text:
    Michael J. Cahill v. William H. Dellenback.
    Gen. No. 13,625.
    1. Instructions—effect of assuming proof of fact in issue. It is not error for a court to assume by his instructions the existence of a fact which is established by the evidence without contradiction. Nor is it ground for reversal in such case that the court in its instructions stated that the fact was proved.
    2. . Set-off—when defense of, does not lie. A claim against a partnership cannot be set off against a claim of an individual member thereof if at the time of the arising of the individual claim the partnership had been dissolved, and this notwithstanding the fact that the creditor of the partnership had no notice or knowledge of the dissolution.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook County; the Hon. George A. Carpenter, Judge,' presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 9, 1908.
    Dickinson, Morrison & Rost, for appellant.
    M. J. Riese, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

William II. Dellenhack, the plaintiff below and appellee here, sued, before a justice of the peace, Michael J. Cahill, the defendant below and appellant here, for legal services performed by him at the request of Cahill, from April 10, 1899, to June, 1902, and on October 21, 1902, he obtained a judgment for $110. Cahill appealed to the Circuit Court, where the cause was tried de novo before a jury, wdrich rendered a verdict for $1Y7A5. A motion for a new trial and a motion in arrest of judgment were overruled by the court and the defendant appealed to this court and has assigned numerous errors based on his defense below.

The defense did not attack the amount of the bill for services nor deny that the services were rendered by Dellenback for Cahill, but consisted of an alleg’ed set-off, which was mostly made up of a claim for printing a professional card of a firm consisting of the plaintiff, Dellenback, and John E. Newcomer, doing business under the name of New'comer and Dellenback for a period from 1893 to 1900, in two papers published by Cahill, called the Catholic Pilot and the Home Light. The claim also comprised some legal advertising done for said firm during that time.

It appeared in evidence and was uncontradicted, that said firm of Newcomer and Dellenback was formed by oral contract for the practice of law, to continue at will, in August, 1893, and that it ceased about January 1, 1899. At that date Newcomer became an assistant state’s attorney of Cook county.

The trial judge excluded (according to the language of the bill of exceptions) all evidence of said set-offs prior to January 1, 1899, to which ruling defendant excepted. He also “ruled out and excluded all evidence concerning said set-offs against said firm subsequent to said date, but admitted defendant’s evidence of alleged set-offs as against plaintiff individually doing business under said firm name and style only, ruled that it made no difference whether defendant actually had notice of or knew the fact of such alleged dissolution or not, and afterwards instructed the jury that said firm was dissolved on or about the fore part of January, A. D. 1899, as appears elsewdiere herein, to which rulings and acts of the court and each of them defendant excepted.”

The instruction referred to in this recital is contained in the bill of exceptions, and was given of the court’s own motion. It is as follows:

“The court instructs the jury that under the evidence in this case the partnership known as Newcomer and Dellenback was dissolved January 1, 1899.”

Of course were the proposition one which the evidence showed was in good faith in dispute between the parties, it would not have been proper for the court so to instruct the jury; but there was no ground in the evidence whatever, so far as the bill of exceptions (which professes only to show the “tendency” of the evidence) shows, for any contrary contention.

The bill of exceptions says: “Plaintiff testified tending to prove that he and John P. Newcomer formed an oral partnership contract for the practice of law, to continue at will, commencing in August, A. D. 1893, and ceasing about the first of January, 1899, and that about this latter date said Newcomer became an assistant state’s attorney of the county. * * """

“Plaintiff further testified tending to prove that he used the firm name of Newcomer and Dellenback after January 1, A. D. 1899, in appearing for said Cahill in said court of record suit commenced thereafter, entitled Pyan v. Cahill, Superior Court general number 204,983, and that said firm name was used at the request of defendant. * * *

“Defendant testified tending to prove that he received no notice and had no knowledge of said dissolution prior to the commencement of this suit. * * *

“Defendant further testified tending to prove that said firm name of Newcomer and Dellenback continued to appear on the door of the office which said firm had occupied and where plaintiff continued to do business, during all of the times covered by the items contained in said bill of particulars and sets-off and each of them, and that said Newcomer continued to come there occasionally since said fore part of January, A. D. 1899. and afterwards. * i:~ * Defendant further testified on cross-examination tending to prove thaf shortly after January 1, A. D. 1899, he printed letter heads for plaintiff in this case, containing the name of plaintiff only. Said letter head was:

William H. Dellenback,

Attorney-at-Law.

Office, etc.

It will be seen that there was no denial or ground for denial by the defendant that the partnership ceased to exist January 1, 1899, but only that defendant knew of it. It has been repeatedly held by the Supreme Court of Illinois, that to assume in an instruction a fact as proven which is established by the evidence without contradiction, is not error, and although we do not find in the decisions of that court the statement made that a direct instruction as to the existence of a fact is ever proper, the following paragraph from the Encyclopaedia of Pleading and Practice, vol. 11, p. 132, title Instructions, shows clearly and accurately the situation:

“Where the evidence on a point is clear and conclusive and is not contradicted by other evidence, it is never a ground for reversal that the court in its charge assumes the existence of such fact or states that it is proved, no matter what view the reviewing court may take of the propriety of so doing. According to some decisions such assumption is harmless error, if improper. According to others, it is proper for the court to do so.”

The contention of the defendant really is, not that the partnership was in existence after January 1, 1899, but that his rights ought not to be affected by the fact of its dissolution because, as he says, he did not know of it. But this, the trial judge ruled, made no difference, holding that the question as to the right of the plaintiff to his alleged claim, and of the defendant to his alleged set-offs, depended on the real facts and not on the defendant’s knowledge of them. In this he was plainly right, and it followed that he was right in excluding as immaterial all evidence concerning set-offs of Cahill against the firm of Newcomer and Dellenback. Claims which the defendant had against that firm had absolutely nothing to do with the claims which Dellenback individually had against Cahill for services performed individually for him after the partnership had ceased, and could not be set off against them. Hilliard v. Walker, 11 Ill., 644; Coates v. Preston, 105 Ill., 470.

This the appellant argues is unjust, because the Limitation Act (chapter 83, section 17, of the Revised Statutes) provides that “a defendant may plead a set-off or counterclaim barred by the Statute of Limitation while held and owned by him to any action the cause of which was owned by the plaintiff or person under whom he claims, before such set-off or counter-claim was so barred, and not otherwise”; and he—relying on that provision and the assumption (contrary to the fact) v'hich he made, that Dellenback was still a member of the firm of.Newcomer and Dellenback after 1898, while he (Dellenback) was furnishing him (Cahill) professional services—allowed the claims accruing to him before 1899 against the firm of Newcomer and Dellenback to become outlawed, so that he is without remedy.

But on the assumption that all the matters o-f fact involved in this contention were true and proven, it could make no difference to the rights of the defendant. If he relied on this provision of the statute in neglecting to enforce his claims against the firm of Newcomer and Dellenback, he was doing so at his own risk during all the time of the delay, that the partnership had actually ceased to exist.

The essential matter is that Dellenback actually is claiming in his own right, and the alleged set-offs actually are against a firm of which Dellenback was once a member. Dellenback could not be estopped from denying the validity of that set-off by any such evidence as that Cahill was not notified of the dissolution, or that the firm name was not erased from the door of the office where Dellenback continued to do business, or that Newcomer came to the office occasionally.

There is no reversible error in the judgment of the Circuit Court, and it is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    E. S. Hotchkiss et al. v. The Vanderpoel Company.
    Gen. No. 13,631.
    1. Transcript op record—what not part of, without incorporation in bill of exceptions. An affidavit is not part of the record proper unless preserved by a bill of exceptions.
    2. Practice—effect given to inartificial certificate to bill of exceptions. If the certificate to a bill of exceptions is sufficient to indicate the purpose of its presentation and filing, its loose language will be ignored.
    3. Practice—effect of omission in bill of exceptions with respect to certificate that instructions shown were all given. A bill of exceptions is not sufficient to preserve for review alleged errors in the giving of instructions where it does not show or certify by whom the instructions given were requested or that they were all the instructions given.
    4. Appeals and errors—construction of particular method of perfecting appeal. Held, that an interpleader and a defendant in attachment did not upon the record perfect a joint appeal; further, that no appeal by the interpleader was perfected but that an appeal by the defendant in attachment was perfected.
    5. Appeals and errors—when bond, given upon appeal informal. Where several parties join in praying an appeal and it is allowed on condition that they execute a bond, the condition must be literally complied with or the appeal will be defective as to those who did not join therein, and such an appeal will likewise be defective as to those who did join therein.
    6. Instructions—what essential to review. In order to review the action of the court in refusing instructions, exceptions must be preserved to the action of the court in that respect.
    7. Jurisdiction—what amounts to general appearance. Successfully moving for a bill of particulars, participating in the trial on the assessment of damages and moving to set aside a verdict, each amounts to a general appearance.
    Attachment. Appeal from the Circuit Court of Cook County; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 9, 1908.
    II. L. Thackaberry, for appellants.
    Blum & Blum, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

In this case the Vanderpoel Company sued E. S. Hotchkiss, one of the appellants, in the Circuit Court, commencing the suit by attachment and alleging in the affidavit for the attachment made by its agent that Hotchkiss was indebted to said company, a corporation, in the sum of $670.81, for merchandise sold and delivered by said company to Hotchkiss and for work done and labor performed on certain machinery by said company for Hotchkiss, and that affiant had good grounds to believe and did believe that said Hotchkiss had within two years fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder and delay his creditors, and had within two years fraudulently concealed or disposed of his property so as to hinder or delay his creditors, and was about fraudulently to conceal, assign or otherwise dispose of his property or effects so as to hinder or delay his creditors.

