text:
    Daniel V. Harkin, Administrator, Appellant, v. Ferro Concrete Construction Company and Great Lakes Dredge & Dock Company, Appellees.
    Gen. No. 18,877.
    1. Abatement and revival, § 2

      —when action for personal injuries survives. Prior to the Act of 1872, R S. ch. 3, § 123, J. & A. If 172, an action for damages for personal injuries abated with the death of the injured party in all cases where death was not caused by the injury, but since the passage of that act, if the injured party dies from a cause other than the injury, the action for the injury to his person survives to his personal representative.
    2. Action, § 37

      —when amendment of declaration sets up different cause of action. Where a person commenced a suit to recover for personal injuries and died pending the hearing and after his death was suggested and his administrator substituted as a party plaintiff the administrator was permitted to amend the declaration, and it appeared from the amended declaration that plaintiff’s intestate died as a result of his injuries and that recovery was sought for the benefit of his widow and next of kin, held that the declaration as amended set up a new and different cause of action from that disclosed in the original declaration, and that it was properly stricken from the files.
    3. Pleading, § 258

      —when must relate to time action is commenced. It is a fundamental principle that all pleadings in a suit must primarily relate to the time when the action was commenced and must be based on facts and causes of action as they existed then.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement by the Court. On April 1, 1910, Paul Schmidt commenced an action in the Superior Court of Cook county against appellees, defendants below, to recover damages for personal injuries sustained by him on March 3,1910, occasioned by the negligence of said defendants. The original declaration consisted of two counts, filed April 22, 1910, and to this declaration the defendants on May 2nd and May 3rd filed several demurrers. On May 30th Schmidt died, and on June 16th his death was suggested and Daniel V. Harkin, as administrator, was substituted as plaintiff. Subsequently, the said demurrers of the defendants to the original declaration were sustained, and on October 19th the plaintiff was given leave to make certain individuals, doing business as Carson, Pirie, Scott & Company, additional defendants and to file an amended declaration within ten days. To the entry of this order the original defendants objected and they were given fifteen days within which to file a bill of exceptions. From this bill of exceptions, signed and filed on November 2nd, it appears that each of the original defendants objected to the entry of the order of October 19th, on the ground that no showing had been made that the proposed amendment was to enable the plaintiff to sustain the action for the claim for which it was intended to be brought, or that the proposed amendment would set forth a cause of action maintainable against each of the original defendants, and on the further ground that it did not appear that said amended declaration would be based upon a cause of action in existence at the time of the commencement of this suit against the original defendants, but that the court overruled said objections and the original defendants excepted.
    On October 28,1910, in pursuance of the leave granted on October 19th, plaintiff filed a “declaration” against the two original defendants and said individuals, doing business as Carson, Pirie, Scott & Company, in which it was alleged that plaintiff’s intestate, in his lifetime, on March 3, 1910, was injured through the negligence of said original defendants and said individuals, that on May 30, 1910, “plaintiff’s intestate died as a result of his said injuries received as aforesaid,” leaving him surviving a widow and a son, his only heirs at law and next of kin, and that by reason of the death of plaintiff’s intestate “said wife and child have been deprived of their means of support and of large sums of money, ’ ’ etc., and have been damaged, etc. On November 21,1910, said additional defendants, doing business as Carson, Pirie, Scott & Company, entered their special appearance for the purpose of moving (a) to set aside the order entered October 19th, (b) to strike the amended declaration from the files, and (c) to dismiss the suit as to them. On October 38, 1911, these motions were overruled and said additional defendants were ruled to plead, which they did. They also filed a bill of exceptions, signed by a judge of said court, embodying their motions, the proceedings thereon, the overruling of their motions and their exceptions to the rulings of the court. It is stated by plaintiff’s counsel in their brief here filed that on October 21, 1912, the cause was dismissed as to the said additional defendants, but that fact does not appear in the transcript of the record before us.
    It does not appear that a rule was ever taken on the original defendants to plead to the declaration filed October 28,1910, but on April 11,1912, the two original defendants severally moved the court to strike from the files “the document called a declaration, filed October 28,1910,” and to set aside and vacate the order entered October 19, 1910, so far as it gave plaintiff leave to file an amended declaration against the two original defendants. The court sustained these motions, and struck from the files said declaration and modified the order of October 19, 1910, to the extent requested. It does not appear that plaintiff at any time filed any bill of exceptions embodying any proceedings had, or evidence heard, or exceptions taken, in connection with the said motions of the defendants so sustained by the court. It does, however, appear that on July 11, 1912, the order of April 11, 1912, was so amended as to contain a recital that the plaintiff excepted to the said order of the court of April 11, 1912, and also to contain a statement of plaintiff’s attorneys that they “represented and declared in open court that plaintiff’s intestate, Paul Schmidt, died as a result of the injuries alleged in the original declaration filed herein; *■ * * that plaintiff would not ask leave to file any further amended declaration but that plaintiff elected to stand by the amended declaration, filed October 28, 1910, being the declaration which the court has hereinabove ordered stricken from the files.” The order of April 11, 1912, was further amended by the court entering final judgment in favor of said original defendants and against the plaintiff for costs of suit, to be paid in due course of administration. To the entry of this judgment plaintiff excepted, and seeks by this appeal to reverse the same.
    Dillard B. Baker and George D. Wellington, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee Ferro Concrete Construction Company.
    John E. Kehoe and Charles LeBoy Brown, for appellee Great Lakes Dredge & Dock Company.

      Seo Illinois Notes Digest, Vols. XI to XV. same topic and section number-,

   Mr. Justice Gridley

delivered the opinion of the court.

Counsel for plaintiff contend that the judgment is erroneous because the court erred in striking from the files the declaration filed October 28, 1910, and the argument is that this should not have been done for the reason that the declaration did not set up a new and different cause of action from that disclosed in the declaration filed April 22, 1910; that inasmuch as Paul Schmidt died as a result of the injuries the cause of action is the same after his death as it was before his death; and that where the cause of action is the same, amendments pertaining thereto are properly allowed.

Counsel for defendants contend (1) that the order of the court striking said declaration from the files cannot here be reviewed because no bill of exceptions was filed by plaintiff, although there is a recital in the clerk’s transcript that plaintiff excepted to the order; and (2) that the court did not err in striking said declaration from the files because the suit, as originally commenced, was a common law action to recover damages for personal injuries, and subsequently Schmidt died as a result of those injuries, and the action could not afterwards be changed into a statutory action for the benefit of the widow and next of kin of Schmidt, the cause or right of which statutory action was not in existence at the time of the beginning of the suit.

From the view we take of the second of the above contentions of counsel for the defendants it will be unnecessary for us to pass upon the first.

“One who suffers an injury to his person as a consequence of the wrongful or negligent act of another has a right of action for the damages resulting from such injury without the aid of any statute but by a right which existed at common law. His action is for the personal injury, and he may recover for pain and suffering, physical and mental, for expenses of medical treatment and attendance, and permanent effects upon his person reasonably certain to result.” (Prouty v. City of Chicago, 250 Ill. 222, 226.) “The common law rule was, that actions merely personal, arising ex delicto, died with the person, and did not survive to the representatives.” (Holton v. Daly, 106 Ill. 131, 136; Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424, 429.) But our General Assembly passed an act on February 12,1853 (sections 1, 2, ch. 70, Rev. St. J. & A. 6184, 6185), entitled “An act requiring compensation for causing death by wrongful act, neglect or default,” which provided, in substance, that whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person or company or corporation which would have been liable if death had not ensued shall be liable to an action for damages resulting to the widow and next of kin from his death. And in the act in regard to the administration of estates, passed in 3872, it was provided by our General Assembly (section 123, eh. 3, J. & A. 172) that: “In addition to the actions which survive "by the common law, the following shall also survive: Actions of replevin, actions to recover damages for an injury to the person (except slander and libel),” etc.

It has been held that “prior to the Survival act of 1872 it was the law of this State that an action for damages for personal injury abated with the death of the injured party in all cases where the death was not the result of the injury”; (Ohnesorge v. Chicago City Ry. Co., supra) and that since the passage of said Survival act, if the injured person “dies from some other cause than the injury the action for the injury to his person survives to his personal representative, who may recover damages for the personal injury.” (Prouty v. City of Chicago, supra; Holton v. Daly, supra; Chicago & E. I. R. Co. v. O’Connor, 119 Ill. 586, 594.)

It appears from the original declaration of Paul Schmidt in this case, filed April 22,1910, that he sought to recover damages from the defendants for injuries received by him on March 3,1910, and, therefore, when on June 16,1910, his administrator came into court and suggested his death, it was proper for the court to enter the order substituting said administrator as party plaintiff. (Section 10, ch. 1, Eev. St. J. &.A. 10.) It did not then appear of record whether Schmidt had died from the effects of the injury received on March 3, 1910, or from some other cause. "When, however, said administrator filed, on October 28, 1910, a declaration, in which it was stated that “plaintiff’s intestate died as a result of his said injuries as aforesaid,” and it appeared from the allegations of the declaration that the administrator sought to recover, for the ■exclusive benefit of the widow and next of kin of Schmidt, compensation for the pecuniary injuries sustained by said widow and next of kin resulting from the death of Schmidt, a new and different cause of action from that originally prosecuted, and one which had. arisen since the commencement of the suit, was, in our opinion, disclosed.

