train started to leave, and that those platform lights were not burning when appellee started to leave the car. If they were not, there were no lights then burning at the station except the owl lights over about four or five doors, not intended to cast any light into the yards at all, and the lights inside the waiting room, and there were twenty-five or thirty switch lights burning in other directions and visible to appellee after she got off the car. After the engineer had directed her where to go to reach the station, she was able to find her way, but there was no preponderance of evidence that at that time, before she obtained that information from the engineer, she could see where to go; nor was there any evidence that the depressions where the tracks were below the sides of the platforms were not in darkness. Between appellee and.the station were an iron fence and numerous upright posts supporting the train sheds, and supporting the platform lights when burning. There is no doubt but that appellant did prove by a strong array of testimony that this is a well-built station, and that when all the lights were burning it was exceedingly well lighted; but there is no preponderance of evidence that a woman left in the yards in the nighttime, on a foggy night after the platform lights had all been turned off, could see to leave a car and find her way safely to a station of whose situation she was entirely ignorant. The jury believed appellee.

Appellee was about forty-eight years old when this injury was received. She had been a teacher all her adult life. After teaching in various positions in private and public schools mathematics and other studies, she went to perfect herself in the study of art in two eastern institutions, and thereafter became a teacher and demonstrator of art. The Prang Company publishes, introduces and sells a system of art instruction for the public schools. Wherever a school board buys the Prang appliances arid installs the Prang system, the Prang Company sends a demonstrator to that school, who, upon the blackboard and upon large sheets of paper, instructs the teachers of those schools how to give art lessons to the pupils according to the Prang method. Appellee became the circuit instructor of the Prang Company for the States of Illinois, Wisconsin and Iowa, at a salary of $140 per month for ten months in the year, and she spent the other two months in conducting a similar art school at the University of Colorado. Besides the salary of $140 per month she was paid her hotel and traveling expenses, and as she was constantly on the road working for the Prang Company during ten months of the year, she practically received what would be equivalent to her board and lodging besides $140 per month. Prior to this injury the Prang Company had entered into an agreement to pay her during the next year $166.66 per month be-, sides her traveling expenses and hotel bills for ten months in that year. This work required the free use of her right arm and shoulder. After she had received all the benefit she could obtain from medical treatment she found herself entirely unable to do the work on account of this partial ankylosis of her right shoulder, and she was obliged to leave that employment. She undoubtedly can teach, at much lower wages, portions of the common school system, but she has lost by thi« injury the entire benefit of the higher training which at considerable time and expense she had obtained in these eastern institutions, and she has lost this lucrative salary and her expenses. While $7,000 is a large sum, yet it is evident that it would not take many years to cover that verdict with the actual pecuniary loss she has sustained by the reduction of her earning power. Besides this, she has suffered much and long continued pain. We are unable to say that the damages are excessive.

The defense proved that a few months before this injury appellee was in a wreck on the Illinois Central Railway, and that she had correspondence with the authorities of that road concerning the injury which she received. Apparently it is sought to create the impression that appellee was engaged in the business of being injured on railways. An examination of all the evidence on that subject shows that she was in a passenger car which was in a wreck; that she received some injury to her back; that she caught a severe cold because the passengers were without heat for many hours in a cold part of the year; but that she did not make a claim against the company; but, on the contrary, the claim agent of the road sought her out persistently and urged her to settle for $100, and that the railroad sent a surgeon, who was a friend of her family and knew her well and had been her family physician, to examine her as far as he could without her knowing that she was under examination, and that she desired not to settle until she found out whether she was seriously injured but did not wish to put the matter in the hands of a lawyer, and finally accepted $125 which the railroad company- at last offered. It is obvious that it was the railroad company that sought her persistently to settle with her, and evidently the railroad company feared that she might go to some lawyer and it might prove more serious for it. It was positively proven that there was no injury to her shoulder and arm in that connection. There was nothing to justify the jury in supposing that the injuries of which sko now complains were in any respect attributable to that accident.

At the request of appellee’s counsel and over the objection of the appellant, appellee, while a witness, was requested to raise her arm as high as she could, and she did stand up and she did raise her arm. It is contended that this was erroneous. We are of opinion that the ruling of the court in permitting this to be done was sustained by the principles announced and authorities cited in Springer v. City of Chicago, 135 Ill. 552; City of Lanark v. Dougherty, 153 Ill. 163; Swift & Co. v. Rutkowski, 182 Ill. 18; Chicago Terminal Transfer R. Co. v. Kotoski, 199 Ill. 383; Chicago & A. Ry. Co. v. Walker, 217 Ill. 605, and by several of the Appellate Courts, including this court. In Prichard v. Moore, 75 Ill. App. 553, we said: “It was not error for plaintiff while on the witness stand to show to the jury to what extent he could move his arm. That demonstration simply made more plain to the jury that which is usually described in words.” We may add that in this case it was also described by witnesses in words.

It is contended that the court erred in admitting testimony as to the amount of Dr. Houston’s bill. The matter is not fully set forth in the abstract. The record, page 132, is as follows:

“Mr. Heise: You had no contract with Miss Tindall in regard to your professional services, in advance ?

“A. No, sir.

“Q. Do you recollect now how much you charged her?

"A. Yes, sir.

“Q. How much was it?

“Mr. Bussell: The question is objected to.

‘ ‘ The Court: Objection sustained.