The attachment writ directed also that the defendant Hotchkiss and one Edward S. Barber be summoned to the October term, 1906, of the Circuit Court, the said Barber being named as garnishee. The writ was returned not found as to Hotchkiss, or any property of Hotchkiss on which to levy, but was served on said Barber as garnishee on September 24, 1906.

There was then existing unsatisfied in the Superior Court of Cook county a decree in chancery in favor of said Hotchkiss against said Barber for $434.40, entered September 19, 1906, and October 13, 1906, the chancellor in the Superior Court entered an order in the said cause, reciting that the defendant Barber stated that he had been summoned as a garnishee in the Circuit Court and that he was ready to pay the amount of the decree, and ordering him to pay said amount to the clerk of the Circuit Court on or before Monday, October 15, 1906, to be held by said clerk until the Circuit Court entered an order to pay the money to the person entitled to the same.

The Circuit Court in the case at bar entered an order October 18, 1906, that the clerk should receive the money and hold it “ in trust for whomever it should be found was lawfully entitled to it upon the final determination of the cause.”

October 29, 1906, the Vanderpoel Company filed a declaration in assumpsit against E. S. Hotchkiss.

November 14, 1906, a notice and affidavit were filed by M. L. Thackaberry entitled in the cause “Vanderpoel Co. v. E. S. Hotchkiss.” The notice was directed to “Joseph W. W. Lattimer, attorney for the plaintiff,” and was served on him on November 13, 1906. It was signed by M. L. Thackaberry, attorney for defendant. It notified Lattimer that on the succeeding day he should ask a judge of the Circuit Court for a rule on the clerk of said court to turn over to him (Thackaberry) the money theretofore deposited with said clerk as per the order of the Superior Court of Cook county in the case of Hotchkiss v. Barber, etc., and in support of said motion should offer the affidavits annexed and an assignment of “the said decree or judgment” to him (Thackaberry). An affidavit attached was made by Hotchkiss, and was to the effect that he had on the 22d day of September, 1906, sold and assigned to Thackaberry the judgment in question.

Another affidavit was by Thackaberry to the effect that he was “the owner and holder of the assignment of the judgment,” and that Hotchkiss had no interest in it.

On November 14th the following order was entered by the Circuit Court:

“On motion of M. L. Thackaberry it is ordered that the clerk of this court, James J. Gray, pay over to M. L. Thackaberry the sum of money turned over and delivered to him, said clerk, by order of Judge Gary in the case of Hotchkiss v. Barber, general number 253204 in the Superior Court of Cook county.”

November 17, 1906, in pursuance of notice theretofore given, the plaintiff, the Vanderpoel Company, entered a motion to set aside this order. Certain affidavits appear in the record attached to said notice, but there is nothing to show that they were ever brought to the attention of the court or are a proper part of the record. The same may be said of an affidavit of Lattimer to the alleged insolvency of Hotchkiss, which appears in the common law record, without further comment on it, as filed on ¡November 22, 1906.

There is not in the record even anything to show that this motion to vacate the order of November 14th was ever disposed of, but on December 7, 1906, M. L. Thackaberry entered his appearance and that of Hotchkiss in the following form:

“I hereby enter my appearance in the above entitled cause for the purpose of having the money heretofore deposited with the clerk of said court to the amount of four hundred and fifty-one dollars and eighty cents turned over and delivered to me, the undersigned, as the sole and only owner of said sum by virtue of the decree heretofore entered in the Superior Court of Cook county in the case of E. S. Hotchkiss v. Edward S. Barber, general number 253204, and the special appearance of E. S. Hotchkiss as to the attachment issue only.

M. L. Thackaberry.”

A notice is next found in the record of a motion to be made by the plaintiff for leave to amend the affidavit of attachment and for a rule on -Thackaberry to file “his inter-pleader.” ¡No order appears on either of these matters until after the following described pleadings:

December 8th Thackaberry “comes and interpleads as by statute * * * provided,” etc., filing a verified statement that the money in the hands of the clerk belonged to him, and praying “judgment if said money ought to be detained by virtue of said writ, etc.”

On the same day an amended affidavit for the attachment was filed by the plaintiff, executed by the same agent as before and containing the same allegations, made, however, directly and not on “belief.”

Also on the same day a verified plea was filed in behalf of E. S. Hotchkiss “by M. L. Thackaberry, his attorney,” praying judgment of the writ of attachment on the ground that its allegations as to the disposition of the defendant’s property were not true.

December 12, 1906, the plaintiff filed a plea or answer to the “interpleader” of Thackaberry, denying thatThaclcab crry was the owner of the money involved, and asserting that Hotchkiss was such owner, and also a general demurrer to the plea in abatement filed by Hotchkiss to the writ of attachment.

On the 13th of December, 1906, an order was entered by the Circuit Court (a) allowing a substitution of attorneys for the plaintiff, (b) allowing a restoration of the declaration lost from the files, (c) sustaining the demurrer to the defendant’s plea of abatement, (d) granting leave to amend the affidavit “herein” (presumably meaning the affidavit for attachment) instanter, (e) ordering on motion of the defendant’s attorney the plaintiff to file a bill of particulars “herein” instanter, (f) ordering on motion of plaintiff’s attorney that “the default of the defendant Hotchkiss be taken and entered of record for want of a plea to the plaintiff’s affidavit of merits filed in said cause” (sic), “Wherefore the plaintiffs ought to have and recover of and from said defendant its damages sustained herein by reason of the premises” (sic), (g) reciting that “reference is had to a jury to assess the plaintiff’s damages as to the defendant E. S. Hotchkiss heretofore defaulted,” (h) reciting that issues have been joined as to the interpleading and attachment proceedings, (i) ordering that a jury come, (j) reciting that a jury came and were sworn “well and truly to assess the plaintiff’s damages herein as to the defendant E. S. Hotchkiss, heretofore defaulted, as well as to try the issues joined herein as to the interpleading and attachment proceedings, and a true assessment and verdict render according to the evidence,” and, (k) permitting the jury to separate.

A bill of particulars, called in the transcript of the record “certain statements,” was filed on December 13tli, presumably in compliance with the order just recited. It purported to show a statement of account, with a balance of $670.81 between the Vanderpoel Company and E. S. Hotchkiss, and gave in detail the items of material and labor making up the credit entry of the Vanderpoel Company in the account, on a billhead headed, “The Vanderpoel Company * * * sold to Graham & Hotchkiss Stone Co.” It does not appear in the bill of exceptions, but in the common law record.

By a bill of exceptions filed February 14, 1907, it appears that the trial before the jury continued for two days, and that the evidence adduced by each side pertained to all and each of the issues involved in the case—that is, the existence of indebtedness from the defendant to the plaintiff, the amount of that indebtedness, the existence of grounds for attachment, and the rights of the interpleader, Thackaberry, to the money deposited with the Clerk of the Superior Court. Thus as to the first two of these issues, Otto Paster, the manager of the plaintiff company, was produced as a witness on behalf of the plaintiff. He testified to furnishing goods to the Graham & Hotchkiss Stone Co. on Hotchkiss’ order, and the admissions of Hotchkiss as to the amount due from him to the plaintiff company. He was cross-examined by Mr. Thackaberry as to these and as to alleged defects in the machinery furnished. He was also cross-examined by Thackaberry as to why the detailed statement was made out as though the machinery had been sold to the Graham & Hotchkiss Company, and as to Graham’s relations with Hotchkiss.

It appears by the bill of exceptions that after the close of all the evidence, “the interpleader” (Thackaberry) “moved the court to instruct the jury to find the issues for the defendant and interpleader,” but neither the instruction itself nor any action on it appears.

The original bill of exceptions recites also that “the inter-pleader requested the court to give the following instruction,”. and then gives nineteen instructions, which are marked “given.” Then follows one in these words, marked: (“Defendant; On question of indebtedness being in default, refused) .”

“The court instructs the jury that it is incumbent upon the plaintiff to prove his case by a preponderance or greater weight of the testimony, and unless the jury believe from the evidence that the plaintiff has so proved all material allegations of his declaration, they must find the issues for the. defendant.”

Then there are three others marked “refused.”

There is no certificate that all the instructions given are produced in the bill of exceptions, nor any statement further than that given above at whose instance they were given.

The jury on December 15, 1906, as the common law record shows, returned three verdicts; one finding “the issues as to the attachment for the plaintiff Vanderpoel Company”; one finding “the issues as to the interpleader for the plaintiff”; and one, “We, the jury, find the issues for the plaintiff and assess the plaintiff’s damages at the sum of six hundred and seventy and 81-100 dollars.”