In the Prouty case, supra, it was decided that the right of action given by the statute of 1853 to the administrator of a person whose death has resulted from the wrongful act or neglect of another, to recover for the pecuniary loss to the widow and next of kin, is not an action for a personal injury. In the opinion of the Court (250 Ill. p. 127) it is said (italics ours):

“If an injured person survives and brings a suit for the personal injury and afterwards dies from its effects the action does not survive but abates, and a different right of action is substituted based upon a statute. That is the right of personal representatives of a deceased person to bring a suit and recover the pecuniary injuries to the widow and next of kin occasioned by his death, and that right exists in this State by virtue of the act of 1853. * * * We are asked to say that a suit of that kind is the same as a suit by a living person for damages sustained on account of an injury to his person, but it seems to us that it would require a perversion and change of language to reach such a conclusion.”

In our opinion, one of the essential elements of the cause of action as set out in the declaration filed in this case on October 28,1910, was the allegation of the death of plaintiff’s intestate “as a result of his said injuries received as aforesaid,” and it therein appeared that the death occurred on May 30, 1910,—nearly two months after the suit was commenced. “It is a fundamental principle that all pleadings in a suit must primarily relate to the time when the action was commenced and must be based on facts and causes of action as they existed then” (31 Cyc. 391). In Langguth v. Village of Glencoe, 253 Ill. 505, 509, it is said: “If the notices required by statute constitute one of the elements of the plaintiff’s cause of action, * * * that element must exist at the time the action is brought, as the plaintiff clearly cannot recover upon a cause of action one element of which * * * has been brought into existence since the suit was commenced * * *.”

In the case of Wetherell v. Chicago City R. Co., 104 Ill. App. 357, Eliza A. Pag’e brought suit to recover-damages for injuries sustained by her. 'Subsequently her death was suggested and the executors of her estate were substituted as plaintiffs. No other than mere verbal changes were made in the original declaration. Upon the trial, at the close of all the evidence, the jury were directed to return a verdict for the defendant, and from the judgment entered upon this verdict the executors appealed. The Appellate Court reversed the judgment on the ground that the trial court should have submitted the case to the jury upon the merits and also upon the cause of death, and in its opinion said (p. 361, italics ours):

“When the injured party dies, not from or as a direct result of the injuries, the right of action continues in his representative for the benefit of his estate generally. # * * However, when the injured party dies from the injuries, an action arises in favor of his representative, which requires a new suit, for the exclusive benefit of his widow and next of kin.”

In the case of Thomas v. Star & Crescent Milling Co., 104 Ill. App. 110, John C. Thomas brought suit to recover damages for injuries sustained by him on account of the alleged negligence of the milling company. After a trial resulting in a judgment for Thomas, which judgment was on appeal reversed and the cause remanded, Thomas died and his administratrix was substituted as plaintiff. Subsequently, the administratrix filed an amended declaration, which contained the identical counts filed by Thomas during his lifetime but claimed damages to his widow and next of kin for his injuries, instead of for his pain and suffering as in his original declaration. Upon the trial the Court instructed the jury to find for the defendant and judgment was entered upon that verdict, which was affirmed by the Appellate Court. In the opinion of the Court it is said (p. 113, italics ours):

“It is manifest that John C. Thomas had at no time the cause of action alleged in the declaration filed by appellant. His cause of action was for injuries sustained by and damage accruing to him; he might have recovered for pain and suffering by him endured; whatever had been recovered by him would have belonged to him and been assets that might have been reached by his creditors. His administratrix, in the declaration filed by her, claims only for damages accruing to his widow and next of kin as a result of his death. Such cause of action- had no existence until he died. * * * Such actions cannot be joined in one suit. The cause of action in one is not that of the other. * * * Appellant should not, upon her application, have been substituted as plaintiff and thereafter allowed to prosecute in that suit a cause of action which had no existence, neither accrued nor came into being, until nearly four years after that suit was begun. ’ ’

In the Ohnesorge case, supra, in speaking of the act of February, 1853, our Supreme Court said (259 111. p. 430, italics ours): “This statute was not a survival statute. It did not continue to the personal representative the cause of action that the injured party had under the common law, but it created a new and independent cause of action never before that time recognized as existing in this State. * * * It was not designed by the legislature to give damages for any injury received by the deceased, but to create a cause of action in the name of the administrator for the pecuniary loss which the widow and next of kin may have sustained by reason of the death of the injured person.” And the Court, in speaking of the Survival Act of 1872, further said:

“It was held in Holton v. Daly, supra, that the action only survived in cases where death was from some cause other than the injury. If death resulted from the injury the only action that could be maintained was by the personal representative under the Injuries statute of 1853. The entire separation of the two eauses of action and the independence of each of the other may be illustrated by supposing that a person receives an injury, for which suit is brought by him, a recovery had and judgment satisfied. Afterwards the injured party dies from the effect of the injury. The recovery by the deceased, in his lifetime, for the injury sustained by him, under a common law action, would not bar a suit by his personal representative for the benefit of the widow and next of kin under the statute of 1853. (Holton v. Daly, supra.)

We have seen fit to refer to the above decisions of the reviewing courts of this State for the reason that counsel seeks to support his contention (viz.: that the declaration filed October 28,1910, did not set up a new and different cause of action from that disclosed in the declaration filed by the deceased in his lifetime) by several decisions of our Supreme Court, wherein it has been held that the cause of action, under the Act of February, 1853, “is plainly the wrongful act, neglect or default causing death, and not merely the death itself.” The cases referred to are those of Crane v. Chicago & W. I. R. Co., 233 Ill. 259; Mooney v. City of Chicago, 239 Ill. 414; Devine v. Heal’y, 241 Ill. 34, and Holton v. Daly, supra. But in none of these cases was it held that the death was not an essential element of the right of action given by the Act of 1853.

Counsel for plaintiff also argue that the declaration of October 28, 1910, was properly filed in this case because of the provision of our Practice Act relative to amendments. Section 39 thereof (J. & A. )[ 8576) provides that “amendments may be allowed on such terms as are just and reasonable, * * * in any matter either of form or substance, in any process, pleading or proceeding which may enable the plaintiff to sustain the action for the claim for which it was intended to he brought * * It seems clear to us that the declaration of October 28, 1910, in no way tended to sustain the action for the claim for which the suit was originally brought.

Our conclusion is that the court did not err in striking said declaration from the files, and, inasmuch as plaintiff’s attorney stated that he would not file any further declaration but elected to stand upon said declaration, the entry of the judgment in favor of the original defendants was proper. Accordingly, the judgment of the Superior Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    Julius London, Appellee, v. S. Jaffe, Appellant.
    Gen. No. 18,889.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement of the Case.
    Action by Julius London against S. Jaffie based on a written assignment to plaintiff, as assignee of an account due from the defendant to M. Golbus, the assignor. The defense, as disclosed from defendant’s affidavit of merits and as urged upon the trial, was that the assignment was not made in good faith and was without consideration between the assignor and assignee, and that at the time of the execution of the assignment there were no moneys due and owing from defendant to Golbus. From a judgment.in favor of plaintiff for $1,834.29, defendant appeals.
    Samuel J. Ahdalmah, for appellant; Jacob Coheh, of counsel.
    Julius C. Greehbaum, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Assignments, § 36 -—when evidence sufficient to sustain finding of jury. In an action by an assignee of an account to recover the amount due thereon from the defendant to the assignor, a finding by a jury that there was no understanding between the defendant and the assignor that certain notes given by the assignor to the defendant were to be paid or canceled by the sale of certain merchandise by the assignor to the defendant, held sustained by the evidence.

2. New trial, § 67 —when newly discovered evidence ground for. To authorize a new trial on the ground of newly discovered evidence it must appear that the evidence has been discovered since the trial and that the party has not been guilty of negligence in not discovering and producing it on the former trial. A new trial will not be granted where such evidence is merely cumulative and not conclusive in its character.


author: Mr. Justice G-ridley

text:
    Elevator Supply & Repair Company, Appellee v. Ella C. Case, Appellant.
    Gen. No. 18,945.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement of the Case.
    Scire facias or an appeal bond from justice court executed by Ella C. Case on the appeal of Biddle-Murray Manufacturing Company, a corporation, from a judgment against it in an action wherein the Elevator Supply & Repair Company was plaintiff and said Manufacturing Company defendant, which judgment was affirmed in 156 Ill. App. 461. From a judgment for plaintiff on the striking of defendant’s pleas, defendant appeals.

