text:
    Rasmus Knudsen et al., Plaintiffs in Error, v. Lawson C. Houghton et al., Defendants in Error.
    Gen. No. 5395.
    1. Cebtioeabi—when writ lies. Certiorari lies to review the action of an inferior tribunal only; it is essential for the issuing of the writ that it must he from a superior to an inferior tribunal, one having a reviewing or superseding power.
    2. Cebtioeabi—when writ does not lie. The remedy by certiorari to review the proceedings of an inferior tribunal will not lie when a remedy by appeal is provided and no reason is shown why such remedy had not been availed of.
    3. Cebtioeabi—when Circuit Court without jurisdiction to issue. The Circuit Court having concurrent jurisdiction with the County Court has no jurisdiction to issue writs of certiorari to review the proceedings of the County Court in organizing a drainage district.
    4. Appellate courts—when without jurisdiction. The Appellate Courts have no jurisdiction to pass upon constitutional questions; until the Supreme Court has found to the contrary an act of the legislature must be assumed to be constitutional.

      Certiorari. Error to the Circuit Court of Bureau county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Writ dismissed.
    Opinion filed March 16, 1911.
    James J. Conway and W. K. Trimble, for plaintiffs in error.
    George S. Skinner and Jay L. Spaulding, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

On July 7, 1909, there was presented to the County Court of Bureau county a petition under the act entitled “An Act to provide for drainage for agricultural and sanitary purposes” in force June 1, 1885, asking for the organization of a special drainage district embracing certain lands in the towns of Manlius, Concord, Gold and Mineral in said county. Thereafter such proceedings were had, that on November 6, 1909, a final order was entered by the County Court organizing “The Hickory Creek Special Drainage District, County of Bureau, State of Illinois.” On January 8, 1910, Basmus Knudsen and others, landowners within the Special Drainage District, filed in the Circuit Court a petition, praying for a common law writ of certiorari, to cause the record of the organization of such district to be certified to the Circuit Court for review, and if on inspection such proceedings be found to be illegal, that the same be quashed. The court ordered the issuance of the writ. The respondents filed a transcript of the record and files of the organization of the district. The Circuit Court, on inspection of the record and proceedings, found the proceedings were legal, that the County Court had not exceeded its jurisdiction and that there was no want of jurisdiction either in person or in subject-matter and rendered judgment that the writ of certiorari be quashed. The petitioners have sued out a writ of error to review the judgment of the Circuit Court.

The defendants in error, the commissioners of the drainage district, have entered a motion in this court to dismiss this writ of error, for the reason that the writ of certiorari cannot be invoked when there is a direct remedy by appeal, and that the statute gives an appeal directly from the County Court to the Supreme Court, and therefore neither the Circuit Court nor this court has jurisdiction to review the proceedings of the County Court in drainage matters.

In 1909, the legislature passed “An Act to give Circuit Courts of this state and the Superior Court of Cook county, in term time, and the judges thereof, in vacation, concurrent jurisdiction with the County Court, in all matters pertaining to the organization of farm drainage districts, and farm drainage and levee districts, and the operation thereof, and to (repeal all acts in conflict herewith).” The first two sections thereof give the Circuit Courts “concurrent jurisdiction with County Courts in all matters pertaining to the organization of farm drainage and levee districts and the operation thereof” with that theretofore had by County Courts alone under the farm drainage and levee acts. The third section provides: “Appeals may be taken from the final orders, judgments and decrees from either of the county or circuit courts to the Supreme Court.” The fourth section repeals all acts or parts of acts in conflict therewith. Session Laws, 1909, p. 171. This act took effect June 5, 1909, before anything had been done towards the organization of the district in question. Prior to the passage of this act the County Court had exclusive original jurisdiction in such matters, and it was held that appeals from the County Court in such matters went to the Circuit Court under section 122 of the County Court act. Myers v. Newcomb Drainage District, 245 Ill. 140, which was a case pending in the Supreme Court at the time of the passage of the act of 1909.

Certiorari lies to review the action of an inferior tribunal only; it is essential for the issuing of the writ that it must be from a superior to an inferior tribunal; one having a reviewing or superseding power. Bell v. Mattoon Water Works Co., 235 Ill. 218; Comrs. of Drainage District v. Griffin, 134 Ill. 330; 4 Ency. Pl. & Pr. 80.