As the common law record also shows (the bill of exceptions in the transcript originally filed herein being silent on the matter), “The cause coming on January 5, 1907, to be heard upon the motion for a new trial heretofore filed herein by M. L. Thackaberry, interpleader, as to the inter-plea and attachment issues and upon the motion of defendant to set aside the verdict against him,” the said motions were denied, and it was “further ordered and adjudged that the attachment herein be and the same is hereby sustained and that the plaintiff have and recover from the defendant E. S. Hotchkiss the sum of $670.81 as found by the verdict herein in favor of plaintiff and its costs, and that general and special execution issue.” And it was “further ordered and adjudged by the court, that the plaintiff have and recover the money involved in the interplea herein, and that the said money held by the clerk of this court be paid to the plaintiff or its attorneys, Messrs. Blum & Blum, and thereupon rendered (sic) on said judgment, and that the plaintiff recover from the said interpleader M. L. Thackaberry its costs on such interplea as by law provided, and that the clerk tax such costs and execution issue.” The order as it appears in the common law record then thus concludes:

“Exception by defendant and interpleader and same are overruled by court. Motion in arrest of judgment by defendant and interpleader, which motion is denied and to which ruling defendant and interpleader except. Appeal prayed by defendant and interpleader to Appellate Court and allowed upon filing an appeal bond in the sum of one thousand dollars to be approved by court within twenty days and bill of exceptions to be presented within forty days.”

We have been thus detailed and literal in the statement of this somewhat remarkable record, in view of the questions on it which we are called on by the motions and arguments of counsel in this court to decide.

On January 5, 1907, an appeal bond was filed in the Circuit Court for $1,000, which was executed by E. S. Hotchkiss and Milton 1. Thackaberry and The Title Guaranty and Surety Company. Ho description or distinction of the capacity in which they executed the bond is shown either in the body of the same or in connection with the signatures. The condition of the bond, however, is:

“That whereas the said Vanderpoel Company did on the 5th day of January, A. D. 1907, in the Circuit Court of Cook county,” etc., “recover a judgment against the above bounden E. S. Hotchkiss for the sum of six hundred seventy dollars and eighty-one cents, besides costs of suit; from which judgment of the said Circuit Court of Cook county the said E. S. Hotchkiss has prayed for and obtained an appeal to the Appellate Court within and for the First District in said State; How, therefore, if the said E. S. Hotchkiss shall duly prosecute his said appeal with effect, and moreover pay the amount of the judgment, costs, interests and damages rendered and to be rendered against him in case the said judgment shall be affirmed in said Appellate Court, then the above obligation to be void, otherwise to remain in full force and virtue.”

The transcript of the record was filed in this court March 6, 1907, and on it an assignment of errors signed “M. L. Thackaberry, att'y for appellant,” which errors so assigned, however, were alleged to be not only rulings against the defendant in entering a default and judgments on the attachment and assumpsit issues against him, but errors committed against the “interpleader” in not granting his motions, excluding evidence offered by him, and entering judgment against him.

An abstract of the record and a brief and argument were filed by Mr. Thackaberry in this court on April 19, 1907, and May 11, 1907, respectively. Both the abstract and brief and argument are entitled E. S. Hotchkiss et al., appellants, v. The Vanderpoel Company, and the brief and argument treat the appeal as the complaint of both Hotchkiss as defendant and Thackaberry as interpleader against the judgment, and concludes:

“The judgment as to the interpleader as entered is contrary to all law and evidence, and as to the defendant in the assumpsit suit it is void because of lack of jurisdiction, and as to the attachment issue it is contrary to the law and the evidence. Hence we respectfully submit that said cause and each and every part thereof should be reversed.

Eespectfully submitted,

M. L. Thackaberry,

Attorney for Defendant and for the Interpleader.”

On May 15, 1907, appellee by its counsel filed in this court a motion to strike the bill of exceptions from the transcript of the record and to dismiss the appeal on the grounds, first, that the appeal was prayed by and allowed to the defendant and interpleader upon filing an appeal bond, etc., whereas the appeal bond “is only signed by Hotchkiss as principal and merely relates to the judgment against the defendant Hotchkiss, and does not recite the judgment against the interpleader nor attempt to appeal therefrom; second, that the bill of exceptions shows no motion for a new trial, nor any exceptions to the overruling of such motion; third, that the hill of exceptions shows no exception taken to the giving or refusal of any instruction, and fourth, that the certificate of the judge to the bill of exceptions does not purport to make said bill of exceptions a part of the record, but only a part of the bill of exceptions.

Counter-suggestions to this motion were filed by Mr. Thackaberry signing himself as attorney for appellants, and the motion was reserved for disposition until the hearing of the cause.

Appellee’s brief and argument were filed in this court June 5,1907. While the cause was here pending on October 23, 1907, an order nunc pro tunc as of January 5, 1907, was entered by the Circuit Court entitled as in the cause, “The Vanderpoel Company v. E. S. Hotchkiss.” It contained a recitation that it was entered “on motion of M. L. Thackaberry, attorney for E. S. Hotchkiss, the defendant in the attachment issue and for and on behalf of the interpleader as per the interplea filed herein”; and it ordered that “the defendant and interpleader” might “have leave to file an amendment to their bill of exceptions heretofore filed.”

■ The amendment is said to conform to the actual facts as shown by the minutes made by the court on January 5, 1907, etc., and consists of an insertion, before the instructions marked given, of this clause:

“Thereupon the court gave to the jury the following instructions, but the court cannot now say on whose behalf they were given.”

And the insertion, after the instructions marked given, of these words:

“To the giving of each and all which instructions the defendant and interpleader then and there excepted.”

And the insertion after the instructions marked “¡Refused” and before the conclusion of the bill of exceptions, of a recital of the rendition of verdicts against the defendant on the attachment issue and against the interpleader on his plea of interpleader; a motion of defendant and interpleader to set aside the verdicts so rendered, and also a motion of the defendant to set aside the verdict assessing damages against him, and to grant a new trial on behalf of the defendant and interpleader; a denial of each of said motions; the judgment on the verdict against the defendant as to the attachment issue; the judgment also against the defendant on the assumpsit issue, and the judgment against the inter-pleader for costs, and of the exceptions of the defendant and interpleader to said rulings, orders and judgments; also of a motion by the defendant and interpleader respectively in arrest of judgment, the denial of the same, and exceptions thereto.

On the entry of said nunc pro tunc order in the Circuit Court allowing this amendment, Mr. Thackaberry as “attorney for the appellants,” suggested a diminution of record in this court and moved for leave to supply same by filing in this court the amendment to the bill of exceptions above described. This motion was allowed, and the amendment filed as a supplementary record.

The concluding clause of the bill of exceptions, on which the fourth reason of appellee’s motion to strike the same from the transcript is based, is:

“Forasmuch, therefore, as the matters and things herein-above set forth do not fully appear of record in this court, the defendant and interpleader presents this, their bill of exceptions, and prays that the judge before whom said cause was tried may sign and seal the same and make it a.part hereof, which is done accordingly this 14th day of February, A. D. 1907.”

We think the careless language of this certificate may be overlooked. The purpose is plain enough to make the bill of exceptions a part of the record, and we think that was the effect of the certificate. We are not so bound by technicalities as to be obliged to hold a point like the appellee’s on this bill of exceptions well taken.

Nor since the filing of the supplementary record can it be said that the second and third reasons given by the appellee for his suggested striking of the bill of exceptions from the transcript have a proper basis.

There are now shown a motion for a new trial and exceptions by the defendant and interpleader to the giving of all the instructions, although these exceptions are rendered, in our opinion, of small importance by the fact that there is no certificate or showing made that the instructions recited in the bill of exceptions were all the instructions given or that they were not given at the instance and request of the defendant and interpleader themselves.

However, we do not think this nor the first reason set forth in the motion of the appellee to strike the bill of exceptions from the transcript of the record furnish sufficient reason for so doing, and this motion, which was reserved for the hearing, is now denied. But we are obliged, by the point made on the record and presented to us by the first ground alleged for this motion, and again pressed on us by the argument of the appellee, to consider and determine what, if any, appeal is properly before us. If the order of the Circuit Court on January 5, 1907, is considered as including at least two different and distinct judgments— one against the defendant in the assumpsit suit sustaining the attachment and giving judgment for $670.81, and another in favor of the plaintiff as against the interpleader-then it is apparent that the appeal was not perfected according to any reasonable construction of the order allowing it so far as the interpleader and the judgment against him is concerned.

Surely when an appeal is “prayed by defendant and inter-pleader to Appellate Court and allowed upon filing an appeal bond in the sum of one thousand dollars,” etc., it must mean" that the condition of the appeal bond, so far as the inter-pleader is concerned, should be that the interpleader should prosecute his appeal with effect, etc. But in the bond filed which appears here, there is no such condition. The bond is indeed signed by Thackaberry, although in such a way as that he may be taken to have signed it as a surety. But the condition, which has been hereinbefore quoted, particularly limits the effect of the bond to the judgment in the assumpsit suit against Hotchkiss for $670.81 and costs of suit. As we think the order did include two distinct judgments, we are forced to the conclusion that no appeal bond was filed hy the interpleader as to the judgment against him, and that no appeal by Mr. Thackaherry is before this court, that no appeal has been perfected in the Circuit Court from the judgment against him, and that we should neither affirm nor reverse such judgment against him, nor attempt to dismiss an appeal which is not here. The judgment in the Circuit Court, so. far as he is concerned, for aught that appears to us, is in full force and effect.