      Abstract of the Decision.
    1. Justices of the peace, § 295

      —when plea in abatement in action on appeal bond bad. In scire facias on an appeal bond from justice court a plea in abatement to the jurisdiction of the court averring that defendant resided and was served in a county other than that in which the writ issued is bad.
    2. Scibe facias, § 1

      —nature. A writ of scire facias is considered both as a process and as a declaration.
    3. Justices of the peace, § 295

      —when nil debet improper. In scire facias on an appeal bond from justice court a plea of nil debet is bad.
    4. Justices of the peace, § 295

      —when non est factum bad. In scire facias on an appeal bond from justice court pleas of non est factum are bad, even though denying the execution of the bond by defendant, for the reason that the bond on being filed in the County Court became part of the record and indisputable.
    5. Justices of the peace, § 295

      —when pleas properly stricken in action on appeal bond. In scire facias on an appeal bond from justice court, where defendant as surety pleaded nil debet and non est factum, averring that the bond in suit was not the deed of the principal defendant and that it was not executed by an authorized officer of such principal defendant, there being no allegation of the satisfaction or discharge of the judgment against the principal defendant, it was held that the pleas were properly stricken from the files.
    6. Appeal and error, § 1306

      —when court presumed justified in striking pleas. On appeal from judgment in scire facias on an appeal bond in justice court, in the absence of a bill of exceptions it will be presumed that the action of the court in striking defendant’s pleas from the files and entering judgment was fully warranted.
    Alfred E. Case, for appellant.
    James J. Leahy, for appellee; Albert O. Olson, of counsel.

      Seo Illinois Notes Digest, Yols. XI to XV, same topic and section number.

   Mr. Justice G-ridley

delivered the opinion of the court.


text:
    Edward Murphy, Appellee, v. City of Chicago, Appellant.
    Gen. No. 18,961.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal cobpobations, § 1050

      —when driver not guilty of contributory negligence. The driver of a vehicle using a street “on and off for six years” injured by being thrown to the ground, upon the front wheel of the wagon becoming caught in a depression in the street about three feet long, six to eight inches deep and three to eight inches wide, which had existed for a year or more, held not guilty of contributory negligence as a matter of law.
    2. Appeal and ebbob, § 472

      —when remarles of trial judge not saved for review. Remarks of the trial judge claimed to have been improper will not be considered where they were not objected to and no exception was taken.
    Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding.
    -Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1913.
    Statement of the Case.
    Action by Edward Murphy against City of Chicago to recover for personal injuries sustained as the result of being thrown from a wagon owing to a defect in the street. From a judgment for plaintiff for one thousand two hundred and fifty dollars, defendant appeals.
    William H. Sexton and N. L. Piotrowski, for appellant; David B. Levy, of counsel.
    Harvey Wynekoop and Guerin, Gallagher & Barrett, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    John R. Blennerhassett, Appellee, v. La Salle, Appellant.
    Gen. No. 18,983.
    (Not to be reported in full.)
    Abstract of the Decision.
    Elevators, § 21

      —when operator of elevator guilty of contributory negligence. Where a contrivance in the shape of an inverted “U” placed on an elevator running from the basement of a building in which plaintiff was employed, through a shaft opening on a sidewalk in an alley, the object of which was automatically to open and close the iron doors covering the shaft, had been removed before plaintiff attempted to use the elevator, he having had knowledge of such removal and that it had not been replaced, it was held that his contributory negligence barred recovery for injuries sustained by being struck on the head by the fall of one of the iron doors covering the shaft as the elevator descended.
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed with finding of fact.
    Opinion filed March 5, 1914.
    Statement of the Case.
    Action by John B. Blennerhassett against La Salle, a corporation, to recover for personal injuries. Plaintiff was in the employ of a tenant of defendant, and was injured by the fall of an iron door covering an elevator shaft as he was descending on the elevator. From a judgment in his favor for six hundred dollars, defendant appeals.
    F. J. Canty and B. P. Garrett, for appellant.
    J. W. Sutton and Martin L. Wilborn, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Julius Gebhard, Appellee, v. Brewers Malting Company, Appellant.
    Gen. No. 18,836.
    (Tiot to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. WrsroES, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement of the Case.
    Suit in attachment by Julius Gebhard against Brewers Malting Company, a corporation, upon a written contract. The writ was levied on real estate of the defendant. Personal service was had upon certain garnishees and service upon defendant was by publication. The declaration was not filed until two days before the next term of court. A default was entered against defendant and damages were assessed at $1,730.60. From a judgment entered against defendant for such amount, defendant appeals.
    On one of the days of the term at which judgment was entered against defendant, the court denied a motion to vacate the default and judgment, and the defendant at the next term of court sued out a writ of error to review the action of the court in denying the motion, which writ of error was pending at the time of this appeal. See Gebhard v. Brewers Malting Co., post, p. 256.
    Alvin W. Wise, for appellant.
    Chase B. Bankin, for appellee; Binar C. Howard, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 299 —what constitutes final orders in attachment proceeding. Where a judgment is entered against the defendant by default and subsequently the court denies defendant’s motion to vacate the judgment, the judgment order and the order denying the motion to vacate are both final orders and the defendant has a right to appeal from either or both.

2. Appeal and error, § 19 —separate appeals. To obtain a review by appeal of a judgment entered by default and also an order denying a motion to vacate the judgment, there must be a separate appeal from each order.

3. Appeal and error, § 299 —when defendant in attachment may appeal from default judgment. Defendant in attachment may appeal from a default judgment entered against him, though the case has not been finally disposed of as to the garnishees.

4. Appeal and error, § 1332 —when evidence justifying default' presumed heard under common counts. Although a special count in a declaration shows no cause of action, if the declaration contains the common counts and judgment is rendered by default it will be presumed, in the absence of a bill of exceptions showing the contrary, that the court heard evidence to justify the judgment under the common counts.

5. Attachment, § 236—time of filing declaration. In an attachment proceeding a judgment hy default may be entered against the defendant at the next term of court, though the declaration was not filed ten days before the commencement of said term.

6. Judgment, § 252 —what constitutes basis for amendment of judgment order after term. Where a judgment order on a default judgment recites the assessment of plaintiff’s damages at the sum of “Seventeen Hundred and Thirty Dollars and Sixty Cents”, and in another portion of the order judgment is rendered for plaintiff for “Seventeen Hundred and Thirty and Sixty Cents in form as aforesaid by the court assessed” while in the part of the order referring to a conditional judgment against the garnishees the word “dollars” appeared in the amount specified followed by: “being the amount of the judgment heretofore entered herein against the defendant,” it was held that the order itself furnished a sufficient basis for an amendment inserting the word “dollars” in the amount named in the clause reciting the rendition of judgment.


text:
    Julius Gebhard, Defendant in Error, v. Brewers Malting Company, Plaintiff in Error.
    Gen No. 18,837.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Courts, § 33

      —rules of court. Rule 2 of the Circuit Court of Cook county was not meant to apply to attachment cases in which service is had on the defendants by publication.
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Winces, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.
    Statement of the Case.
    Suit in attachment by Julius Gebhard against Brewers Malting Company, a corporation, on a written contract. Notice was served upon defendant by publication and a default was entered, and upon assessment of damages judgment was entered against defendant for $1,730.60. At the same term at which judgment was entered the court denied defendant’s motion to vacate the judgment and the defendant at a subsequent term prosecuted a writ of error to review the order denying his motion to vacate.
    Prior to the suing out of this writ of error the defendant prayed an appeal to the Appellate Court from the judgment by default. 'This appeal was heard in that court in Gebhard v. Brewers Malting Co., ante, p. 254.
    Alvin W. Wise, for plaintiff in error.
    Chase R. Rankin, for defendant in error; Binar" C. Howard, of counsel.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

2. Appeal and error, § 1380 —when discretion in setting aside /default not reviewahle. A motion- to set aside a default is addressed to the sound legal discretion of the court, and unless it appears that such discretion has been wrongfully and oppressively exercised the Appellate Court will not interfere.

3. Judgment, § 142 —when showing insufficient to set aside default. On a motion to vacate a default judgment where the only evidence offered to support the motion was an affidavit of an employe of defendant, held that denial of the motion was not an abuse of trial court’s discretion, there being no proper showing that defendant had a meritorious defense or that he was not guilty of negligence from failing to plead in apt time.