The remedy by certiorari to review the proceedings of an inferior tribunal will not lie, when a remedy by appeal is provided and no reason is shown why such remedy had not been availed of. Wright v. Highway Commissioners, 150 Ill. 138; Hegenbaumer v. Heckenkamp, 202 Ill. 621; Schaeffer v. Burnett, 221 Ill. 315; Trustees of Schools v. Shepherd, 139 Ill. 114.

By the act of 1909, the Circuit Courts are given concurrent jurisdiction with the County Courts, and appeals from the final orders of either Circuit of County Courts are provided for to the Supreme Court. The Circuit Court properly quashed the writ issued by it, for the reason it had no right to issue the writ to a court of concurrent jurisdiction; it is immaterial that it quashed the writ on a hearing upon the merits. This court is not concerned with the reason given for such action; it is the judgment of the Circuit Court that is here for review and not its logic. Plaintiffs in error contend that that part of the act of 1909 providing for appeals is unconstitutional for the reason the question of appeals is not mentioned in the title. This court cannot pass on that question and must assume it to he constitutional until the Supreme Court has held otherwise. It follows that the Circuit Court not having jurisdiction to issue the writ of certiorari to the County Court in a question involving the organization of a drainage district, this court has no jurisdiction and the writ of error is dismissed.

Writ dismissed.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Esther Holmes, Appellant, v. Albert L. Bartlett et al., Appellees.
    Gen. No. 5402.
    1. Statute of Limitations—what not defense to foreclosure. In this state, so long as a note is kept alive hy any person authorized to keep it alive hy payments or otherwise, a mortgage securing the note remains valid, and the personal representative of a decedent may stop the running of the statute of limitations either by-part payment, a promise to pay or such an acknowledgment of the debt as will imply a promise to pay.
    2. Statute of Limitations—who authorised to keep note alive. The executor of the maker empowered to run the business of such maker after his death has power to keep alive by payments a note secured by mortgage given by the testator in his lifetime.
    Foreclosure. Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed March 16, 1911.