“Mr. Heise: Was the charge you made the usual, customary and going charge for services of that kind in Joliet? .

“Mr. Bussell: The question is objected to.

‘ The Court: Let him answer.

“(To which ruling of the court, counsel for defendant, the Chicago and North Western Bailway Company, then and there duly excepted.)

“A. Forty-one dollars.

“Mr. Bussell: I object to the answer, and move that it be stricken out.

“The Court: Motion denied; let it stand.

“(To which ruling of the court, counsel for defendant, the Chicago and North Western Bailway Company, then and there duly excepted.)”

Appellee argues that in making up the bill of exceptions, something was accidently omitted which escaped the attention of counsel for appellee before the bill of exceptions was signed. We, however, must accept the bill of exceptions as it reads as being correct, in the absence of any action in the court below to have it corrected. We are of opinion that to the question how much Dr. Houston charged appellee for his services in treating her for this injury, the objection made should have been overruled, under Schmitt v. Kurrus, 234 Ill. 578. The answer “Forty-one dollars” to the question whether the charge made was the usual customary and going charge for services of that kind in Joliet was obviously not responsive to the question, but that objection was not made to it nor was the motion to strike it out based upon that ground, but only upon general grounds. If attention had been called to the fact that the answer was not responsive to the last question, it could not have failed to be sustained. That specific objection not having been made when it could have been obviated, the general objection will not avail, as stated in Rich v. Trustees of Schools, 158 Ill. 242, and in other cases, followed by Merchants’ & Farmers’ State Bank of Sullivan v. Dawdy, 230 Ill. 199. The answer was, of course, to the first question; and as it must have been obvious to the court that it was not an answer to the second quesion, but was an answer to the first, the action of the court in permitting the answer to stand may be considered as equivalent to a change of the ruling as to the first question, and holding it competent. In that part of the record above quoted, appellant has no objection which is tenable. The court ruled correctly. The specific objection which would have caused the matter to be corrected was not made. Appellee had a right to prove what the charge was, and that is all that there appears. The seventeenth instruction given at the request of the plaintiff permitted recovery for moneys necessarily expended or become liable for doctors’ bills, if any, while being treated for such injuries. Appellant might have raised the question upon the giving of that instruction, but while it has attacked other instructions in its brief and argument, it has not questioned that instruction. The rule is familiar and does not require citing of authorities that any error in the record not argued in the opening brief is thereby waived and cannot be availed of by the appellant. So any error in giving that instruction is waived. We do not feel authorized to reverse the judgment because of this peculiar condition of the bill of exceptions as to the testimony on that subject.

Complaint is made of the ninth instruction given at the request of appellee. It states that it is the duty of a carrier of passengers to keep the platforms used in discharging passengers and all passageways leading to and from said places in a reasonably safe condition for that purpose, and if a violation of that duty entailed injury upon passengers without the fault of the latter, the carrier is answerable in damages. It is not denied but that this is a correct statement of the law, but it is argued that it left the jury in uncertainty as to what the question was on which they were to pass. This instruction did not direct a verdict and the instructions are to be considered as a series. If there was any possible clouding of the issues under that instruction it was removed by various other instructions given. The issues the jury were to try were stated in instructions given at the request of defendant, Nos. 11, 12 and 13, and others, and the matter of proper light was therein specifically and definitely pointed out. Moreover, in No. 14, given at the request of appellant, reference is made to “acts of negligence” so that the jury could clearly get the idea from that instruction that more than one matter was relied upon as negligence in this case, and appellant cannot complain of that which it procured by its instruction. Complaint is made of the first instruction given for appellee, because in discussing the question of the credibility of witnesses, the jury were allowed by it to consider all “the surrounding circumstances appearing on the trial.” This instruction was criticised by us as of doubtful propriety in Ames v. Thren, 136 Ill. App. 568. It is taken word for word from North Chicago St. R. Co. v. Wellner, 206 Ill. 272, and the instruction is there approved, though these words here complained of were not there discussed. The instruction has been approved by the Appellate Court, first district, in Hopp v. Chicago City Ry. Co., 170 Ill. App. 72. Appellant’s fourteenth instruction told the jury that appellee must prove one or more of the acts of negligence charged against the appellant in her declaration by a preponderance of all the evidence in the case, and with that cautionary instruction in the record we are of opinion that we ought not to reverse because of the language above quoted from the first instruction. It is also worthy of note that in the second instruction given at the request of appellee, the expression used was “from all the evidence, facts and circumstances in evidence,” showing that the facts and circumstances to which the attention of the jury were called were those appearing in the proof. Complaint is made of the third instruction given at the request of appellee relating to the law where two witnesses testify just opposite to each other on a material point. It is not denied that this states the law correctly, but it is urged that there was no condition upon which to predicate such an instruction, and it is claimed that on the material questions, the evidence is that of appellee against thirteen witnesses on the opposite side. We have disposed of that contention elsewhere, but this instruction properly applies to the evidence of appellee and of the porter, who, in certain particulars already mentioned, testified in contradiction to each other. The instruction was therefore properly given. We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


text:
    Harmon Drainage District No. 2 of Lee County, Illinois, Appellant, v. Lynn P. Parker, Appellee.
    Gen. No. 6,292.
    1. Drainage, § 39

      —when interest of commissioner does not disqualify. The fact that a commissioner of a district, organized under the Farm Drainage Act (J. & A. f 4475 et seq.), was the owner of part of the land to be benefited by an improvement in favor of which he cast the deciding vote, held not to make the resolution authorizing such improvement void.
    2. Drainage, § 72*—when organization of subdistrict unnecessary. Where lands within a district organized under the Farm Drainage Act (J. &• A. U 4475 ef seq.) have not been benefited as contemplated at the time of the organization of the district, it is the duty of the commissioners to so improve the system that such lands will be benefited as originally intended, the expense thereof to be paid from the general fund of the district; and the organization of a subdistrict is not necessary.
    Appeal from the County Court of Lee county; the Hon. John B. Crabtree, Judge, presiding, Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.