4. Judgment, § 148 —when counter-affidavit on motion to vacate a default improper. On motion of defendant to vacate a default judgment entered against him, admitting affidavits of plaintiff on question whether defendant had a meritorious defense in opposition to defendant’s motion, held improper but not prejudicial error.


text:
    Pennsylvania Company, Appellee, v. A. F. Cook & Company, Appellant.
    Gen. No. 18,873.
    1. Carriers, § 33

      —jurisdiction of claims involving overcharges in interstate shipments. In an action in the Municipal Court by a railroad company to recover a sum due it on freight bills, evidence offered under a plea of set-off that plaintiff was indebted to defendant for overcharges on freight bills paid by defendant to plaintiff on interstate shipments, held inadmissible, for the reason that the court had no jurisdiction of a claim involving the determination of the question whether the railroad company was guilty of unjust discrimination, there being no decision of the Interstate Commerce Commission offered in evidence with reference to the rates in question.
    2. Carriers, § 33

      —who to determine question of unjust discrimination in rates. Whether a railroad is guilty of unjust discrimination in making rates can be determined only by the Interstate Commerce Commission.
    Appeal from the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 5, 1914.

      Frederick A. Brown and William B. T. Ewen, Jr., for appellant; Baymond S. Pruitt, of counsel.
    Loesch, Scofield & Loesch, for appellee.

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

   Mr. Justice Scanlan

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court of Chicago, for the sum of $817.16, rendered in favor of the appellee, the Pennsylvania Company, a corporation (hereinafter referred to as the plaintiff), and against A. F. Cook & Company, a corporation, the appellant (hereinafter referred to as the defendant). The case was tried by a court and jury. The plaintiff sued to recover from the defendant the amount alleged to be due it from the defendant for certain freight bills. The plaintiff’s final claim, after certain items had been eliminated, was for $855.63. The defendant admitted owing the plaintiff $198.33. It further conceded that certain freight bills in plaintiff’s statement of claim to the amount of $855.63 had not been paid. It alleged in a plea of set-off that the plaintiff was indebted to the defendant for overcharges on freight bills paid by the defendant to the plaintiff to the amount of $620.08 on shipments of coke from the Connellsville district in Pennsylvania to Chicago, Illinois, between September 1, 1907, and June 1, 1911. On the trial the defendant, over the objection of the plaintiff, was allowed to introduce evidence in support of the claim alleged in the set-off, and it contends in this court that this evidence proved that the plaintiff did overcharge the defendant on the shipments in question to the amount of $620.08, and that the defendant is entitled to have a remittitur of that amount or a reversal of the judgment.

It is admitted that the shipments mentioned in the set-off were interstate and were governed by the act of Congress known as the Interstate Commerce Act. It is further admitted that the- plaintiff had established, filed, published and posted, as required by the said act, a certain schedule of freight rates, and that these rates were in full force and effect during the period of the shipments mentioned in the plea of set-off. It is further admitted that in this schedule, the railroad company made a rate of $2.35 per ton for coke (from the Connellsville coke region in Pennsylvania to Chicago) for use in blast furnaces for smelting iron from ores and a rate of $2.60 per ton between the same places for foundry coke. It is admitted that the defendant was charged and paid $2.60 per ton on all the shipment's mentioned in the set-off and that the total amount of the alleged overcharges is $620.08. The defendant contends that there is no real difference, from a transportation standpoint, in the two cokes; that they are similar in size and weight, and that the distinction made by the plaintiff in its schedule is an artificial one. The defendant insists that the Interstate Commerce Commission has held that it is unlawful for a railroad company to make a distinction in freight rates solely on the use to which a commodity is to be put, and that the railroad company, in the making of the two rates in question, was guilty of unjust discrimination and undue preference; that the defendant Company was entitled to the benefit of the $2.35 rate, and that the difference between that rate and the one charged the defendant was an unlawful overcharge that the defendant had the right to plead by way of set-off to the plaintiff-’s claim.

The plaintiff, during the trial, objected to the introduction of the evidence offered by the defendant in support of the claim alleged in its set-off, and it also made motions at the close of the defendant’s evidence in support of said set-off, and at the close of all the evidence in the case, to strike out all the evidence that had been introduced in support of said set-off. Plaintiff has assigned certain cross-errors relating to the action of the trial court in admitting the evidence in question and in refusing to sustain the motions of the plaintiff to strike the said evidence from the record. In spite of the fact that the trial court admitted the evidence to sustain the claim alleged in the set-off, it will be noticed that the plaintiff obtained a verdict and judgment against the defendant for the full amount claimed by the plaintiff, less $37.22. This latter amount related to a claim of the defendant for certain coal alleged to have been lost in transit and it had no bearing on the claim alleged in the set-off. The plaintiff, on the trial of the case, in addition to the general defense interposed by it to the claim alleged in the set-off, also made special defenses to the same, and these defenses undoubtedly account for the fact that the alleged overcharges were not allowed by the jury. In the view that we have taken of this case, it will not be necessary, to notice these special defenses (although they are urged in this court), as the plaintiff has raised one point in reference to the claim alleged in the set-off that seems to be decisive of the case. The plaintiff insists that the Municipal Court had no jurisdiction of the said claim for the reason that it involved a determination by the jury and the court of the question as to whether the railroad company, in the making of the rates in question, was guilty of unjust discrimination. The plaintiff insists that such questions can be determined only by the Interstate Commerce Commission, and this contention seems to be well founded. Mr. Justice White, in the case of Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, in a very able opinion, analyzes and explains the scope and purposes of the Interstate Commerce Act. In passing on the question now before us, the Court, held, that it is clearly the purpose of the law, that where interstate rates are fixed by railroad companies in the mode provided by the act, and they are in force, and a shipper believes that a schedule rate charged him is discriminatory or unreasonable, and he seeks reparation predicated upon that fact, he cannot, under the provisions of the act, in the first instance, seek relief through actions brought in courts of law, but he must primarily invoke redress through the Interstate Commerce Commission, and it is for the' said Commission to determine the question as to whether the rate complained of is discriminatory or unreasonable. In the case of Robinson v. Baltimore & O. R. Co., 222 U. S. 506, the Court sustains the ruling in the last mentioned case and makes the following additional ruling: That even though the Interstate Commerce Commission has made a decision with reference to a rate in question, still no court can take judicial knowledge of that fact, and if a party in a court proceeding desires to avail himself of the benefit of the decision of the Commission in reference to a particular rate or rates he must introduce in evidence the decision of the Commission; a duly authorized published copy of the same being sufficient under the provisions of the law.

The defendant in this case did not offer in evidence any decision by the Interstate Commerce Commission in reference to the rates in question, and, it would appear clear from the cases cited that the Municipal Court did not have jurisdiction to entertain the claim alleged in the set-off. It follows from this that the trial court should not have allowed evidence in support of the set-off, and that being so, it necessarily follows that the judgment of the court is for the correct amount due to the plaintiff. The judgment of the Municipal Court will therefore be affirmed.

Affirmed.


author: Mr. Presiding Justice Baker

text:
    Charles R. Norris, Defendant in Error, v. Hess Bright Company, Plaintiff in Error.
    Gen. No. 18,637.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 471

      —lohen liable on contract of employment made with a company whose business is taken over. Where a company enters into a written contract to employ a person and later the company organizes as a corporation and takes over its former business and both the employe and the corporation thereafter treat the contract of employment as with the corporation, held that the corporation is liable on the contract.
    2. Master and servant, § 23

      —when notice to cancel contract of employment may be given. Where the provisions of a contract of employment are that the agreement is to remain in force for one year and after such time to become self-perpetuating from year to year, unless three months prior to the expiration of any year due notice is given by either party to cancel it at the end of the current year, the employer is required to give notice three months prior to the end of the first year to cancel the contract before that date.

      Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Action by Charles E. Norris against Hess Bright Company, a corporation, to recover damages for breach of a contract of employment. The contract was in writing and was entered into between the plaintiff and the Hess Bright Manufacturing Company, the business of which was subsequently taken over by the defendant corporation. From a judgment in favor of plaintiff for four hundred and fifty dollars, defendant brings error.
    Elbert C. Ferguson, for plaintiff in error.
    Alden, Latham & Young, for defendant in error; T. A. Sheehan, of counsel.

      See Illinois Notes Digest, Vote. XI to XV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

3. Master and servant, § 37 —when letter does not constitute notice to cancel contract of employment. Under a contract of employment requiring three months’ notice to cancel the same, a letter written by the employer to the employe stating that “the best way to relieve us of an embarrassing situation would he for you to immediately set about looking for another business connection and resign,” etc., held not to constitute a discharge nor a notice of the desire of the employer to cancel the contract.


text:
    Orlen W. Sisson, Defendant in Error, v. Mrs. L. Havens, Plaintiff in Error.
    Gen. No. 18,671.
    Landlord and tenant, § 279

      -—-what constitutes a disturbance of possession excusing nonpayment of rent. In an action by the owner of premises to recover accrued rent of an apartment occupied by defendant, the evidence showed that the rear apartment on the second floor of a building was leased to defendant, the front apartment being subsequently leased- to another tenant; that both apartments opened on a common hall, which provided the only means of access to a stairway leading to the street; that prior to the period period for which the rent was claimed the occupant of the front ment closed and fastened the door leading from the hall to defendant’s apartment, and that the only response of the owner to defendant’s complaint was that she might pass through his store on the first floor. Held that defendant, as an incident to the demised estate, possessed the right to the use of the hall and stairway in question; that the act of the tenant of the front apartment was auhorized by the owner, and constituted a substantial interference with defendant’s beneficial enjoyment of the premises, precluding the recovery of rent during its continuance.
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed with finding of facts.
    Opinion filed March 9, 1914.