However, if the merits of his case were before us, we could not have held erroneous those rulings which he attacks in his argument, He complains that he was not given the opening and closing argument in the court below, bfothing appears in the record to show whether he did have them or not, or whether he asked for them or not. The letters from Dr. Wilson, which were excluded, were plainly incompetent. They were communications from a third party, not before the court, to Thackaherry, and self-serving.

Of the instructions if they had been erroneous, which we cannot see they were, the interpleader is not in a position to complain, because so far as anything is shown hy the hill of exceptions as to their source, the implication would he that all those given were requested hy him. If that is not the implication, it is at least left impossible to say from the certificate that they were not so given.

As to the instructions marked “Defused,” there is not, even in the amended hill of exceptions, any note of "who requested them or any note of any exception to the refusal to give them.

As to the order of November 14, 1906, ordering the clerk of the Circuit Court to pay certain money to Thackaherry and certain motions to vacate that order, it is plain xve should have had in no event anything to do with them in this appeal. We do not even know from the record xvhether the order xx'as ever executed or xvhat became of the motion to vacate it.

If the judgment in the matter of the interplea and of the assumpsit suit in the singularly inartificially drafted order of January 5, 1907, should be considered a unit and the appeal a joint one from it by Thackaberry and Hotchkiss, then the whole appeal would have to be dismissed for want of a sufficient appeal bond. Robeson v. Lagow, 73 Ill. App., 665; Western Plaster Works v. lonergan, 85 Ill. App., 530; and Tedrick v. Wells, 152 Ill., 214, are authority, not for the proposition, as incorrectly quoted from them by appellee in its suggestions on the motion to dismiss the appeal, “that where several parties join in praying an appeal and it is allowed on condition that they execute a bond, the condition must be literally complied with or the appeal will be defective as to those who do not join in it, and the appeal must be dismissed”—but for the more important and less self-evident proposition that the appeal will be defective as to those even who do join in it, and must therefore be dismissed.

But in this case regarding, as we do, the judgment against the interpleader and the judgment against the defendant as distinct, and giving the benefit of a very doubtful construction to the defendant and treating the appeals as prayed as distinct, we have considered the objections of the defendant Hotchkiss to the judgment against him on their merits.

We cannot see that the court failed in jurisdiction in the assumpsit suit. If nothing else in the proceedings were sufficient to confer that jurisdiction, we think the successful motion of his attorney for a bill of particulars of the claim against him before trial was a general appearance. The defendant then, although not pleading to the declaration, took part in the trial on the question of the assessment of damages and cross-examined the manager on the primary merits of the case. Moreover, he made a motion to set aside the verdict against him on the assumpsit issue. Each of these three things amounted to a general appearance. Baldwin v. McClelland, 152 Ill., 43-53; Nicholes v. People, 165 Ill., 502; Abbott v. Semple, 25 Ill., 107.

Nor do we see any reason why we should interfere with the verdict or judgment on grounds of any rulings on the evidence or instructions, or because it was against them either as to sustaining the attachment or finding and assessing damages.

The judgment, therefore, in favor of the appellee against the appellant E. S. Hotchkiss sustaining the attachment and for $670.81 damages, with costs, is affirmed. Ho order is made as to the interplea of M. L. Thackaberry or the judgment thereon—no appeal of Thackaberry being held to be before us.

Affirmed.


text:
    William Strook et al. v. Stillman B. Jamieson.
    Gen. No. 13,639.
    X. Appeals and errors—when master in chancery becomes party. If after a cause has been dismissed a master in chancery, upon his own petition, obtains an order requiring the payment to him of certain fees earned in the proceeding, he becomes a party to the cause to the extent of such order, and an appeal lies therefrom and is properly entitled with the master named as appellee.
    2. Master in chancery—when order of dismissal does not affect fees of. An order of dismissal “without costs” does not affect the master’s rights to his fees, even though such order is consented to by the defendants.
    3. Jurisdiction—when order of dismissal cannot be set aside. An order of dismissal cannot be set aside after the lapse of the term where no misrepresentations were made or deception practiced which resulted in the entry of the order.
    Chancery proceeding. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed.
    Opinion filed March 9, 1908.
    John 0. Trainor, for appellants.
    Stillman B. Jamieson, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This appeal presents a peculiar situation. The appellee has not argued the matter on the merits, but insists that he is improperly made the appellee—that he was connected with the matter involved in the contention here simply as an officer of the Circuit Court (master in chancery). His argument, as shown by brief -suggestions in support of his motion to dismiss the appeal, is that the record, abstract and brief filed by appellants show that the appeal is based on an order entered in the case of Knute O. Knudson v. William Strook, Minnie Strook and Oscar R. Hillstrom, general number 258,005, and that the parties filing the record in this court were defendants in said cause; that the complainant in that cause, Knute O. Knudson, is not made a party to this appeal and is not mentioned in the appeal bond, but in lieu thereof he—Stillman B. Jamieson—the master in chancery who heard the case on reference from the Circuit Court, is personally named as appellee, and the bond runs in his favor. Therefore, he says, as officers of the court performing services in suits before them do not acquire any interest in the suits and are not parties to them, it follows that the present appeal was improvidently allowed, and cannot be maintained. To sustain this proposition he cites Gagnon v. Burton, 107 Ill. App., 506, and Symms v. Jamieson, 115 Ill. App., 165, and asks that the appeal be dismissed. His motion to this effect was reserved until the hearing of this cause.

To decide whether the argument of Mr. Jamieson is valid as applied to the present case, and whether these cited cases are controlling, it is necessary to consider the facts attending the making by the Circuit Court of the order complained of and appealed from.

Without stating particularly and in detail the way in which the facts appear from the record, it is sufficient to say that K. O. Knudson, some time before January 25, 1905, had brought a suit in chancery in the Circuit Court of Cook county to enforce a mechanic’s lien against certain property in the city of Chicago, making defendants William Strook and Minnie Strook, his wife, and Oscar B. Hillstrom, Strook being the alleged contractor and owner of the title to said property, subject to a trust deed on the same running to said Hillstrom, who had no further interest in the property than as such trustee. On January 25, 1905, the cause had been referred to Stillman B. Jamieson, master in chancery of the Circuit Court, to take testimony and report it to the court, with his conclusions of law and fact. Mr. Jamieson heard and certified 1,257 folios of testimony, and then performed much other service in the cause, in the examination and consideration of the questions involved. His fees allowed by law for the taking and certifying of the testimony amounted to $188.55, and on January 26, 1906, he asked the court in a certificate of charges filed in the cause to allow him $100 for the other services. On April 7, 1906, Judge Walker, in the Circuit Court, by order fixed the compensation of the master at $100, in addition to the sum of $188.55 for taking and certifying the testimony, in all, $288.55, which amount has never been paid. The master filed a report in favor of the complainant Knudson, recommending a decree in his favor for $602.

In November, 1906, through their respective solicitors, Knudson and William Strook agreed to settle the litigation, no decree having been entered therein. Strook agreed to pay and Knudson to receive $200 in settlement of Knudson’s claim. The agreement was reduced to writing and Knudson, in consideration of receiving the $200 from Strook, acknowledged satisfaction of all claims and demands he had against the Stroolcs or Hillstrom, and agreed that he would dismiss the pending suit “ at his own costs, that is at complainant’s costs,” and “that no costs or charges should be made or claimed by him, said complainant, by reason of any proceedings in said suit, or growing out of the same, against the said party of the second part, or the said defendants, Minnie Strook and Oscar R. Hillstrom.”

In accordance with this agreement the solicitors for Knudson and for Strook respectively, personally, or by their authorized representatives, met at the court room of Judge Windes, then hearing the chancery docket of the Circuit Court, on November 15, 1906, and drafted and approved the following order:

“Knudson vs. Strook et al.

Chancery Circuit Court of Cook County 258005 ............... Term, 190.. No. 12220

On motion of solicitor for complainant, it is ordered that above cause be dismissed without costs.

Enter 15 day of November, 1906.

O. K. E. H. Novak, Solr. for compl’t.

John C. Trainor., Solr. for Dfts.”