      Clyde Smith, for appellant.
    Mark C. Keller and H. A. Brooks, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On October 17, 1911, at a meeting of the Drainage Commissioners of Harmon Drainage District No. 2 in Lee county, a resolution was passed reciting that certain lands in said district described in the resolution were not benefited in proportion to their classification and required additional drainage, and ordering a tile to be laid through certain lands. The motion was adopted, two of the three commissioners voting for and one against the proposition. Lynn P. Parker was one of the commissioners and one of the owners of the land to be benefited by said tile and he voted for the proposition, and without his vote it would not have been adopted. Thereafter the work was done, and the drainage district paid therefor $78.29. On December 22, 1914, said district brought suit before a justice of the peace to recover said expenditure from Lynn P. Parker. The justice gave judgment against the district and it appealed to the County Court of Lee county, where the case was tried without a jury and judgment was rendered against the district. It prosecutes this further appeal.

It is contended that by reason of interest Parker was disqualified to vote for said resolution, and it therefore was not adopted. In support of this position reliance is had upon Chase v. City of Evanston, 172 Ill. 403; Murr v. City of Naperville, 210 Ill. 371; and Vandalia Levee & Drainage Dist. v. Hutchins, 234 Ill. 31. We are of opinion that this principle does not apply to drainage districts organized under the Farm Drainage Law (J. & A. 4475 et seq.). In Scott v. People, 120 Ill. 129, speaking upon this subject, the court said; “It is next urged, that to permit the commissioners to pass upon the question of enlargement of the district would be to have it determined by an interested tribunal. To a limited extent this is true, but it does not therefore follow that the decision of the question, when made, would not be binding. In matters of mere local concern, which are of a public or quasi public character, this, in many cases, cannot be avoided without great inconvenience. It is every day’s experience for property owners in small villages to sit as jurors in corporation cases for the recovery of penalties under ordinances, and yet we presume there are few who would now question their right to do so, on the ground of interest. So township and county officers are constantly in the habit of making up and auditing their own accounts for services to the public, and no one, we presume, questions the validity of these official acts on that ground. They are, in most cases, largely ministerial, and the interest is so small and insignificant that the law does not regard it. To hold this objection good would strike at the very foundation of the whole drainage system.” In People v. Cooper, 139 Ill. 461, it was contended that certain proceedings taken by the commissioners of a farm drainage district were void because the commissioners were interested. The court there said: “It is not the rule, however, so far as we are aware, that interest as a landowner or taxpayer in a municipal or quasi municipal corporation disqualifies a person for holding an office in such municipality, or for performing any duty incident to such office, although his own personal or pecuniary interest may to some extent be affected by his action. And this must be especially true in case of drainage districts which are organized for the promotion of the private interests of the landowners within such districts. Nor are we aware that preconceived opinions or preferences of persons elected to such offices have ever been held to be a legal disqualification. On the contrary, municipal as well as other executive and ministerial officers are not unfrequently elected because of their avowed opinions or preferences in relation to public measures which are likely to come before them for their official action. And the question is not materially affected by the fact that the ministerial or executive duties which he may be called upon to perform may involve more or less of quasi judicial action, or of discretion akin to what may properly be called judicial. Doubtless such officer may, as a matter of prudence or delicacy, decline to act in a matter in which he feels a personal interest, where his official duty may be as well performed by another, but if he chooses to perform the duty himself, it cannot be said that he acts without jurisdiction, or that his act is ultra vires and therefore void.” Vandalia Levee & Drainage Dist. v. Hutchins, 234 Ill. 31, was under the Levee Act, and a distinction is there drawn between that act and the Farm Drainage Act; and Scott v. People, supra, and People v. Cooper, supra, were there referred to without disapproval. We therefore conclude that this action was not void because of the fact that Commissioner Parker owned a part of the land which was to be benefited by this action.