      Rost & Smith, for plaintiff in error; Andrew Rost, Jr. and William W. Smith, of counsel.
    A. F. W. Siebel, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff Sisson, by written lease, leased to defendant, Mrs. Havens, the suite of four rooms on the second floor of the building known as 3563 Colorado avenue, Chicago, with appurtenances, as a dwelling from May 1, 1910, to May 1, 1911, and by renewal the lease was extended to cover the year ending May 1, 1912. There was an apartment of three rooms and a hall between the rooms demised to defendant and the front of the building on Colorado avenue. A stairway led from Colorado avenue to a hall on the second floor of the building and from this hall a door opened into the rooms demised to defendant, and another door opened into the front apartment. Defendant up to about the first of November, 1911, in going to and from her rooms passed through the door into the hall and thence along the hall to the front stairway leading to Colorado avenue, and her only means of access to the stairway was through the hall. About the first of November, 1911, Burke, the tenant in possession of the front apartment and hall, closed and fastened the door leading to the apartment of defendant. This suit was brought to recover rent for December, 1911, and the three following months, which defendant refused to pay on the ground that the closing of the door leading from her rooms to the hall and depriving her of the use of the door, hall and stairway leading to Colorado avenue constituted an eviction and suspended her obligation to pay rent. The door was opened in April and she paid her rent for that month. The court found against the contention of the defendant and rendered judgment against her for eighty dollars, the amount of the rent for the months of December, 1911, and January, February and March, 1912, and defendant has sued out this writ of error.

We think that on the evidence in the record the defendant had, as an incident to the estate demised to her, the right to use the door leading from her apartment to the hall, the hall and stairway as means of access to her part of the building; that Burke had also the right to use the hall and stairway as a means of access to his part of the building, but not an exclusive right to such use. We also think that on the evidence the plaintiff was responsible for the act of Burke in fastening the door and excluding defendant from access to the hall and stairway. The only suggestion that plaintiff made when she complained to him that she was deprived of the use of the stairway and hall was that she might go through his store on the first floor. The plaintiff leased the front flat, including the hall, after he had leased the rear flat to the defendant, and the tenant to whom plaintiff leased the front flat sublet the same to Burke. The act of Burke in excluding the defendant from passing through the hall leased to him, was therefore an act authorized by the landlord.

The evidence in the record shows an act of a permanent character done by authority of the landlord against the objection of the tenant which was a substantial interference with the defendant’s beneficial enjoyment of the premises. According to a long list of authorities such an eviction precluded the recovery of rent accruing subsequent to the eviction and while it continued.

The judgment of the Municipal Court will be reversed.

Reversed with finding of facts.

Finding or Facts. The court in this case finds as facts that the rent, to recover which this action was brought, accrued after there had been a substantial interference by authority of the plaintiff with the beneficial enjoyment of the premises leased by plaintiff to defendant which constituted an eviction, and accrued while such eviction continued.


text:
    Ethel Levy, Defendant in Error, v. Morand Brothers, Plaintiff in Error.
    Gen. No. 18,697.
    Evidence, § 79

      —when conversations not admissible as part of res gestae. In an action to recover for personal Injuries inflicted by an automobile, evidence of conversation between plaintiff and the chauffeur and the latter and a police ofdcer, after the "injury and after plaintiff had been placed in the automobile, held erroneously admitted.
    Error to the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 9, 1914.
    F. J. Canty, for plaintiff in error; B. P. Garrett, of counsel.
    MacChesnby, Becker & Bradley, for defendant in error; Harry E. Smoot, of counsel.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

In tort for personal injuries plaintiff had a verdict for seven hundred and fifty dollars, from which she remitted two hundred and fifty dollars, had judgment for five hundred dollars, and defendant prosecutes this writ of error. She was struck by an automobile of the defendant at a street intersection. Whether defendant was negligent, whether plaintiff was guilty of contributory negligence and whether the recovery is excessive for the injuries sustained are among the questions in dispute. Police officer Corcoran testified that he saw the accident; that plaintiff was lying on the pavement with the machine on her skirt; that he helped to shove the machine away from her and to pnt her in the machine and after she was in the machine had a conversation with the chauffeur. He was permitted to testify, over the objection of the defendant, that in such conversation he upbraided the chauffeur, told him that he ran away from the whistle, that he had plenty of time to stop on the east side of the walk, and that he did not remember that the chauffeur made any reply.

The chauffeur went with officer Corcoran and plaintiff to the police station and then took the plaintiff home. She was permitted to testify, over the objection of defendant, that on the way home he asked her what the officer said and she answered that he said: “You ignored the signal,” and he replied: “Well if the policeman said I ignored the signal there is no use in denying it,” and that he also said that he was in hard luck and hoped that nothing would come of the case. Another witness was permitted, over the objection of defendant, to testify that the chauffeur said that, “he could not stop his machine in time to stop before the crossing of the path for people to cross.”

We think that it was reversible error to admit evidence of the declarations of or conversations with the chauffeur under the circumstances shown by the evidence in this case. “A declaration made concurrently with the act and constituting a part of the res gestae is admissible in evidence, but where it is a mere narration in regard to a transaction already passed, it does not bind the principal and cannot be proved.” Baier v. Selke, 211 Ill. 512, 518. Testimony of a conversation with the driver of a cab had just after the accident, in an action against the owner fov the negligence of-the driver, in which the driver saia it was all his fault, is not admissible. Springfield Consol. Ry. Co. v. Puntenney, 200 Ill. 9.

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

Reversed and remanded.


text:
    City of Chicago, Defendant in Error, v. Ruth Long, Plaintiff in Error.
    Gen. No. 18,743.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal corporations, § 867

      —what constitutes waiver of joint trial for violation of ordinance. In a prosecution against defendant for violation of an ordinance against the keeping of houses of ill fame or assignation, the fact that defendant’s ease was tried with cases against three women charged with being inmates and two men charged with being patrons of the house is not available to defendant where the jury was sworn separately in each case to try the issues and no objection was made to the jury being sworn to try the issues in the other cases.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, Presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Prosecution by the City of Chicago against Ruth Long based upon the violation by defendant of an ordinance of the City of Chicago prohibiting the keeping of houses of ill fame or assignation. From a judgment of conviction, defendant brings error.
    D. B. Brillow, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell and Ulysses S. Schwartz, of counsel.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Oscar Erikson, Appellee, v. James R. Ward, Appellant.
    Gen. No. 18,783.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Building and construction contracts, § 85

      —when vending suit in equity for mechanic’s lien no defense. In an action to recover a sum claimed to be due for labor and materials furnished under a building contract, defendant cannot urge as a defense that the previous filing of a bill' in equity, by the plaintiff for a mechanic’s lien for the amount claimed constitutes an election of remedies.
    2. Abatement and revival, § 34

      —when vending of suit in equity cannot be yleaded in abatement. A former suit pending in equity cannot he pleaded in abatement of a subsequent action of law. If the defendant in an action of law is entitled to any advantage from the pendency of a bill in equity, it is only by injunction from the equity court to stay the proceedings at law.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.

      Certiorari granted hy Supreme Court.
    Statement of the Case.
    Action by Oscar Erikson against James E. Ward to recover a sum claimed to be due from defendant to plaintiff for work and materials furnished under a building contract. Defendant filed an affidavit of defense to the whole of plaintiff’s demand and an itemized statement of set-off or counterclaim verified by his affidavit, wherein he stated that there was a certain sum due him from plaintiff. From a judgment in favor of plaintiff for $1,955, defendant appeals.
    Jambs E. Ward, for appellant.
    Mather & Hutson, for appellee.

      See Illinois Notes Digest, Vols. XI fo XV, same topic and section number.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

3. Election oe ¡remedies, § 3 —when court of equity may compel election. If after a bill in equity has been filed, so that the jurisdiction of the court has attached and the case is not one where a party may proceed, as in the case of a mortgage, in equity and at law at the same time, the court of equity will compel the party to make an election in which court he will proceed and the proceedings in the other court will be stayed.

4. Appeal and error, § 1705 —when objection not urged as ground for new trial is waived. On appeal from a judgment awarding a building contractor a recovery for labor and materials furnished under a building contract, an objection that the contractor had not obtained a city license is waived where such objection was not urged as a ground in defendant’s motion for a new trial.