      Statement by the Court. On November 8, 1886, Thomas Derwent’executed a note for $5,000 payable to the Rockford Insurance Company two years after its date with interest, and at the same time he executed a mortgage on certain parcels of real estate in the city of Rockford to secure the note. The mortgage was recorded November 10, 1886, in the recorder’s office, in Winnebago county. Thomas Derwent died testate October 9, 1891. The will provides amongst other things:
    “I desire all my property kept intact as hereinafter stated for the purpose of paying off my indebtedness and to that end, I hereby give, devise and bequeath all my property and estate of every name and nature to my executor hereinafter named to have and to hold the same in trust, as follows:
    “ (1) To carry on any business in which I may be engaged at the time of my decease and to lease my property and to so manage, have, hold, lease and control it as to produce the best possible income in the judgment of my executor.
    “ (2) Out of the rents and income annually, to pay first the expenses of this trust, all taxes, reasonable and necessary repairs and improvements on said property and apply annually so far as may be all the rest of ■ such income and rents in paying off the debts and liens on my property.
    “(3) Whenever in the judgment of my said executor it is deemed best to sell any or all of such trust property, the same may be done, and the proceeds derived from such sale shall be paid, so far as may be, upon such indebtedness and liens. Whenever such indebtedness shall be so paid and such liens discharged or sooner if deemed desirable by my said executor, I direct that said trust be determined and ended and all my property and estate (subject to said trust) be divided and distributed as follows:
    “To my son, Thomas J. Derwent, an equal one fourth thereof; to my daughter, Addie Derwent, a like one fourth thereof, to my said son Luther Derwent, a like one fourth thereof, and to my grand children or the survivor of them, if one he dead, Mabel E. Derwent and Walter E. Derwent share and share alike, the other one fourth thereof. In case where said trust is ended, any of said legatees or devisees be dead, leaving child or children, then living, such child or children share and share alike shall take such deceased one’s share.
    “I constitute Luther Derwent executor and trustee of this will * * # with full power to sell and properly convey any real or personal estate in his discretion for the purpose of executing this will and carrying out these provisions. In no event, shall such trust continue for a longer term than ten years after my death.”
    The will was probated and letters testamentary issued to Luther Derwent, November 12, 1891. The $5,000 note was never presented to the Probate Court as a claim against the estate.
    On June 23, 1894, Luther Derwent as executor conveyed to Albert L. Bartlett a part of the premises described in the mortgage by a deed containing a provision that the premises conveyed are subject to the mortgage made by Thomas Derwent to the Rockford Insurance Company * * *; that the principal of said mortgage is wholly unpaid, and the said Bartlett as a part of the consideration for the deed assumes and agrees to pay said sum and interest from the date of the deed. This deed is signed by Derwent as executor and by the grantee. Albert L. Bartlett after-wards conveyed the premises, so conveyed to him, to the A. L. Bartlett Company by a quit-claim deed, which provided that the grantee does not assume said mortgage.
    On December 29, 1906, Luther Derwent as exeeutor conveyed the remainder of the premises described in the mortgage executed by the deceased, Thomas Derwent, to Thomas Derwent, Adaline Derwent and Luther Derwent. In November, 1904, Eliza Fassett was negotiating with the holder of the $5,000 note and mortgage for their purchase but refused to purchase them without a statement of the amount due made by the representative of the Derwent estate. On November 21, 1904, Luther Derwent, executor, executed an instrument, as follows:
    “This is to certify that there remains due on the principal of the mortgage dated November 19, 1886, and recorded in Book 91 of Mortgages, page 20, of the Becorder’s office of said County, Four thousand five hundred dollars and no cents, and that the payment of the same is extended as to Five Hundred Dollars of the principal sum, two years from this date, and as to the remainder of said principal sum three years from this date, with interest thereon at six per cent per annum payable semi-annually. The above statement is correct to the best of my knowledge and belief. Estate of Thomas Derwent by Luther Derwent, Executor.”
    Eliza Fassett then bought the note which was subsequently thereto sold by her to Esther Holmes, the complainant. The executor and trustee paid the interest on the note up to June, 1894, and continued to act in such capacity until January, 1908, when he filed a final report in the estate and was discharged. Albert L. Bartlett made various payments on the note from the date of the deed to him down to May, 1908.
    'Esther Holmes filed this bill to the October term, 1908, of the Winnebago Circuit Court, to foreclose the mortgage executed by Thomas Derwent, deceased, against all the property described in it, and made the necessary allegations and parties. Thomas J. Derwent and his wife Emma C., Luther Derwent and his wife Emma W., and Adaline Derwent answered the bill setting up the statute of limitations. Albert L. Bartlett and wife and the A. L. Bartlett Co. answered denying the allegations of the bill. The court on the hearing entered a decree of foreclosure in favor of the complainant against the real estate conveyed by Thomas Derwent as executor to Albert L. Bartlett for $4,450.99, the amount due on the note with solicitor’s fees, but denied her a lien on the portions of the property conveyed by the executor to the devisees under the will of the deceased, holding that the Derwents took the property conveyed to them, freed from the lien of the mortgage because of the statute of limitations. The complainant appeals from that decree and assigns for error, that the court erred in not granting to her a lien (1) on all the property described in the mortgage and (2) on that portion of the property conveyed by the executor to himself.
    Fisher & North, for appellant.
    B. H. Garrett and A. D. Early, for appellees.
   Mr. Justice Thompson

delivered the opinion of the court.

There is no question concerning the facts in this case. The only question presented for our consideration is whether the statute of limitations pleaded by the devisees, the grantees of the executor of the mortgagor, is a defense to the foreclosure suit. The debt is the principal thing and the mortgage but an incident attached to the debt. The executor continued to act in the capacity of executor and trustee of the estate of the mortgagor until January, 1908. By the terms of the will the executor had full power and authority to continue the business qnd manage the estate for ten years after the death of the testator, or until October 9, 1901. The will conveyed the title to all the real estate of the testator to the executor in trust. The executor paid the interest on the note up to June 23, 1894, the time he conveyed part of the premises to Albert L. Bartlett. The executor contracted with Albert L. Bartlett and obligated him to pay the note and interest. By the deed made to Bartlett he had the right and it was his contractual duty to pay the note. By the terms of the will the executor had the right to keep the note alive until October 9, 1901, and any payment made within that time, by any person authorized by him to make such payment would have the same effect as if made by the executor. Waughop v. Bartlett, 165 Ill. 124.