It is contended by appellant that if this work needed to be done, the funds of the district then in hand could not be used for that purpose, but that a subdistrict should have been organized, including the lands to be benefited by this particular drain, and they should have been assessed therefor. Section 17 of the Farm Drainage Act (J. & A. ft 4493) requires the commissioners to determine upon a system of drainage which shall provide main outlets of ample capacity for the waters of the’district, having in view the future contingencies as well as the present. Section 41 (J. & A. ÍJ4518) provides that if the commissioners shall thereafter find that by reason of error in locating or constructing the ditches, or any of them, or from any other. causes the lands of the district are not drained or protected as contemplated, or some of them receive partial or no benefit, they shall use the corporate funds of the district to carry out the original purpose, to the end that all the lands, so far as practicable, shall receive their proper and equal benefits as contemplated when the lands were classified; and that if sufficient funds are not on hand for this purpose, the commissioners shall make a new tax levy, showing that it was contemplated that if there were funds on hand, they should be used for that purpose. In Peotone & M. Union Drain. Dist. v. Adams, 61 Ill. App. 435, and 163 Ill. 428, these sections of the statute were construed and the duty of the commissioners to give such relief in a proper case was announced and enforced, and to the same effect is Langan v. Milk’s Grove Spec. Drain. Dist., 239 Ill. 430; which plainly indicates that the funds on hand are to be used to do the required work. This ditch was made to run from the lands and through the lands of W. D. Parker and Lynn P. Parker and Fred Greyer. Greyer’s lands were the nearest to the drains of the district and were slightly higher than the lands of W. D. Parker and Lynn P. Parker back of the Greyer lands, and because of the slight elevation of the Greyer land, water in times of heavy rains stood upon the Parker lands to their great detriment. When this drainage district was established and the classification of the lands was made, the land now owned by Lynn P. Parker was then owned by his father, Boardman Parker. The proof, as we under stand it, shows from appellant’s witnesses, as well as from appellee’s, that these lands were classified to give an outlet to carry off this water from the lands back of the Greyer land, but when they came to put in this improvement Boardman Parker said he did not want this outlet put in, and so it was left out, and this land did not receive the drainage which was contemplated when it was classified. After the title thereof passed to Lynn P. Parker he desired the drainage which had been intended when the lands were classified. Under the authorities above cited we are of opinion that as the lands were classified to give an outlet for this water from these lands, it became the duty of the commissioners to furnish such outlet, and they were required to use the funds of the district to establish the outlet if they had funds for that purpose. See also, French v. Bates, 185 Ill. App. 38. It was not necessary that the commissioners should establish a subdistrict for this purpose. People v. Sullivan, 238 Ill. 386. As these lands were classified to have this outlet given them, they were also assessed for this outlet, and the money had been paid by the owners of these lands which was intended to be used for the , making of this outlet.

As we hold that the resolution was lawfully adopted, and the money lawfully expended in performing the duty which the drainage district owed to these lands, it is unnecessary to consider the further question whether if this expenditure had been wrongfully made the money could be recovered in an action of assumpsit, and whether Lynn P. Parker would be liable for the whole amount, part of which was spent for the benefit of the lands of W. D. Parker. The judgment is affirmed.

Affirmed.


text:
    Dumont, Roberts & Company, Appellee, v. Alfred L. McDougal et al., Appellants.
    Gen. No. 6,293.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. John M. .Niehaus, Judge, presiding. Heard in this court at the April term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Bill in equity by Dumont, Roberts & Company, complainant, against Alfred L. McDougal et al., defendants, to foreclose an equitable lien. From a decree in favor of the complainant, defendants appeal.
    Alfred L. McDougal, being indebted to the complainant on a promissory note, in order to prevent immediate steps to collect it executed to the complainant an assignment of all interests which might thereafter accrue to him as heir, legatee or devisee of his father. Subsequently he was discharged in bankruptcy, having listed the note among his liabilities, but the complainant did not prove it against the estate.
    After the death of McDougal’s father, leaving him various legacies and devising property to him, some of which consisted of contingent interests, complainant filed a bill to enforce the lien. At the time of entry of the decree, all the property had become vested.
    I. C. Pinkney and Tichenor, Todd & Wilson, for appellants.
    Vail, Miller & Pogue, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

1. Assignments, § 4 —when estates in expectancy may be assigned. Estates in expectancy may be assigned and assignments thereof will be enforced in equity when such estates become vested, and this is so though such expectancy is made contingent by the provisions of a will.

2. Bankruptcy, § 58*—what is effect of discharge. The discharge in bankruptcy of the assignor of an estate in expectancy, subsequent to the assignment, will not defeat the right of the assignee to enforce in equity the lien created by such assignment.


text:
    Amanda Nelson, Appellee, v. Frank P. Nelson, Appellant.
    Gen. No. 6,295.
    1. Divorce, § 87*—when temporary alimony properly allowed. Where, on the hearing of a petition for alimony and suit money pending a suit for separate maintenance, it appeared that a marriage ceremony between the parties had be£n celebrated, held that such allowance was properly granted though the defendant in his answer denied the validity of such marriag'e.
    2. Marriage, § 26*—what does not constiiute prima facie case as to invalidity of marriage between divorced parties. Proof that parties domiciled in Illinois who, within one year after being divorced from their respective husband and wife, were married in another State, does not amount to making out a prima facie case that such marriage was void, in the absence of proof that the parties contracted the marriage outside the State with the intent to circumvent the Illinois statute prohibiting divorced persons from marrying within one year from the granting of the divorce.
    Appeal from the Circuit Court of Henderson county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1916.

      Certiorari denied, by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed August 10, 1916.
    Clifford W. Warner and Hartzell & Cavanagh, for appellant.

      O ’Habrás, Wood & Walker, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Amanda Nelson filed a bill of complaint against Frank P. Nelson in the Circuit Court of Henderson county and therein alleged that she was lawfully married to Frank P. Nelson on February 3, 1908, and that she left him on November 3, 1914, and she set up con- " duct of his which, if true, would entitle her to a separate maintenance, and she asked for that relief. Frank P. Nelson was served with summons. Thereafter Amanda Nelson filed a petition seeking temporary alimony and solicitor’s fees and suit money and Frank P. Nelson answered that petition, and there was a hearing, and there was an order allowing her certain sums for her support during the pendency of the suit and for solicitor’s fees and for expenses in the preparation of the cause for trial. It is conceded that Frank P. Nelson owns an equity worth about $40,000 in real estate in said Henderson county, and it is not contended that the allowance is excessive. This appeal by Frank P. Nelson is prosecuted on the sole ground that he is not liable to pay any sum whatever for this purpose.