5. Building and construction contracts, § 105 —when modification of requested instruction not error. In an action to recover for work and materials performed under a building contract, trial court’s modification of instructions asked by defendant by inserting the words “substantially” and “reasonable,” held not error.


author: Mr.. Presiding Justice "Baker

text:
    H. W. Baethke, Administrator, Appellee, v. The Aurora, Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 18,798.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Action by H. W. Baethke, administrator of the estate of John Barnowski, deceased, against The Aurora, Elgin & Chicago Railroad Company, a corporation, to recover damages for causing the death of deceased. From a judgment in favor of plaintiff, defendant appeals.
    A judgment on a directed verdict of not guilty was reversed in Baethke v. Aurora, E. & C. R. Co., 163 Ill. App. 30. The facts in the above case are stated in-the opinion in that case.
    Abstract of the Decision.
    1. Railroads, § 567*—when averments as to care of plaintiff not limited to the time of the injury. Where the counts in a declaration aver that the deceased while crossing the tracks of the defendant was in the exercise of due care for his own safety and that “through no fault of his own” he was struck and injured, etc., held, that the averments as to the exercise of care by the plaintiff was not limited to the time he was struck, so that the giving of an instruction, that if the jury found that plaintiff had made out his case as alleged in the counts in the declaration they should find the defendant guilty, was error.
    2. Appeal and error, § 1725*—collusiveness of decision on former appeal. A decision of the Appellate Court on a former appeal is not conclusive on the question of contributory negligence, where the question presented on the former appeal was whether plaintiff’s evidence would warrant the direction of a verdict for defendant and on the subsequent appeal the question is whether the verdict is so clearly against the evidence that the court should set it aside.
    Hopkins, Peppers & Hopkins, for appellant.
    Stephen Janowioz, William Q-. Wood and Cyrus J. Wood, for appellee.
   Mr.. Presiding Justice "Baker

delivered the opinion of the court.


text:
    Harry de Joannis, Appellee, v. Domestic Engineering Company, Appellant.
    Gen. No. 18,803.
    1. Appeal and error, g 775

      —when bill of exceptions becomes part of the record. A hill of exceptions becomes a part of the record by being signed and sealed by the trial judge.
    2. Appeal and error, g 903

      —when original bill of exceptions is incorporated in the transcript of record. The original bill of exceptions held properly incorporated in the transcript of the record by a stipulation of the parties, though the word “record” in the stipulation was used for and in the place of the words “transcript of the record.”
    3. Instructions, § 89

      —when instruction on question of preponderance of evidence omitting number of witnesses reversible error. An instruction given for plaintiff advising the jury that the preponderance of the evidence does not consist alone in the greater number of witnesses testifying and then enumerating certain matters to be considered by the jury, omitting the number of witnesses testifying for and against,aTield reversible error.
    Appeal from the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 9, 1914.
    Moses, Rosenthal & Kennedy, for appellant; Walter Bachbach, of counsel.
    Culver, Andrews & King, for appellee.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

      See Illinois Notes Digest, Yola. XI to XV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an action for an alleged wrongful discharge of the plaintiff from the employment of the defendant, in which plaintiff recovered six hundred and ninety dollars, and the defendant appealed.

Appellee’s contention that there is in the record no bill of exceptions is without merit. The record states that on a certain day there was filed in the cause a certain bill of exceptions in words and figures as follows, to wit, and then follows a bill of exceptions duly signed and sealed by the trial judge. This bill of exceptions became a part of the record by such signing, but prior to the enactment of the present statute the clerk was not permitted to incorporate into a transcript of the record the original bill of exceptions. The statute authorizes this to be done on stipulation, and in this case the parties by their attorneys stipulated that the original bill of exceptions might be incorporated into the “record” in lieu of a copy thereof. The bill of exceptions, as has been said, was already a part of the record. The word “record” in the stipulation was used for and in place of the words “transcript of the record,” and pursuant to the stipulation the clerk properly inserted the original bill of exceptions into the transcript of the record filed in this court.

The only controverted question in the case was whether the plaintiff, de Joannis, resigned, as defendant contended, or was discharged by defendant, as plaintiff contended. On this question four witnesses called by the defendant testified that plaintiff resigned and that his resignation was accepted by the president of the defendant corporation, and only the plaintiff testified that he was discharged. 'The Court, at the request of the plaintiff, gave to the jury the following instruction:

“The jury are instructed that the preponderance of evidence does not consist alone in the greater number of witnesses testifying to a particular fact or state of facts.
In determining upon which side the preponderance of the evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they are testifying, their conduct and demeanor while testifying, their apparent candor and fairness, their interest or lack of interest, if auy, in the result of the suit and the probability or improbability of the truth of their several statements in view of the evidence, facts and circumstances proved on the trial and from all these circumstances determine upon which side is the weight or preponderance of the evidence. ’ ’

In Lyons v. Joseph T. Ryerson S Son, 242 Ill. 409, an instruction for the plaintiff advised the jury that the preponderance in a case “is not alone necessarily determined by the number of witnesses,” and then follows an enumeration of the matters proper to be considered by the jury, omitting the number of witnesses testifying for and against, and it was said, p. 417: “In Chicago Union Traction Co. v. Hampe, 228 Ill. 346, and Elgin, Joliet and Eastern Railway Co. v. Lawlor, 229 id. 621, it was held that a similar instruction should not have omitted this element. In view of the fact that the appellee’s case rested very largely upon his own testimony and that more witnesses testified for appellant than for himself, this instruction might have misled the jury on this point.”

In this case appellee’s case rested entirely on his own testimony and against him, was the testimony of four witnesses.

We think that the giving of the instruction in question in this case was reversible error, and for that error the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Bertha Voegeli, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,824.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook Couuty; the Hon. Albbbt C. Babnes, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Action by Bertha Voegeli against Chicago City Railway Company to recover for personal injuries. Plaintiff claimed that the car on which she was a passenger stopped and most of the passengers got off; that she heard the conductor say: “This is as far as we go;” that she then got up, saying: “Then I have got to get off,” walked onto the front platform, took hold of the support or handle with her right hand, stepped down on the step, and as she was about to step to the ground the car suddenly started with such violence as to throw her to the ground, breaking the neck of her left femur. From a judgment in favor of plaintiff for two thousand five hundred dollars, defendant appeals.

      Abstract of the Decision.
    Carriers, § 476*—when evidence sufficient in action for injuries to passenger. In an action for personal injuries claimed to have been caused by the sudden starting of the car on which plaintiff was a passenger, as she was in the act of alighting, the evidence was held sufficient to sustain a verdict for plaintiff.
    James Q-. Condon and Watson J. Ferry, for appellant ; Leonard A. Busby, of counsel.
    Bichard J. Finn, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    John Heinz, Appellee, v. Knisely Brothers, Appellant.
    Gen. No. 18,838.
    1. Master and servant, § 125—ditty as to safe appliances. The master is bound to use reasonable and ordinary care and diligence in providing reasonably safe and sufficient means and appliances for the use of his servants.
    2. Master and servant, § 161

      —duty of master to inspect. The master’s duty to use reasonable care in providing safe appliances for the servant’s use is a continuing one, requiring him to use the same care to see that the appliances are kept in good condition while in use, and to that end to exercise reasonable care in supervision and inspection.
    3. Master and servant, § 166

      —when master hound to Tcnow of defects in appliances. The master cannot avoid responsibility by merely showing that he did not know of a defect in the appliances furnished, since it was his duty to know if it could be discovered by reasonable care and diligence.
    4. Master and servant, § 211

      —when master liable for negligence of coemploye. The master is liable for the negligence of a servant to whom he delegated the duty of furnishing or inspecting appliances and instrumentalities through which he carries on his business.

      5. Master and servant, § 211

      —what constitutes delegation to fellow-employe of duty to supervise. Where in the performance of certain work on the outer wall of a high building defendant’s employes were required to use a swinging seat or scaffold suspended by a rope from the roof, a coworker of plaintiff, who discovered a rope in the attic of the building, and in response to a question to defendant’s “inside foreman” or superintendent, was told to use it if it was all right, was held to have been delegated with the duty of furnishing and supervising the safety of the rope.
    6. Master and servant, § 447

      —when servant entitled to rely on care of master. The servant may assume that the master has discharged his duty to exercise reasonable care to furnish him with reasonably safe appliances, and has no duty of inspection to discover latent defects and dangers in such appliances which render his employment more than ordinarily hazardous.
    7. Master and servant, § 341

      —when servant does not assume risk of defective appliances. The servant is charged with notice of such defects in appliances as the exercise of ordinary care would make manifest to him, but he does not assume the risk of defects of which he has no knowledge and which he cannot discover by the exercise of ordinary care, and of which the master has, or ought to have, knowledge—so held where an employe was injured by the breaking of a defective rope.
    8. Master and servant, § 572

      —what inferences deducible from breaking of rope. Where a servant working on the outer wall of a high building on a swinging seat or scaffold, suspended by rope from the roof, was injured by the breaking of the rope, it was held that the jury might infer that the rope was not strong enough to withstand the strain put upon it from the fact that it broke.
    9. Master and servant, § 161

      —when inference that defect was discoverable by inspection justified. Where an employe of defendant working on a swinging seat or scaffold suspended by a rope was injured by the breaking of the rope, it was held that the jury might infer that the weakness of the rope was manifested by its “fuzzy” condition, and that such condition might have been discovered .by a proper inspection before the rope was used.
    10. Master and servant, § 161

      —what facts constitute notice of necessity for inspection. In an action by a servant to recover for injuries sustained on the breaking of a rope suspending a swinging seat or scaffold on which he was at work, it was held that the fact that the rope in question was found in an attic near a bottle of acid with a paper stopper was notice to defendant of the necessity for a careful inspection of the rope, especially since its rules provided that: "Acid must not be put in the same package with ropes in going to and from buildings and extreme care is urged to keep them from coming in contact.”