This O. K’d order being handed to the judge was hy him signed and given to the clerk and accordingly entered, and thereupon the $200 was paid by Strook’s solicitor to Knudson’s. This order was entered at the October term -of the court, 1906 (November 15, 1906). At the next term, the November term thereof (November 26, 1906), Stillman B. Jamieson presented a petition to the court entitled as in

K. O. Knudson vs. William Strook et al.

Gen. No. 258003, Term No. 12220,

in which he set up that he was a master in chancery of the Circuit Court; that the cause of Knudson v. Strook was referred to him for hearing; that there had been many hearings participated in by complainant and the three defendants, all duly represented by counsel; that a master’s report had been made and filed; that Judge Walker, as chancellor of the Circuit Court, had entered an order fixing the amount of said master’s fees for his services and ordering the same taxed as costs, and that no part of said costs had been paid; that the proceeding was a bill to enforce a mechanic’s lien now standing against the property owned by certain of the defendants ; “ that the record discloses that no legal tender was ever made by the defendant of the amount due the complainant” ; that therefore “in the event that it should be decreed that the defendants were liable for any portion of the indebtedness, it would follow as a natural consequence that they were liable for all of the costs, including the master’s fees, which would be a lien against the property involved ”; that the petitioner was informed and believed that the defendants had paid a large sum of money to complainant, and had satisfied his claim, and had also paid the complainant’s solicitor’s fees, and all other costs except the master’s fees; that on or about November 15, 1906, the defendants and John C. Trainor conspired together with the complainant and one F. H. Novak for the purpose of avoiding their liability for payment of the master’s fees herein, and for the purpose of defrauding the said master out of the fees earned and awarded to him; that pursuant to said conspiracy, said parties, or some of them, -went to the attorney who tried the cause for the complainant, and representing that they had paid the complainant and had also paid, or would pay, all costs, including the master’s fees, and paying his fees as solicitor for the complainant, procured him to sign a stipulation withdrawing from the cause and consenting to the substitution of F. H. Novak as solicitor of record; that thereupon said Novak and Trainor, or their representatives, appeared before the court and represented that they were the solicitors for the complainant and the defendants respectively, and that there were no costs incurred, and “asked to have an order entered dismissing the bill of complainant herein without costs to either party, or without a judgment for the payment of the costs theretofore incurred”; that thereupon “the court, acting upon said fraudulent misrepresentations, entered said order.”

The prayer of the petition was as follows:

“By reason and on account of the fraud perpetrated upon the court, this petitioner asks that the order of November 15, 1906, be set aside or so amended as to direct that the defendants pay the costs of this proceeding, including the fees of the master in chancery heretofore allowed, fixed and taxed herein. This petitioner further asks that a rule be entered on F. H. Novak and John C. Trainor, both of whom are attorneys, and as such are officers of this court, to show cause why they should not be punished for perpetrating said fraud upon the court.”

John C. Trainor personally seems to have demurred to the petition, and on the overruling of the demurrer, answered it purely in his own behalf, protesting against the proceeding, and denying the further jurisdiction of the court in the cause of Knudson v. Strook, or over the parties to the same, and not purporting to submit himself or them to such jurisdiction. He first asserted in his answer (which was sworn to) that the cause was dismissed in the October term, 1906, and that now, in the November term, the court ivas without jurisdiction in said cause or over the parties in said cause.

Secondly, he admitted the various matters alleged in the petition about the nature of the litigation, alleged that while denying that he was indebted to complainant, the defendant Strook tendered to complainant before the evidence was heard, $300, and kept said tender good; that Master Jamieson had stated that such tender was a fair and just offer, but had recommended a decree for the full amount claimed, $602.20, and costs, and $100 solicitor’s fees.

Thirdly, he alleged that he informed said master, in a conversation over the telephone, that said parties were negotiating a settlement, and asked said master what sum he would be walling to accept in satisfaction of his fees if such negotiations were successful; that said master said he would accept $50, and that respondent informed said master, while at all times disclaiming any liability on the part of said defendants to pay said master’s fees, that he would insist on defendants contributing one-half said sum, $25, for the purpose of reaching a settlement; that he had no further conversation with said master in reference to said cause until November 19, 1906, on winch day he informed said master that said parties had settled said cause, and that he had required defendants to pay for the master the sum of $25, which he was then ready to pay to him, and that Mr. Novak, solicitor for complainant, had the other $25 for him; that then the master said he would not accept $50 in settlement of his fees.

Fourthly, he denied any conspiracy or agreement with Novak, or any other person, for the purpose of avoiding their liability to the master, or inducing the former solicitor for the complainant to withdraw.

Fifthly, he alleged that Novak, as solicitor for complainant, and one McGrath, who represented him (Trainor), appeared in court on November 15th, and Novak, as solicitor for complainant, made a motion to dismiss the cause of Knudson v. Strook et al., and “it having been agreed that the defendants waived any claim for costs against complainant, an order was drafted and 'O. K.’d’ by said representatives of both parties, dismissing said cause without costs, the purpose of drawing said order in that form, instead of at complainant’s costs, being to manifest said defendants’ intentions to waive any claim for costs against complainant, all costs having been theretofore paid by the respective parties, except said master’s fees, and satisfactory provisions having been made for payment of said fees, as herein-before set forth,” and that no representations of any kind were made to the court when said motion was made and said order entered.

On the hearing, the order of November 15, 1906, before described, the certificate of charges filed by the master in the cause of Knudson v. Strook et al., January 26, 1906, and the order of the court of April 7, 1906, on the same; the check of $25 tendered by Strook to the master as set forth in the answer of Trainor, which check was signed by Hillstrom; the contract of settlement and release of lien entered into between Knudson and Strook; and the affidavits of Frank H. Novak, of Stillman B. Jamieson, and of Chester Firebaugh (the former solicitor for the complainant Knudson), were offered and read in evidence, and the court on December 5, 1906, entered an order entitled in the cause number 258,003, Knudson v. Strook et al. The order recited that on the coming of “the complainant Knudson by F. H. Novak, his solicitor, and the defendants William Strook, Minnie Strook and Oscar B. Hillstrom, by J. C. Trainor, their solicitor, and of Stillman B. Jamieson, the master in chancery,” etc., the court found:

First. That on April 6, 1906, an order was entered fixing and taxing as costs the fee of Stillman B. Jamieson at the sum of $288.55, and that it was unpaid.

Second. That on November 15, 1906, the defendants having paid and satisfied the claim of the complainant, an order was presented to the court, bearing the “O. K.” of counsel for the complainant and defendants respectively, and upon motion of the solicitor for the complainant, and with the consent of the solicitor for the defendants, both appearing in open court, said order was entered by the court, and ordered that the cause of Knudson v. Strook et al. be dismissed without costs.

Third. That the portion of said order providing for the dismissal of said cause without costs was an error of fact, inasmuch as the fees of the master in chancery thereto fixed and taxed as costs, at that time appeared of record unpaid and unsatisfied.

Fourth. That the proceeding was a bill to enforce a mechanic’s lien against certain real property.

The decreeing portion of the order was this:

“It is therefore ordered, adjudged and decreed by the court, that the order of this court entered November 15, 1906, be amended by striking out the words ‘without costs,’ and inserting in lieu thereof, ‘with one-half of the costs against the complainant, and one-half of the costs against the defendants, and that fee bills issue therefor.’ ”

The order concludes:

“The defendants and complainant jointly and severally except to the entry of the above and foregoing order, and jointly and severally pray an appeal to the Appellate Court of Illinois, which is allowed upon the said defendants filing their appeal bond herein,” etc.

On December 15, 1906, on the ground that Hillstrom was merely a nominal defendant in Knudson v. Strook et al., without any interest therein, a motion was made that the court so modify the order of December 6th that it should not provide that any part of the costs should be taxed against him. In support of this motion, which the court denied, the affidavit of Hillstrom was offered, to the effect that he wras made a defendant merely because he was named as trustee in a mortgage trust deed of the premises involved, and that he had no interest in the premises nor in the indebtedness secured by said trust deed, nor in the litigation.

On January 3, 1903, William Strook, Minnie Strook and Oscar R. Hillstrom presented, and Judge Windes, who entered the order of December 6, 1906, approved, an appeal bond in the sum of five hundred dollars, signed by William Strook, Minnie Strook, Oscar R. Hillstrom, and Christine Hillstrom, and running to Stillman B. Jamieson, the condition of which -was:

“That, whereas, in the Circuit Court of Cook County, in the State aforesaid, and of the November Term thereof A. D. 1906, a certain decree was entered against the above bounden William Strook, Minnie Strook and Oscar R. Hillstrom, for one-half the costs in a cause pending in said court entitled Knudson v. Strook, Gen. No. 258003, from which said decree of the said Circuit Court the said William Strook, Minnie Strook and Oscar B. Hillstrom have prayed for and obtained an appeal, etc. Now, therefore, if the said William Strook, Minnie Strook and Oscar R. Hillstrom shall duly prosecute their appeal with effect, and moreover pay the amount of the said decree for costs, interests and damages,” etc.

The clerk of the Circuit Court, in certifying the transcript of the record which has been filed in this court, certifies that the proceeding, the transcript of the record of which precedes the certificate, began by the filing of a petition on November 26, 1906, by Stillman B. Jamieson, praying a modification of a final order dismissing the cause of Knudson vs. Strook et al., in which petition Stillman B. Jamieson, Master in Chancery of the Circuit Court, was petitioner, and the “said complainant, K. O. Knudson, and the said defendants William Strook, Minnie Strook and Oscar R. Hillstrom and their respective solicitors, F. H. Novak and John C. Trainor, were respondents.”

The assignments of error in this court attack generally the jurisdiction of the Circuit Court to entertain the petition of Jamieson, or make any order affecting the rights of appellants after the term at which the order of dismissal of Knudson v. Strook was ordered, and particularly question it for the reason that neither the Strooks nor Hillstrom had any notice either actual or constructive of the petition and proceedings to modify said order.

It is also insisted that the court specifically erred in apportioning one-half of the costs in Knudson v. Strook et al. against the defendants 'in that cause, and particularly, it is alleged, that such error exists in apportioning any portion of the costs against Hillstrom, who had no interest in the litigation or property save a hare legal title as trustee, and as against Minnie Strook, whose only interest was that of an inchoate right of dower in the property involved.