The proofs show that prior to said marriage the parties resided in Henderson or Hancock counties, and that within one year prior to said marriage each of them was divorced from a former husband or wife in this State, and that on February 3, 1908, less than one year after said divorces were, obtained by them, they were married to each other in Kirksville, Missouri and that at some time afterwards they returned to this State. The defendant had not yet answered the bill of complaint when this order was made, but in answer to the petition for alimony he asserts that said marriage was void and therefore he is under no legal obligation to pay any alimony or suit money or attorney’s fees. There are conflicting authorities in the different States of the Union on the question whether in such a case there is a liability to pay alimony pendente lite, and these authorities pro and con are collected in a note which begins on page 387 of volume 25, L. R. A. (N. S.) The law is fixed for this State by the decision in Reifschneider v. Reifschneider, 241 Ill. 92. The discussion of this subject begins on page 98 and on p. 100 it is said: ‘ ‘ The marriage ceremony being admitted and only the legality questioned, the court was justified in allowing temporary alimony.” This is in harmony with the rule stated in 2 Am. & Eng. Encyc. of Law (2nd Ed.) 104, where it is said: “It is generally held that proof or admission of a marriage de facto presents a proper case for the allowance of alimony pendente lite, although a marriage de jure is denied.” The same doctrine is announced in 3 Am. & Eng. Encyc. of Law and Practice 125 (a work the publication of which has been suspended). In 1 Ruling Case Law 900, the general rule is thus stated: “Even though there is considerable-dispute as to whether there is a marriage de jure, an allowance of temporary alimony may nevertheless be awarded provided one de facto is established either by admission or proof.” In this case the proof shows a ceremony of marriage at Kirksville, Missouri, by a minister of the gospel. The marriage ceremony is therefore established and only the legality of that ceremony is questioned, and under the above authorities the allowance of alimony was proper. But more than that, it was not shown, even under defendant’s theory, that this marriage was invalid. It is not the holding ^ of our courts that every marriage celebrated in a foreign State by persons who have been divorced in this State within one year is void. In Wilson v. Cook, 256 Ill. 460, it was held that the intent of the Legislature was that when persons domiciled in this State, and who are subject to the provisions of the law, leave the State for the purpose of evading those provisions and go through the ceremony of marriage in another State and return to their domicile in this State, such pretended marriage will not be recognized by the courts of this State. There was no allegation or proof that these parties went to Missouri for the purpose of evading the law of this State or for the purpose of marrying and then returning to this State. For aught that appears, it may have been their intention to remain in Missouri and to become citizens of Missouri. They did return at some time, but it is not shown when. They may have lived in Missouri for years after this marriage was celebrated, with no intention then of ever returning to the State of Illinois to live. As defendant was asserting that the marriage celebrated in Missouri was void, it was for him to prove that the purpose of the parties was merely to evade the provisions of our statute and to retain their domicile in this State. It is true that the license issued in Missouri described the parties as residents of this State, but there is no proof that appellee furnished that information to the officer, nor that it was followed by their immediate return to this State. Therefore appellant failed to establish even a prima facie case that the marriage was void. The parties lived together as husband and wife for six years and nine months after this marriage, and there is no proof how much of that time was spent in Illinois, and it ought not to be presumed against this wife that this was an invalid marriage. All of the presumptions are in favor of the validity of the marriage. The order is therefore affirmed.

Affirmed.


text:
    Charles E. Farrell, Administrator, Appellee, v. Reuben Bruce, Appellant.
    Gen. No. 6,303.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stoke, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action of trover by Charles E. Farrell, administrator of the estate of John Farrell, deceased, plaintiff, against Reuben Bruce, defendant, for the alleged conversion by the defendant of certificates of deposit belonging to the intestate. From a judgment for plaintiff, defendant appeals.
    The deceased, a man eighty years of age, a few days before his death called in some of his friends and by deed and bill of sale made various dispositions of, his property, reserving to himself a life estate in a part thereof. Some certificates of deposit owned by him were at his direction brought from the bank in which he kept them and by his direction one of his friends began writing on the back assignments to Reuben Bruce, and be began signing his name to those assignments. He was in bed, and when a paper was ready for him to sign he was propped up in bed with a book placed on his knees, upon which he did the signing. He became tired and only partly wrote his signature on the fifth certificate, of which certificates there were twenty-five in all. An attendant suggested that he leave the signing of the rest until another day, and he handed to Bruce the five which he had assigned and told him with them to pay his funeral expenses and his debts and the rest should be his, and told the amount he wished paid on one debt, which he did not wish paid in full as he considered that the amount charged him was not just. He handed the remaining twenty certificates to Bruce without assigning them and told him they were his, and Bruce took and carried away all of the certificates. He advised persons there present, to whom he had deeded some of his property, to have their deeds recorded immediately. A few days later, Bruce and several others were at. deceased’s house, and the twenty certificates were produced, and assignments on the back of each to Reuben Bruce were written. Deceased appeared not strong enough to write his name. One of the parties present wrote deceased’s name to each assignment, and deceased affixed his mark to each. Shortly thereafter Bruce cashed these certificates. Deceased died eight days later.
    Abstract of the Decision.
    1. Trover and conversion, § 10

      —when trover lies. Trover by an administrator will lie for the conversion of certificates of deposit of his intestate though the defendant cashed them during the intestate’s lifetime.
    2. Trover and conversion, § 37

      —when burden on administrator to show lack of mental capacity in intestate. In an action of trover by an administrator for the conversion of certificates of deposit which had belonged to the intestate and had been assigned in writing and delivered by him to the defendant, where the plaintiff claimed that at the time of making such assignment and delivery the intestate had not sufficient mental capacity to make a valid assignment and delivery, held that the burden of proof to prove such fact was on the plaintiff.