      11. Master and servant, § 826

      —findings implied from general verdict. In an action by a servant for injuries sustained on the breaking of a rope suspending a scaffold on which he was employed, it was held that a verdict for plaintiff implied a finding that by such an inspection as defendant, in the exercise of reasonable care, should have made of the rope, under the circumstances disclosed by the evidence, it was provable that the defect in the rope would have been discovered; that the failure to make such inspection was negligence, and that such negligence was the proximate cause of plaintiff’s injury; and such finding was held to have been sustained by the evidence.
    12. Damages, § 124

      —when verdict not excessive. A verdict for $13,200 in favor of an employe was held not to be excessive for injuries, due to the breaking of a rope suspending the scaffold on which he was at work, precipitating him a distance of seventy-five or eighty feet to the ground below, resulting in a comminuted fracture of the right leg at the knee, a fracture of the right wrist, cuts on the head and face, injuries to his back and one ankle, requiring the performance of three operations, and preventing him from working more than two days in fifteen months enabling him to work only two days in fifteen months.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Rehearing denied March 23, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. The defendant corporation was employed by Marshall, the owner of a building, to open a flue in the north wall of the building which had become obstructed. Defendant sent four men to do the work, two journeymen and two helpers, plaintiff, Heinz, and another. They spent two days attempting to locate the obstruction and concluded that it was between the first and second floors. They so reported to Marshall and he ordered them to cut into the wall from the outside. They found a seven-eighths inch rope, blocks apd tackle in an attic on the ninth floor of the building and the janitor gave them permission to use them. Martin, one of the journeymen, who was in charge of the men, called up Hogan, the inside foreman of the defendant, told him that Marshall had ordered them to cut into the wall; that they had found a rope and tackle; that the rope looked good to him and asked if he should use it. Hogan replied: “If it is all right use it.” The men then took the rope and blocks to the roof, straightened out the rope, rove it through the blocks, hooked the upper block into strands of wire which passed around the chimney and let down the lower block and rope on the outside of the wall. A seat was attached to the block, on which a workman sat while cutting into the wall. All of the men worked in turns three days cutting into the wall, and then concluded that the obstruction was between the fifth and sixth floors and raised the seat to that place. The fourth day Martin and plaintiff worked part of the day cutting into the wall at the new place. Plaintiff resumed the work next day, found the obstruction and told Martin, who was on the roof of the building, and asked him to come down to the next building, that he.had found the obstruction. Martin went onto the roof of the five story building adjoining the Marshall building on the north and saw that the rope “was all fuzzy” at a point about as high as plaintiff could reach while sitting on the seat. He called out to plaintiff that the rope was 1 £ all fuzzy there. ’ ’ Plaintiff put up his hand and then told Martin to throw him the slack end of the rope. Martin did so and plaintiff caught the rope, but as did so the rope parted and he fell to the ground, a distance of seventy-five or eighty feet, and received the injuries for which he sued. In an action on the case against the defendant corporation for negligence, plaintiff had judgment for $13,200, and the defendant appealed.
    George W. Miller, for appellant.
    James L. Bynum, for appellee; Bernhardt Frank, of counsel.

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

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

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

   Mr. Presiding Justice Baker

delivered the opinion of tbe court.

The master is bound to exercise reasonable and Ordinary care and diligence in providing reasonably safe and sufficient means and appliances for the use of his servants. This is a continuing duty, requiring the master to use the same care to see that the appliances are kept in good condition while in use and to that end to exercise reasonable care in supervision and inspection. 'The master cannot avoid responsibility by merely showing that he did not know of a defect. It is the duty of the master to know, if it can be discovered by reasonable care and diligence. The master must answer for the negligence which may be committed by any servant to whom he delegates the duty of furnishing or inspecting the appliances and instrumentation through which the master carries on his business. If in this case the defendant could have known of the defect in the rope before it broke, by the exercise of ordinary care and prudence, it should be held to the same responsibility as though it actually did know of it. Chicago & E. I. R. Co. v. Kneirim, 152 Ill. 458; Whitney & Starrette Co. v. O’Rourke, 172 Ill. 177; Consolidated Coal Co. of St. Louis v. Haenni, 146 Ill. 614; Missouri Iron Co. v. Dillon, 206 Ill. 145.

We think that from the evidence the jury might properly find that the duty of furnishing and supervising the rope and tackle was delegated by the defendant to Martin. Hogan, the inside foreman of defendant, told Martin to use the rope in question if it was all right, and the defendant was not relieved from the duty to exercise reasonable care in providing and keeping in repair a rope furnished to suspend the seat on which plaintiff was compelled to sit to perform the work he was directed to perform for the defendant by the delegation of that duty to Martin. Chicago & E. I. R. Co. v. Kneirim, supra.

The servant has the right to assume that the master has discharged his duty to use reasonable care to furnish him with reasonably safe appliances, and has no duty of inspection to discover latent defects and dangers in such, appliances which render his employment more than ordinarily hazardous.

“He is charged with notice of such defects in appliances as the exercise of ordinary care would make manifest to him, but he does not assume the risk of defects of which he has no knowledge and which he cannot discover by the use of ordinary care, and of which the master has, or ought to have, knowledge.” Chicago & E. I. R. Co. v. Heerey, 203 Ill. 492, 497, 498; Missouri Iron Co. v. Dillon, supra.

From the fact that the rope broke, the jury might properly find that it was not strong enough to withstand the strain put on it, and that the weakness of the rope manifested itself by the “fuzzy” condition that Martin testified he saw in the rope at a point about as high as plaintiff could reach, and that plaintiff testified he saw when Martin called to him that the rope was “fuzzy” above the pulley and, we think, might properly further find not only that the inherent weakness of the rope was manifested by its “fuzzy” condition, but such condition would have been discovered if a proper inspection had been made before using the rope. Martin testified that when they rove the rope through the pulleys he looked at it, but did not finger the rope as it passed through bis bands for the purpose of seeing whether he could feel or detect anything the matter with the rope. Bennett testified that he and Ley were on the roof when the rope was straightened out; that the rope was already in the blocks and all they had to do was to straighten it out. Ley testified that he did not know who put the rope through the blocks. Martin testified that he examined the rope the next day after the accident and found that one foot of it at the place where it broke was rotten, and that he could tell from an examination of the rope that it was eaten up with acid; that he went to the attic where the rope was first found and there saw near the place where the rope was found a bottle of acid with a paper stopper in it. Miles, the janitor of the Marshall building, testified that the rope and acid had been all in a pile together in the attic of the building for three or four months. The rule of the defendant provides that: “Acid must not be put in the same package with ropes in going to and from buildings and extreme care is urged to keep them from coming in contact.” The fact that the rope in question was found near a bottle of acid with a paper stopper was notice to defendant of the necessity of a careful inspection of the rope.

The finding of the jury, implied by their verdict, is that by such an inspection as the defendant in the exercise of reasonable care should have made of the rope, under the circumstances shown by the evidence, it is probable that the defect in the rope would have been discovered; that the failure to make such inspection was negligence and that such negligence was the proximate cause of plaintiff’s injury. On the evidence in the record we do not think that such finding should be disturbed.

We find no reversible error in the rulings of the court on questions of evidence or instructions.