A consideration of the proceedings shown by this record fails to show us any reason for holding that this appeal is not properly taken, or even that it is not properly entitled. After the cause of Knudson vs. Strook et al. had been dismissed, and after the term at which the order dismissing it had gone by, Mr. Jamieson filed a petition to the court sitting in chancery. He entitled it indeed in Knudson v. Strook et al., to which cause he rightly says he was not a party. Neither were the only respondents he actually names in his petition parties, but merely the solicitors of record of parties. He asked that they should be punished, but he asked also that the defendants in Knudson v. Strook et al. should be decreed to pay him his fees in that case—a matter entirely out of the usual course where a suit is dismissed at complainant’s motion—and of course although he did not name them as respondents to his petition, they must be considered defendants thereto. It is apparent that that on which he asked a decision was not a question mooted in any sense between the complainant and the defendants in Knudson v. Strook et al., but an independent contention of his own. Whether his petition be considered an intervening petition in that cause, or, as appellants suggest, more in the nature of a bill of review, the master ceased to be merely an agency of this court, and was an independent and interested party in the matter. The fact that he happened also to be a master of this court does not seem to us to take the case out of the rule laid down in Bromley Carpet Co. v. Field, 88 Ill. App., 219, which holds that a party intervening in a cause and showing an interest in the orders of the court “by filing a petition, becomes a quasi-party and entitled to an appeal.” If entitled to an appeal himself, it would seem to follow that the parties whom he makes defendants to his petition and against whom he secures a final order subjecting their property to execution (as does the order in this case which taxes a certain amount of the costs in his favor against the defendants and orders, “that fee bills issue therefor”), are entitled to an appeal against him.

Counsel for appellants say that the appellee’s solicitor himself insisted that the appeal bond should be made to run to appellee, and this necessarily determined the entitling of the appeal in this court. Whether this be so or not, the chancellor evidently held this to be the proper form of the bond and appeal when he ajiproved the bond. We think he was right. The cases of Gagnon v. Burton, 107 Ill. App., 506, and Symms v. Jamieson, 115 Ill. App., 165, seem to us distinguishable in an essential particular from the one at bar. Had the appeal been taken from the order of April 6, 1906, fixing the amount of the master’s fees, they would be in point, but there is here presented a different question. The motion of appellee to dismiss the appeal is denied.

We regret that the appellee did not argue the cause here on the merits, for the conclusion that we have reached on them is adverse to the relief granted him by the court below, and we should have been better satisfied had the order of the chancellor been defended before ns. There is no pretense or claim that the master’s fees were not properly allowed at the amount asked by him in his certificate of January 26, 1906, and of course, therefore, there is no reason why (if he has not released them) he shonld not enforce them in due course and against such parties as are legally liable therefor. Ho agreement of the parties to which he did not assent can affect his rights as to this. But as we view the order of the court, entered on motion of the complainant, November 15, 1906, there was no interference with these rights. The order had the same effect exactly as though it had read, “On motion of solicitor for complainant it is ordered that the above cause be dismissed,” and ended there; or “On motion of solicitor for complainant, it is ordered that the above cause be dismissed at complainant’s costs”; with this single exception, that the addition or substitution of the words “without costs,” which addition or substitution was agreed to by defendants’ solicitor, waived or prevented the recovery or collection of costs against the complainant by the defendants. We do not think it doubtful that this was the result, and that the master’s rights, whatever they are, were unaffected by the order.. Had the order recited that the costs were “paid,” perhaps a different question would have been presented. But if our conclusion as to this be incorrect, then it seems to us that if there were jurisdiction in the court at all, on the theory that there had been a mistake of fact or otherwise, to change the order at a subsequent term, the correct amendment on this petition and the evidence adduced thereon, would have been to strike out the words “without cost,” or substitute therefor at “complainant’s costs,” or, at most, “on condition that the accrued costs are first paid.”

We do not mean to say that circumstances might not have made the defendants, or some of them, primarily liable to the master for fees, although not taxed against them by the court, nor that the original motion to dismiss by the complainant could not have been denied by the court except on terms imposed by it on the complainant. The statute on Mechanic’s Liens expressly provides that it could have been. Mechanic’s Lien Act of 1895, section 11.

But the course here taken raises a different question entirely. The mechanic’s lien petition had already been dismissed. The term at which it had been dismissed had gone by. The order which was entered at the succeeding term did not revoke the dismissal, but arbitrarily assessed one-half of the costs against the defendants and awarded execution therefor. This was not to allow the dismissal of the petition on "terms named by the court ” but to make a judgment or decree against the defendants, who had not yet had their hearing and day in court. That the master had reported adversely to them was of no importance; they had a right to a hearing before the chancellor on the merits. The evidence offered on this petition shows that the “payment and satisfaction” of the complainant’s claim was in reality a purchase of his peace by one of the defendants for a sum small compared with the claim of the complainant, for which he was suing, and which the master had reported was due him. There is nothing in the evidence justifying the allegation of the petition that the order of November 15, 1906, was obtained by misrepresentation or deception of the court. In fact the opposite appears, and the order of December 5th does not place the action of the court on the latter date upon any such grounds, but upon the ground that the portion of said order providing for the dismissal of said cause “without costs” was “an error of fact.” As we construe that order we can see no error of fact in it which authorized the court to vacate or modify a final order passed at a previous time. If it was an inadvertence to make the order dismissing without terms, it was an overlooking, not a mistake of facts at most, which caused it.

Therefore we think the order of December 5, 1906, was beyond the jurisdiction of the court to make. Moreover, we think that if it had been within its jurisdiction, it would still have been erroneous. These propositions are emphasized by the facts, although not dependent on them, that notice of the appellee’s petition was only given to the former solicitor of the defendants after the case was out of court (Swift v. Allen, 55 Ill., 303), that under the Mechanic’s Lien Act the matter of costs is controlled by statute and is not within the discretion of the court as in other chancery cases (Kipp v. Massin, 15 Ill. App., 300) and that under the order a plainly inequitable thing was done in fixing a judgment liability for half of the master’s fees on Minnie Strook, whose interest was only that of the owner of an inchoate right of dower in the premises owned by the'principal defendant, and on Hillstrom, who had no beneficial interest in the premises and was in no way responsible on any contract regarding improvements on them.

The order appealed from is reversed.

Reversed.


author: Mr. Presiding Justice Willis

text:
    C. L. Tanner, Appellee, v. F. H. Clapp et al., Appellants.
    Gen. No. 4,825.
    1. Change of venue—tolls# insufficient to show consent of co-parties to application for. Where one of several defendants applies for a change of venue, it is not sufficient if the consent of his co-defendants to the application only appears by a statement contained in the petition (which was signed only by the defendant making the application), that such application was made with the consent and on hehalf of all of the defendants.
    2. Pleadings—effect of stipulation waiving informalities in. The common counts are sufficient to admit a recovery of commissions for the sale of real estate where it is stipulated that all proper pleadings in assumpsit for the recovery of commissions for the sale of real estate should be considered in.
    3. Witnesses—how far parties in interest competent. A party in interest is competent as a witness to contradict the testimony of a deceased party which testimony had been given upon a former hearing of the cause and was read in evidence upon a subsequent hearing.
    4. Evidence—what essential to save for review propriety of ruling excluding evidence. The wrongful exclusion of evidence can only be saved for review where an offer of proof has been made, that is to say, where it is indicated what the evidence sought to be introduced would be.
    5. Instructions—must not single out testimony of particular witness. An instruction should not be given which singles out and gives undue prominence to the testimony of a particular witness.
    6. Instructions—tomsí not inferentially cast reflections upon testimony of witness. An instruction, as to the credibility of witnesses which singles out a particular witness and by its terms appears to cast suspicion upon the testimony of such witness, is improper and. should be refused.
    7. Instructions—when must sum up entire cause. An instruction which purports to summarize the principal facts is erroneous where it directs the attention of the jury only to those facts which are favorable to one of the parties.
    Assumpsit. Appeal from the Circuit Court of Livingston County; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 11, 1908.
    Duncan, Doyle & O’Connor and A. C. Horton, for appellants.
    B. S. McIlduee and B. 14. Thompson, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

A. J. Ridinger and C. L. Tanner brought suit in assumpsit in the Circuit Court of Livingston county against F. H. Clapp, H. D. Osgood, R. Menaugh, J. H. Kane, C. Mc-Greevy and L. T. Earnhardt, who constituted a partnership known as the Illinois-Manitoba Land Co., to recover commission for the sale of land. At the first trial the jury disagreed. Afterwards, Ridinger died and the suit proceeded in the name of Tanner as sole plaintiff. The pleadings being mislaid, .it was stipulated that all proper pleadings in assumpsit for the recovery of commissions for the sale of real estate be considered in. An application by appellant Menaugh for a change of venue was denied. There was a trial and a verdict for appellee for $640. A motion for a new trial was overruled, judgment was entered on the verdict and this appeal was taken by the defendants.