      Glen Cameron and Sheen & Galbraith, for appellant.
    Quinn & Quinn, for appellee; Weil & Bartley, I. R. Wasson and John E. Dougherty, of counsel.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

3. Gifts, § 22*—when evidence sufficient to show mental capacity of assignor of certificates of deposit. In an action of trover for the conversion of certificates of deposit belonging to the plaintiff’s intestate and assigned and delivered by him to the defendant, evidence held to show that the intestate had sufficient mental capacity to make such assignment.

4. Gifts, § 22*—when evidence sufficient to show mental capacity to make. In an action by the administrator of the estate of a deceased person for the conversion of certificates of deposit given by intestate to defendant, proof that deceased was hateful, bitter towards his children and profane, where there was no proof that he suffered from any insane delusion, held not sufficient to support a finding that he did not have sufficient mental capacity to dispose of his property.

5. Gifts, § 22*—when valid. Where one has sufficient mental capacity to dispose of his personal property, the justness or unjustness of the disposition made thereof is immaterial on the question of its validity.

6. Appeal and ebbob, § 1413*—when verdict set aside as against preponderance of evidence.. A verdict may be set aside as against the clear preponderance of the evidence though a verdict for the same party had been rendered on a former trial.


text:
    Illinois Midland Railway Company, Appellant, v. Farmers State Bank of Newark, Illinois, Appellee.
    Gen. No. 6,314.
    1. Bills and notes, § 109

      —when order not negotiable. An order payable on the completion of the construction of a railroad, held not negotiable, inasmuch as the event named might never have happened.
    2. Assignments, § 33*—when recovery on assigned non-negotiable chose in action denied because of insufficiency of pleading. Where a plaintiff suing in his own name as assignee of a nonnegotiable chose in action failed to allege on oath that it was the actual bona fide owner thereof, or how or when it acquired title thereto, except that the date of such acquisition was laid under a videlicet, held that no recovery could be had, inasmuch as the plaintiff had not complied with section 18 of the Practice Act (J. & A. IT 8555).
    Appeal from the Circuit Court of Kendall county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in" this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Sidney N. "Ware, for appellant.
    John M. Raymond and John K. Newhall, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

In an action of assumpsit, pending in the Circuit Court of Kendall county, brought by Illinois Midland Railway Company against Farmers State Bank of Newark, Illinois, on February 25, 1916, plaintiff withdrew its original declaration and by leave of court filed in lieu thereof an additional special count, to which defendant demurred. The court sustained the demurrer, the parties abided by their pleadings, there was a judgment in bar against plaintiff, and plaintiff prosecutes this appeal therefrom.

Said additional special count alleged that plaintiff at a certain date was about to construct a railway in Kendall county from Millington, a junction with the Chicago, Burlington & Quincy, to Newark, and that thirty-nine persons there named, and others, deposited in the defendant bank the sums of money set opposite their respective names, aggregating $6,105, to aid in. such construction; that on October 27, 1913, said sub-' scribers named, with the consent of plaintiff, directed defendant to pay to M. C. Connors & Company, “under the name of railroad contractors,” said sums of money by the following instrument in writing:

“Newark, Ills., Oct. 27, 1913.

“Farmers State Bank,

Newark, Ills.

“Pay to the Railroad Contractors with the Illinois Midland Railway my subscription now in your possession to aid in paying such Contractors for construction when that section of the road is built which lies between Newark and a junction point with the Chicago, Burlington & Quincy on the north and the first train reaches Newark over such section”;

that defendant accepted said order and promised to pay said railroad contractor “said sums of money so on deposit under and by virtue of the terms of said order above specified”; that “on, to-wit, February 14, 1914,” all said conditions had been fulfilled, said railroad had been constructed between Newark and a junction point with the Chicago, Burlington and Quincy on the north and a train thereon had reached Newark, and that M. C. Connors & Company had built it in reliance on said order; that on said day plaintiff ordered defendant to pay said subscriptions to said railroad contractors; that by virtue of said facts, defendant was indebted to said railroad contractors and they demanded of defendant said sum of money, but defendant refused to pay it; that on November 26, 1915, by a writing commonly called an assignment, M. O. Connors & Company assigned to Peter Osmond and A. M. Thorsen, trustees, their title to any money on deposit in said bank as inducements and subscriptions to the building of said railroad, by which assignment they directed defendant to pay said money to Osmond and Thorsen as trustees; that “on, to-wit, the 15th day of January, 1916,” Osmond and Thorsen, as trustees, by their instrument in writing, assigned to plaintiff their title to said funds, whereby said sums of money became due from defendant to plaintiff, and that by these facts defendant became indebted to plaintiff, and that from thence hitherto defendant has held said money for the use of the plaintiff, etc.