Plaintiff sustained a comminuted fracture of the right leg at the knee, a fracture of the right wrist, cuts on the head and face and injuries to his back and one ankle. He was injured December, 1910, and the case was tried in February, 1912. Operations were performed soon after the injury, and February 19 and November 11, and up to the time of the trial he had only worked two days. In view of the very serious nature of plaintiff’s injuries and the consequences up to the time of the trial and probable consequences in the future, we cannot say that the damages awarded him are excessive.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    People ex rel. Edwin A. Olson, Appellee, v. Robert M. Sweitzer, County Clerk et al. Appeal of Lewis Rinaker. People ex rel. Edwin A. Olson, Appellee, v. Robert M. Sweitzer, County Clerk et al. Appeal of Samuel A. Ettelson. People ex rel. Edwin A. Olson, Appellee, v. Robert M. Sweitzer, County Clerk et al. Appeal of Robert M. Sweitzer, County Clerk.
    Gen. No. 18,852.
    Gen. No. 18,853.
    Gen. No. 18,854.
    1. Mandamus, § 6

      —when does not lie. Mandamus lies to do what ought to be done, not to undo what ought not to have been done.
    2. Mandamus, § 40

      —when does not lie to require change of order of names of candidates on ballots. Where the county clerk on filing the petitions for nomination for State’s Attorney on the republican ticket, under the Primary Election Act, indorsed the time of filing on each petition, and published a list stating the order in which the petitions were filed, and the order in which the names of candidates would appear on the ballots, mandamus does not lie on behalf of one of the candidates to require the clerk to place his name first on the ballot on the ground that his petition was presented first.
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard and Hon. Duane J. Carnes, Judges, presiding.
    Heard in this court at the October term, 1912.
    Reversed.
    Opinion filed March 9, 1914.
    Statement by the Court. Relator Olson filed his petition in the Circuit Court, March 16, 1912, against the appellants and certain other defendants for a mandamus.

      The petition avers that the relator and the defendants other than Sweitzer, the county clerk, were republican candidates for nomination for State’s Attorney of Cook county at the primary election of April 9, 1912; that relator’s petition was the first petition presented to the County Clerk on February 9, 1912, the first day that petitions could be filed under the act relating to primary elections, and the clerk was requested to indorse the petition as filed before the filing of the petitions of the other candidates for said office, but that he indorsed the petition of Einaker as the first filed, the petition of Ettelson as the second filed, and indorsed the petition of the relator as filed after the petitions of Einaker, Ettelson and four other candidates had been filed; that the county clerk had published a list purporting to show the order in which petitions for nomination on the republican ticket were filed, and that on such list the name of the relator appears as the seventh in order among the petitions filed for nomination as State’s Attorney.
    The prayer of the petition is that a writ of mandamus issue directing Sweitzer, as county clerk, to correctly indorse on the petition of relator the time of the filing thereof, so that it should have precedence in the matter of the time of filing over the petitions of the other candidates, to the end that on the ballot the name of the relator should appear ahead of and preceding the names of the other candidates for the office of State’s Attorney. Einaker and Ettelson demurred to the petition, their demurrers were overruled and an order entered directing Sweitzer, as county clerk, to indorse the petitions in accordance with the prayer of the petition. From this order Einaker, Ettelson and Sweitzer, as county clerk, took separate appeals, which have been consolidated for hearing.

      Gustav E. Beerly, for appellant Lewis Binaker; Wells M. Cook and Nathan W. MacChesney, of counsel.
    Chipman & Jackson, for appellant Samuel A. Ettelson.
    Alfred S. Austrian and Edmund D. Adcock, for appellant Bobert M. Sweitzer.
    Edwin A. Olson, per se.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

‘ ‘ The writ of mandamus lies to do what ought to be done, not to undo what oug’ht not to have been done.” Merrill on Mandamus, sec. 42; Sweet v. Conley, 20 R. I. 381; W. C. T. Co. v. Marshall, 49 Tenn. 121; People ex rel. Seeberger v. Rose, 164 Ill. App. 159.

In Ex parte Nash, 19 Q. B. 92, 69 E. C. L. 92, Lord Campbell said: “The writ of mandamus is most beneficial ; but we must keep its operation within bounds, and not grant it at the fancy of all mankind. We grant it when that has not been done which a statute orders to be done; but not for the purpose of undoing what has been done. We may on application for a mandamus entertain the question whether a corporation, not having affixed its seal, is bound to do so; but not the question whether, when they have affixed it, they have been right in doing so.”

Here the county clerk had acted in a matter committed by law solely to him before the petition was filed. He had indorsed on each petition the time it was filed and prepared and published a list stating the order in which petitions for nominations on the republican ticket for State’s Attorney had been filed, and the writ did not lie to compel him to undo what he had done.

We think that the demurrers to the petition should have been sustained, and the judgment will therefore be reversed, but as a mandamus would now be unavailing, the cause will not be remanded.

In each case the order will be that the judgment be reversed.

Reversed.


text:
    The People of the State of Illinois, Defendant in Error, v. Ben Goldberg, Plaintiff in Error.
    Gen. No. 19,436.
    (Not to be reported in full.)
    Abstract of the Decision.
    Labceny, § 17

      —when failure to prove venue of offense fatal. On an information in the Municipal Court of Chicago charging larceny as bailee, where the evidence in the record wholly fails to show that the offense was committed in Chicago, a judgment of conviction cannot be sustained.
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Prosecution by The People of the State of Illinois against Ben Goldberg on information in the Municipal Court of Chicago charging larceny as bailee. From a judgment of conviction and sentence to pay a fine of one hundred dollars, defendant brings error.
    Joseph D. Daly, for plaintiff in error; John T. Fitzgerald, of counsel.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley, of counsel.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


author: Mr. Pbesiding Justice Baker

text:
    The People of the State of Illinois, Defendant in Error, v. R. B. Smith, Plaintiff in Error.
    Gen. No. 19,503.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Disobdebly house, § 2

      —what evidence inadmissible in prosecution for keeping. In a prosecution for maintaining a disorderly house, testimony of witnesses that they had not seen evidence that defendant’s house was being run for immoral purposes, or that fornication or drinking was carried on there, is incompetent and properly excluded.
    2. Cbiminal law, § 122

      —when evidence of reputation inadmissible. In a prosecution for keeping a disorderly house, evidence in behalf of defendant showing his good reputation for truth and veracity is inadmissible where not attacked by the prosecution.
    Error to the Municipal Court of Chicago; the Hon. Rueus F. Robinson, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Prosecution by The People of the State of Illinois against B. B. Smith on information in the Municipal Court of Chicago charging him with keeping a common, ill-governed disorderly house, kept for the encouragement of drinking and fornication. From a judgment of conviction, defendant brings error.
    G-eeting, Potts & Van Dellen, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Zach Hofheimeb, of counsel.

      Seo Illinois Notes Digest, Vote, XI to XV, same topic and section number.

   Mr. Pbesiding Justice Baker

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Everett C. Ellison, Plaintiff in Error.
    Gen. No. 19,586.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Larceny, § 41

      —necessity for finding of value. Whenever the measure or kind of punishment is dependent upon the value of the property stolen, the jury, or court, when the trial is by the court, must find that value as part of the verdict or finding, or a conviction cannot be sustained.
    2. Larceny, § 41

      —effect of failure to find value. On an information charging defendant with stealing a watch of the value of fourteen dollars, tried by the court on the waiver of a jury, a conviction cannot be sustained, where the court failed to find the value of the property, since under the statute the extent of the punishment would depend upon whether the value of the property was over or under fifteen dollars.

      Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Prosecution by The People of the State of Illinois against Everett C. Ellison on information in the Municipal Court of Chicago charging him with the stealing of a watch valued at fourteen dollars. A jury was waived and the court found him guilty, sentencing him to imprisonment for six months and to pay a fine of two hundred dollars. From the judgment of conviction, defendant brings error.
    James O. O'Brien, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley, of counsel.

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

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

3. Labceny, § 42 —when fine excessive. Under a.statute prescribing imprisonment in the county jail, or other named places, and a fine of “not exceeding one hundred dollars" where the value of the property stolen is under fifteen dollars, the imposition of a fine of two hundred dollars is erroneous.


text:
    Isabella E. Kuhn, Appellee, v. William J. Kuhn, Appellant.
    Gen. No. 20,120.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. WrwDES, Judge, presiding.
    Reversed.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Bill by Isabella E. Kuhn against William J. Kuhn, Rosie E. Phillips, Adolph Phillips, Olaf E. Ray, Trustee, and George Goucher, to restrain complainant’s husband, defendant Kuhn, from collecting rents on certain property, or notes given to secure the purchase price of certain lands, which property complainant claimed was held by her husband and herself as tenants in common, and further to restrain defendant Kuhn from using vituperative or threatening language or attempting violence to or towards complainant. A temporary injunction was issued against defendant Kuhn, without notice, from which he appeals.
    Hebel & Haft, for appellant.
    Thomas J. O’Hare, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

1. Injunction, § 162*—when issuance of temporary injunction without notice improper. On a bill by a wife to restrain her husband from collecting rent on certain realty, or collecting notes given to secure the payment of certain realty owned by complainant and defendant as cotenants, there being no allegation that defendant was insolvent nor any prayer for partition, and no allegations tending to show that defendant could have done anything which would have put complainant in a worse position if notice of the application for a temporary injunction had been given him, it was held error to grant a temporary injunction without notice.

2. Injunction, § 180*-—when Mil multifarious. A bill by a wife seeking to restrain her husband from collecting rents on property held in common or collecting notes given to secure the purchase price of certain realty, and from using vituperative or threatening language or attempting violence to or towards complainant, is multifarious.