It is urged that the court erred in denying the petition for a change of venue. The petition stated that the application was made with the consent and on behalf of all the defendants, but it was signed and verified by appellant Menaugh only. Section 9, chapter 146, Hurd’s R. S. 1905, provides; “When there are two or more plaintiffs or defondants, a change of venue shall not he granted unless the application is made by or with the consent of all the parties plaintiff or defendant as the case may be,” with a proviso relative to proceedings for the condemnation of property not material here. Menaugh’s co-defendants did not sign the petition and there is no evidence of their consent save the conclusion to that effect set out in the petition and its verification which is but hearsay, and therefore, in our opinion, not in compliance with the requirements of the statute. Had their signatures appeared on the petition or their consent been conveyed to the court in any direct way so as to bind them, it would have been sufficient.

It is urged that as the declaration contained the common counts only, a recovery could not be had in the absence of a special count on the contract. The stipulation providing that all proper pleadings in assumpsit for the recovery of commissions for the sale of real estate should be considered in, obviated the necessity of a special count on the contract or any other formal pleading by either appellee or appellants.

Appellants, in the spring of 1903, were engaged in selling land in Manitoba and Assiniboia. Appellant Earnhardt, in the latter part of April of that year, visited Saunemin, and -while there, offered the agency of their lands to P. H. Lannon, then associated in the real estate business with one Mies. Lannon did not accept the agency at first, but held the matter under consideration until about the middle of June and then accepted it. While Lannon or Lannon and Mies had the subject of the agency under consideration, Earnhardt had some negotiations relative to the agency of appellants’ lands with Ridinger and Tanner. Earnhardt claims that their agency with them was but temporary, to be surrendered if Lannon accepted the agency, and that they were to have commissions only on land sold to customers whom they produced at once and before Lannon took the agency. Ridinger and Tanner, on the other hand, claimed that their agency was unconditional. They in company with Earnhardt visited and solicited a number of persons to buy land, among whom were Ed. Thornton and William Sellmyer. On June 15, 1903, Lannon accepted the agency, and Earnhardt notified Ridinger that their services were ended. On July 7, Thornton and Sellmyer went with Lannon to Manitoba and bought land, Thornton 160 acres and Sellmyer 640. A few days before they went, one Lang, representing the Douglas Land Company, a competitor of appellants, visited Saunemin and with Tanner visited Thornton and Sellmyer and tallied land to them in Tanner’s presence. This suit was brought to recover commissions for the sale of real estate made to Thornton and Sellmyer and is based on an alleged promise by Earnhardt to Ridinger and Tanner that they should have a commission of $1 per acre on any land sold to Thornton and Sellmyer, whether sold by them or some one else. It appears that appellants, prior to Lannon’s accepting the agency, telegraphed appellee that an excursion was about to go to the lands and to bring on his men, but that they did not do so, and that soon after Lannon accepted the agency. Appellants notified Tanner and Ridinger of this fact.

Appellants’ contention is that appellee did nothing towards bringing about the sale of the land to Sellmyer and Thornton, for -which sale to Sellmyer it is evident the commission was allowed by the jury, but that on the contrary, Sellmyer refused to have any dealings with appellee and had been dealing with Lannon before he accepted the agency, and had stated that he would go to see the lands with no one else, and that Lannon effected the sale to Sellmyer. Appellants paid Lannon a commission for the sale to Sellmyer, and Lannon had a man named Watts in some way associated with him, to whom he paid a part of the commission. Watts testified to a conversation with Ridinger, in which Ridinger made certain statements tending to show that he and Tanner had no cause of action against appellants for these commissions. The court excluded the testimony of Watts on the ground that he was a party in interest. The fact that he had some arrangement with Lannon by which he was to have a part of the commission for the sale made by Lannon did not make him a party in interest. Moreover Watts had received his part of the commission, and certainly that terminated his interest. He would he under no obligation to pay it back if appellee succeeded in this suit. It is true, he was asked on cross-examination if he had not stated since the first trial, that they had the commission if they could hold it, but that if the suit went against appellants, they were going to return it, or that in substance, to which he answered, “No,” but no proof was offered to contradict his statement. Watts5 testimony was competent and material, and its exclusion was error.

On the trial, the evidence of Ridinger, the deceased plaintiff and Tanner’s co-partner, taken on the former trial was read. Appellant Clapp was offered as a witness in rebuttal thereof, and to contradict the testimony of Tanner. An objection to his competency was sustained because of the death of Ridinger. We are of the opinion that he was a competent witness to rebut anything’ contained in the evidence of Ridinger, and anything testified to by Tanner, but was incompetent for any other purpose. But for appellants to avail themselves of the wrongful exclusion of Clapp’s testimony, they should have made direct offers of proof as to what he would be asked to testify to. This appellants did not do, except in one instance and the record discloses that this was upon an immaterial question. Therefore we are of the opinion that the exclusion of his testimony does not amount to harmful error. The court should, however, have permitted Clapp to testify and left appellee to object if any questions were asked him outside the testimony of Ridinger and Tanner. We are of the opinion that it was competent to prove, as appellants offered, that after Lannon was appointed agent, Tanner introduced Sellmyer to Lang, agent of the Douglas Land Co., a competitor of appellants, and stood by while such agent sought to sell him lands. This would bear upon the case in two ways. First it would tend to show that they were acting adversely to the interest of their alleged employers and working against them instead of with them, and it might lead the jury to conclude that they had been so unfaithful in that respect that they ought not to receive compensation for their alleged services; and second, it would tend to rebut appellee’s claim that after Lannon was appointed Earnhardt told him and Ridinger that they should have their commission on the lands if they were sold to these parties, whether they had anything to do with the making of the sale or not, because if there had been such an agreement, they would not be likely to be taking part in an effort to sell the lands by a rival dealer. Such of the trial court’s rulings as kept out evidence of any co-operation between Ridinger and Tanner and the agent of a rival company to sell to Sellmyer and Thornton, were improper. There was no impropriety in the court refusing to admit proof that the agent of the rival company reported to his company that he had hired Tanner as his agent to sell their lands. It would have been competent to prove by such rival agent that he did hire Tanner to sell these rival lands before the sale to Sellmyer and Thornton or at the time the rival agent was introduced to them by Tanner, but the agent’s statement to his company was mere hearsay.

Appellants complain of a number of other rulings excluding evidence offered by them. We will not extend this opinion to consider them except to say that a careful examination of the record discloses that some matters so excluded may have been material and competent, but they were properly excluded because not proper subjects of cross-examination.

The court in appellee’s third and eighth instructions singled out and made prominent, as though specially important, the testimony of Ridinger, the deceased plaintiff, and then undertook to give the jury a summary of the facts which they were to consider in arriving at their verdict, but directed their attention only to those favorable to appellee, and omitted all that tended to illustrate or establish appellants’ theory of the case, and concluded by telling the jury that if they found the facts as stated, they should return a verdict for the plaintiff. One of the vices of these instructions is the singling out and calling the jury’s attention to the testimony of the witness Ridinger, as if in the judgment of the court his testimony was decisive of the case. Such a practice has long been condemned in numerous cases in the courts of this State as unfair and calculated to magnify the importance of the testimony of the particular witness. J. & S. Railway Co. v. Walsh, 106 Ill., 253; Wright v. Bell, 5 Ill. App., 352; Brown v. Monson, 51 Ill. App., 489. The second vice of these instructions is that they purport to summarize the principal facts but direct the attention of the jury only to those favorable to one of the parties. In Evans v. George, 80 Ill., 51, it is said, “It is the duty of the jury to consider all the facts, and when the court assumes to direct their attention to the facts, it should refer them to all the facts, so as to present the case fairly for both parties. Otherwise the jury might understand the facts stated in the instructions are the only ones necessary to be considered in deliberating on their verdict.”

Appellee’s ninth instruction told the jury that if they believed from the evidence that the witness, William Sellmyer, before testifying made any statements out of court or any statements on the former trial concerning any material matter different and at variance with what he stated on the witness stand, they had the right to consider whether these facts tended to impeach his recollection or truthfulness. This instruction had a tendency to make the jury think that the court saw something especially suspicious in the testimony of this witness. This instruction should have been refused or so modified as to apply to all other witnesses in the case.

Eor the errors indicated, the judgment of the trial court is reversed and the cause is remanded.

Reversed and remanded.


text:
    Michael Doyle, Jr., Appellant, v. Edward Cavanaugh, Appellee.
    Gen. No. 4,895.
    1. Verdict—when not disturbed as against the evidence. To justify the Appellate Court in reversing on the ground that the evidence is insufficient, it must appear that the finding of the jury is not sustained by the evidence or that it is palpably contrary to the decided weight of the evidence.
    2. Evidence—when improper exclusion of, will not reverse. The improper exclusion of evidence upon the question of damages will not reverse where the merits of the controversy have been decided adversely to the party making the complaint.
    3. Assault and battery—when instruction in action for, improper. An instruction upon the subject of self-defense, in an action for assault and battery, is improper which tells the jury that the defendant “had a right to repel force by force and in so doing to use such force as the defendant then believed was reasonably necessary under the existing circumstances.” Such instruction should have told the jury that the defendant’s belief must have been such as a reasonable person would have entertained under the circumstances.
    4. Instructions—when cannot he complained of. A party cannot complain of an instruction given at the instance of his adversary where the vice in question is one common to the instructions given at his own instance.
    Trespass. Appeal from the Circuit Court of Will County; the Hon. Albert O. Marshall, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed March 11, 1908.
    Dagger & Blatt, for appellant.
    John J. Mahoney, for appellee; Edward Corlett and George J. Clare, of counsel.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

This was an action in trespass instituted iii the Circuit Court of Will county by Michael Doyle, Jr., against Edward and George Cavanaugh to recover damages for injuries for an alleged assault and battery committed upon him by them. The declaration charged an assault, an assault and battery, and an assault with a deadly weapon upon the person of the plaintiff. Some of the counts also charged malice. Pleas of not guilty and son assault demesne were interposed by each of the defendants. It was ordered on the stipulation of the parties that all replications not involving a new assignment that could have been properly filed be considered as on file. This stipulation filled the office of the replication de injuria. There was a trial, and at the conclusion of plaintiff’s evidence the suit was dismissed as to George Cavanaugh, the pleadings amended and the suit proceeded against Edward Cavanaugh as sole defendant. There was a verdict of not guilty, motions for a new trial and in arrest of judgment overruled, and judgment entered against plaintiff, to reverse which he brings the case to this court on appeal.