It is obvious that the condition named in the order above set out might never have been performed. Therefore said order is not ■ a negotiable instrument at common law or under the law merchant, because to make it negotiable it must be payable either at a time stated or at a time capable of being ascertained and sure to occur. Kingsbury v. Wall, 68 Ill. 311; Van Zandt v. Hopkins, 151 Ill. 248. Sections 1 and 4 of the Negotiable Instruments Law of 1907 (J. & A. ffff 7640, 7643). Said section 4 provides “an instrument payable upon a contingency is not negotiable, and the happening of the event does not cure the defect. ’ ’

As this instrument was not negotiable prior to the adoption of our Practice Act of 1907, the equitable owners of said instrument could only sue thereon and recover in the name of the payee of that instrument. By section 18 of the present Practice. Act (J. & A. If 8555), the assignee and equitable and bona fide owner of a chose in action not negotiable may sue thereon in his own name, but he is required to state in his pleading on oath or by his affidavit, where pleading is not required, that he is the actual bona fide owner thereof, and to set ont how and when he acquired title. There is an affidavit attached to this additional special count, but it is only to the effect that affiant is the agent of plaintiff; that plaintiff’s demand is for money had and received by defendant for the use of plaintiff; and that a certain sum is due from defendant to plaintiff. Said count did not allege that plaintiff is the actual bona fide owner of said chose in action, and if there is any allegation which can be so construed, it is not under oath. There is no allegation under oath how plaintiff acquired title nor when he acquired title, nor does the affidavit state that ■ the allegations of the declaration are true, except as above stated. Moreover, the statement in the declaration of the date when plaintiff became the assignee of said instrument is laid under a videlicet. The effect of that allegation is to relieve plaintiff of any duty to prove • that precise date, but any other date may be proved thereunder. Rose v. Mutual Life Ins. Co., 144 Ill. App. 434; Steele-Wedeles Co. v. Shoodoc Pond Packing Co., 153 Ill. App. 576; Harrison v. Thackaberry, 154 Ill. App. 246; Columbian Three Color Co. v. Ætna Life Ins. Co., 183 Ill. App. 384. It is obvious that to permit the pleader to set forth one date when he acquired title to the chose in action and to prove a different date would defeat the purpose of the statute. It is clear that plaintiff made no attempt to conform to said statute in any respect. It cannot recover under that statute in its own name as assignee of said chose in action. Leemon v. Grand Crossing Tack Co., 187 Ill. App. 247; Edwards & Bradford Lumber Co. v. Bontjes, 193 Ill. App. 392.

Plaintiff contends that it can recover, because this is money which equitably belongs to the plaintiff and which the defendant ought not to retain. If that principle can be sustained, it entirely destroys the long-established doctrine that the assignee of a chose in action cannot recover thereon in his own name, and also destroys the effect of said recent statute, permitting such a recovery under certain circumstances. We are of opinion that the rule so relied on is not applicable to this case.

The judgment is therefore affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Edward Kelly, Appellee, v. Maude A. Knoll, Town Clerk, Appellant.
    Gen. No. 6,318.
    1. Intoxicating liquors, § 6

      —when presumed that addresses of signers of petition for local option election correct. Where the residence addresses of the signers of a petition for a local option election are in the appropriate column and the supporting affidavits state that such addresses are correct, it will be presumed that such addresses are correct.
    2. Intoxicating liquors, § 6*—when given addresses of signers of petition for local option election sufficient. Where a petition for a local option election by the inhabitants of a town lying wholly in a farming community contains in the appropriate column the addresses of the inhabitants as in the designated town, county and State, it is sufficient in such respect, and it is unnecessary that the signers designate the particular pieces of land on which they reside.
    3. Mandamus, § 190*—when judgment not reversed because moot case. A judgment awarding a peremptory writ of mandamus to compel a town clerk to submit the local option question to the voters will be affirmed, where the judgment was right and the enforcement was prevented by the respondent until after the election was held.
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.

      Benjamin H. Miller, Paul MacGuffin and F. B. Ebbert, for appellant.
    James C. Welch, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.

On February 1,1916, a petition was filed with Maude A. Knoll, town clerk of the Town of Vernon, in the County of Lake and State of Illinois, asking her to cause to be submitted in the manner provided by law to the voters of that town at the next election, the proposition : ‘ ‘ Shall this Town Continue to be Anti-saloon Territory?” Objections were filed with her to the submission of said matter, and she refused to submit it. Thereafter, on March 11, 1916, a petition was filed in the name of the People on the relation of Edward Kelly against said town clerk for a mandamus requiring her to cause said question to be submitted to the voters of that town at the next election. She was summoned and demurred to said petition and the demurrer was sustained. The petition was amended and the same demurrer was again filed to said petition, and that demurrer was overruled. She elected to abide by the demurrer and a peremptory writ of mandamus was awarded, and from that judgment she prosecutes this appeal.