It is urged on behalf of appellant that the verdict is against the manifest weight of the evidence, and that the court excluded competent evidence offered by plaintiff below, and gave the jury erroneous instructions at the request, of the defendant.

Appellant and appellee are relatives and belong to the same political party. On April 3, 1906, one Forsythe, a brother-in-law of appellant, was a candidate for collector in the town of Florence. A brother of appellee opposed his election. Brown, a brother-in-law of appellee, was a candidate for the same office in the town of" Jackson, and appellant opposed his election. Brown was elected and Forsythe defeated. The evening after the election, while the parties were in Blatt’s store in Ehvood discussing the result, appellant said that if it had not been for big Bill Cavanaugh, Forsythe would not have been defeated. Unknown to appellant, appellee was present at the time and heard the remark. A few minutes later appellant left and went into Manton’s store a few doors away, where tobacco and soft drinks were sold, and was standing at the bar when appellee came in. The conflict in the evidence is such that it is impossible to determine just what occurred between the parties at their meeting in Man-ton’s store, except that there was an exchange of blows between them and appellant was knocked down. The only undisputed fact is appellee’s admission in his plea of justification that he struck appellant with his hand, and that is guarded by the averment that it was done in necessary self-defense. Appellant testified that. appellee struck the first blow, and there is evidence in the record tending to corroborate his statement, but none supporting his testimony that appellee struck him with anything except his hand. Appellee testified that appellant struck the first blow and insists that the evidence supports the averment of his plea that the blow he struck appellant was given in his necessary self-defense. The jury saw the witnesses and heard their testimony, and it was their province to determine the facts in this conflict in the evidence. This they did in favor of appellee, which supports his plea of self-defense. Whether the evidence warranted the verdict was a question of fact peculiarly within the province of the jury to determine, and great weight is to be given to their finding. Courts are reluctant to substitute their opinion for that of the jury on a controverted question of fact. To justify this court in reversing on the ground that the evidence was insufficient, it must appear that the finding of the jury is not sustained by the evidence, or that it is palpably contrary to the decided weight of the evidence. Steffy v. People, 130 Ill., 98; People v. Horchler, 231 Ill., 566. We conclude from an examination of all the testimony, that we would not be justified in disturbing the verdict on the ground it was contrary to the evidence.

A minor question is raised as to the correctness of the ruling of the trial court upon the exclusion of certain testimony offered relative to the effect of the assault upon appellee, but we are of the opinion that there is no substantial ground for complaint in that regard. If the testimony excluded had been competent and admitted, it would in no way have affected the result, except to have increased the damages in the event of a recovery by appellant.

Appellant’s principal criticism of appellee’s instructions is that they do not accurately state the law as to the' amount of force that might justifiably be used in self-defense. On this question, the court instructed the jury that appellee “had the right to repel force by force, and in so doing to use such force as the defendant then believed was reasonably necessary under the existing circumstances.” This is not an accurate statement of the law. The instructions should have told the jury that his belief must have been such as a reasonable person would have entertained under the circumstances. Hulse v. Tollman, 49 Ill. App., 490. In Ogden v. Claycomb, 52 Ill., 365, a suit arising out of an assault and battery, the rule is stated in the following language: “Ho more violence can be used than a reasonable man would under the circumstances regard necessary to his defense.” But from this error in appellee’s instruction appellant can derive no benefit, for the reason that the same defective statement of the law appears in two of appellant’s instructions. The rule is well settled that one party cannot induce the court to instruct the jury upon the law in a certain manner, even though erroneously, and then have the case reversed by reason of the same error found in the instructions of an adversary. Woods v. Dailey, 211 Ill., 495. “A party cannot complain of an instruction given on behalf of his adversary like one given at his own request.” Springer v. City of Chicago, 135 Ill., 552; Purtle v. Bell, 225 Ill., 523.

Finding no material error of law in the record, the judgment of the lower court is affirmed.

Affirmed.


author: Mb, Presiding Justice Willis

text:
    People of the State of Illinois, Defendant in Error, v. Walter E. Healey, Plaintiff in Error.
    Gen. No. 4,887.
    1. Contempt—when witness not guilty of, for failure to obey subpmna. No witness can lawfully be punished for failure to obey a subpoena requiring his attendance upon court unless his witness fees have been paid or tendered to him or unless he has waived the same.
    2. Fees—what not waiver by witness. After a witness has failed to appear in response to a subpoena he does not waive his right to fees by failing to assign as his reason for not appearing a failure to pay or tender him his fees, where his failure to state such a reason is with respect to a person to whom he is under no obligation to state the facts.
    Contempt proceedings. Error to the County Court of McHenry County; the Hon. David T. Smiley, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed March 11, 1908.

      Ebnest C. Lutheb, for plaintiff in error.
    L. D. Lowell, for defendant in error.
   Mb, Presiding Justice Willis

delivered the opinion of the court.

A petition to probate a will was-filed in the County Court of McHenry county. One of the witnesses to the execution of the will, Walter E. Healey, lived in Elgin, Kane county. The person who presented the petition for the probate of the will obtained from the clerk of the court a subpoena for the attendance of said witness, directed to the sheriff of Kane county to serve and the same was served upon Healey. He did not appear in obedience to the subpoena. A petition was then filed in the County Court for an attachment against him for contempt, and an attachment issued. He was arrested and brought before the County Court of McHenry county. He filed a sworn answer setting up his reasons for not appearing. There was a hearing upon proofs presented. He was adjudged guilty of contempt and fined $25. This is a writ of error sued out by Healey to review said judgment.

Among other reasons set up in his answer why the judgment is not maintainable, is that when the subpoena was served upon him by the deputy sheriff of Kane county, he inquired of said deputy so serving said writ upon' him, whether he would pay his fees and charges as a witness, and "whether he had any money to pay him his witness fees and allowances under said writ of subpoena; and was told by said deputy that he had no money to pay him for his witness fees and allowances and no money to pay or tender him therefor; and that in fact Healey was at no time paid or tendered any witness fees or allowances or money on that account. It was admitted at the hearing that no witness fees or expenses of any kind were paid or tendered him.

It is a settled rule of law that in a civil case, no witness will be punished for contempt in failing to obey a subpoena requiring his attendance upon court, unless his witness fees have been paid or tendered to him, unless he has waived the same. Vol. 2, Tidd’s Practice, 3rd Am. Ed., 807; Rapalje on Witnesses, section 312; 30 Am. & Eng. Enc. of Law, 2nd Ed., 1188; Bonner v. People, 40 Ill. App., 628; Hollister v. People, 116 Ill. App., 338; Kipp v. Dawson, 59 Minn., 82.

In Bonner v. People, supra, it is said: “A witness will not be punished for failing to attend as a witness in a civil case unless his fees have been paid or tendered.”

In Hollister v. People, supra, it is held: “It has been the practice of trial courts to require the payment or tender of fees before issuing attachments for witnesses”; and further: “The imposition of a fine or the sentencing to prison is the rendering of a judgment in a criminal case, * * “ and in such case the guilt of the parties should be established beyond a reasonable doubt. Plaintiff in error cannot be held guilty unless his fees are paid or tendered.”

It was claimed on the hearing, that in a conversation over the telephone between plaintiff in error and the attorney who caused the subpoena to be issued, after plaintiff in error had failed to appear, he did not assign his reason for not appearing, failure to pay or tender him his witness fees, which is urged as a waiver.

We are of opinion that that did not constitute a waiver. The offense with, which plaintiff in error was charged and for which he was punished, and here charged as contempt, had been committed before that conversation was had. There was no rule of law requiring plaintiff in error to give his reasons to the attorney. The fact that plaintiff in error inquired of the officer when the subpoena was served, whether he had the money to pay his witness fees or expenses, shows that he relied upon his legal rights, which were that before he obeyed the mandate of the subpoena he was entitled to his witness fees and mileage. Ho waiver of this right is shown, and we are of the opinion that, for failure to tender him his fees and mileage, he was not subject to be punished for contempt.

Plaintiff in error is a lawyer, but was not an attorney in the proceedings out of which the alleged contempt arose. and is entitled to witness fees and mileage when called as a witness. Abbott v. Johnson, 47 Wis., 239.

The judgment of the County Court is reversed.

Reversed.