While the demurrer is special and lengthy, yet the substance of it is that the petition for the submission of said question was invalid because there wa:s not written opposite the signature of each legal voter who signed said petition a sufficient residence address as provided by law, and the sufficiency of the petition in that particular is the only question presented for decision. Section 4 of the act concerning anti-saloon territory (J. & A. 4640) requires that the petition for the submission of such a proposition shall consist of sheets having a certain form at the head thereof, and signed by the legal voters, and it requires that “opposite the signature of each legal voter shall be written his residence address (stating the street and house number if there be such).” It is there provided that no signature shall be valid or be counted in considering the petition unless these requirements are complied with; and also that at the bottom of each sheet shall be added a statement signed by a resident of the county with his residence address as aforesaid, stating, among other things, that the respective residences of the signers are correctly stated therein. Upon the petitions so presented to the town clerk, under the heading ‘1 Town, City or Village,” “House Number,” “Street,” was written opposite the name of each signer, “Town of Vernon, County of Lake, State of Illinois.” At the bottom of each sheet was an affidavit by a person, a resident of the county, giving his address as the “Town of Vernon in the County of Lake and State of Illinois,” and stating, among other things, that the respective residences of the signers are correctly stated in the foregoing petition. The amendment to the petition said that there is no incorporated village or city in the said Town of Vernon, and that no signer of said petition resides or did reside upon any official street or at any number on any official street. The contention of appellant is that this petition did not sufficiently comply with the statute requiring that opposite each name should be stated the ‘1 residence address” of the signer. People v. Newell, 49 Colo. 349, is relied upon by appellant in support of her position. We do not think that when carefully read it supports her contention. Under the statute there in force it was required that opposite each signature should be his residence address. Certain signers wrote after their names the figures and words, “533 Pratt,” and many others writing after them wrote ditto marks under said address. There were other addresses and names written opposite other signatures, and beneath them other signatures with ditto marks. Some persons wrote the word “section,” or the abbreviation ‘ Sec. ’ ’ with a number written thereafter. The signatures were held proper and sufficient and the petitions were held sufficient. There was a suggestion there that a person might have as a residence address “The Elms,” “Wolhurst,” or “Sagamore Hill,” and the like. That case holds that the purpose of the law is to enable any one interested to ascertain whether the signer actually lives at the address given and thus to prevent fraud. It was there held that there was opposite the name of each signer in the column prescribed for that purpose what purported to be the .residence address or a ditto mark under such address; that the affidavit said that the addresses so written were the signers’ correct residence address; and that the court must presume that the figures and words opposite the respective names were the correct residence addresses of the signers of the petitions; and that the court could not take judicial notice of what constitutes a correct residence address. So here, the residence address being stated in the correct column and the affidavit being in the correct form, it is not for the courts to say that it is not the correct residence address. There is no claim in this case that there was any place where any signer lived that had any distinctive name like “The Elms,” or “Sagamore Hill.” Eeliance is also had upon State ex rel. Czerny v. Superior Court of King County, 70 Wash. 592. There a large number of signers did not give the name of the street upon which they resided, and it was held that the statute meant that they should give the street name upon which they lived, if they did live upon a street, even if their house had no number. The case of State ex rel. Quillen v. Superior Court of Lewis County, 70 Wash. 343, is in point. There the statute required opposite the name of the petitioner the name of the precinct in which he resided, his post office address, the street and house number, if any. The signers stated that they were qualified electors of the Town of Winlock, County of Lewis and State of Washington, and in the space underneath the column provided for “Post office address,” “Ward,” “Precinct,” “House No., if any,” they only wrote, “Winlock, Wn. ’ ’ There was, in fact, but one election precinct in that town. It was held that the address given was sufficient. In the case at bar, it is suggested by the appellant, that they might have stated the section in which they lived, or even the half or quarter section, and that they could have in some way designated the highway upon which the signer lived, or have given some description of the part of the town in which he could be found. These suggestions might well be addressed to the Legislature, but in a town lying wholly in a farming community where there are no cities or villages it is very seldom that any highway has a street name; and to require them to state the particular piece of land upon which they lived would be judicial legislation. We are of opinion that these signers gave all the “residence address” which they could reasonably be required to give under the statute in question. It is not claimed that the petition was defective in any other respect. We are of opinion that the peremptory writ of mandamus was properly awarded. The time for holding the election was passed before the case reached this court, but inasmuch as the judgment was right and its enforcement was prevented by appellant until after the election was held, it is proper that we affirm that judgment, as was done in People v. Dillon, 266 Ill. 272. The judgment is therefore affirmed.

Affirmed'


author: Mr. Presiding Justice Eldredge

text:
    National Cash Register Company, Defendant in Error, v. Ralph Jibben, Plaintiff in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Tazewell county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1911.
    Writ of error quashed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action of replevin by National Cash Register Company, plaintiff, against Ralph Jibben, defendant. An appeal had been taken and judgment rendered affirming the judgment of the lower court against the defendant. Defendant seeks by writ of error to have the same judgment of the lower court reversed.
    O. A. Smith, for plaintiff in error.
    Pbettymam, Velde & Pbettymah, for defendant in error.

      Abstract of the Decision.
    1. Judgment, § 408

      —when judgment on appeal res judicata. Where an appeal has been prosecuted the judgment thereon is res judicata, not only as to all errors assigned, but also as to all errors that might have been assigned, and it is immaterial whether the judgment is affirmed on the merits or for other reasons.
    2. Appeal and ebbob, § 22*—-when writ of error does not lie. Where a final judgment affirming the judgment of the lower court was entered on appeal, the unsuccessful party cannot again review the same judgment and reverse it upon a writ of error.
    3. Judgment, § 373*—what is effect of final judgment on appeal. The final judgment of the Appellate Court on appeal, affirming the judgment of the trial court, cannot be varied, explained or modified by parol.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.