On November 21, Í904, when the executor signed the certificate that $4,500 was unpaid on the note, he still held the title to all the remaining real estate covered by the mortgage that had not been conveyed to Bartlett, and was still acting as trustee and executor of the estate. While the will provided that the trust should not continue for more than ten years after the death of the testator, it does not mean that at the end of ten years the trust shall automatically cease, but it was his duty to close the trust within that time and interested parties might thereafter compel him to close the trust. The object of Eliza Fassett in getting the certificate made by him before she bought the note, obviously was to get from the executor, who still held title to all the real estate covered by the mortgage that he had not conveyed to Bartlett, a statement showing that the note and mortgage were still in force as to the real estate, the title of which was still held by the executor. The instrument executed by the executor at that time apparently was a consent to an extension of time against such real estate.

In this state, so long as a note is kept alive by any person authorized to keep it alive by payments or otherwise, a mortgage securing the note remains valid, and the personal representative of a decedent may stop the running of the statute of limitations either by part payment, a promise to pay or such an acknowledgment of the debt as will imply a promise to pay. Kraft v. Holzmann, 206 Ill. 548; Waughop v. Bartlett, supra; Whittaker v. Crow, 132 Ill. 627; Emory v. Keighan, 88 Ill. 482; Roberts v. Tunnell, 165 Ill. 631; Murray v. Emery, 187 Ill. 408; Holroyd v. Millard, 142 Ill. App. 392; Ott v. Flinspach, 143 Ill. App. 61; Perry v. Horack, 63 Kan. 88; Jackson v. Longwell, 63 Kan. 93; Skinner v. Moore, 64 Kan. 360. We are of the opinion that the payments made by Bartlett by the authority and procurement of the executor under the contract in the deed to Bartlett and the acknowledgment of the indebtedness made by the executor in 1904, kept the note alive and tolled the running of the statute. It is not necessary to say anything concerning the undivided third part conveyed by the executor to himself since that is included in the deed to his brother and sister with himself. The court erred in decreeing that the Derwents held the property conveyed to them freed from the lien of the mortgage. The decree is reversed and the cause remanded with instructions to the trial court to enter a decree of foreclosure against all the real estate covered by the mortgage, but that the real estate conveyed to Albert L. Bartlett be first sold to pay the indebtedness, and if that be insufficient, then, that the real estate conveyed to the Derwents, or such part thereof as is necessary, be sold to pay the deficiency remaining after the sale of the real estate conveyed to Bartlett.

Reversed and remanded with directions.


text:
    Mary Cooper, Appellee, v. John B. Cooper, Appellant.
    Gen. No. 5399.
    1. Sepaeate maintenance—when complainant entitled to decree. If the complainant continues to live in the home supplied by the defendant, using the credit of defendant for her necessaries and receiving in addition a cash allowance, she is notwithstanding living separate and apart without her fault if the defendant is living elsewhere in an adulterous state, inasmuch as said complainant would have the right to leave such home upon the defendant returning there.
    2. Sepaeate maintenance—how amount of allowance determined. The amount of the allowance in separate maintenance is to be based upon a consideration by the court of the property and income of the parties, their ages, health, habits, social condition and circumstances in life and the misconduct of the defendant.
    3. Sepaeate maintenance—when allowance for solicitor's fee excessive. An allowance predicated upon the solicitor for the complainant going to California to take depositions of witnesses who have already made statements as to their knowledge, is improper inasmuch as evidence could be taken by depositions at a much less expense than that imposed upon the defendant. Held, likewise, that an allowance of $25 per day for ten days to prepare for trial was under the evidence in this case excessive, but that under such evidence a trial fee of $300 was not excessive.
    Separate maintenance. Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed in part, reversed in part.
    Opinion filed April 6, 1911.
    A. L. Granger and Savary & Ruel, for appellant.
    Cooper & Hobbie, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Mary Cooper on February 24, 1910, filed a bill against her husband, John B. Cooper, praying for separate maintenance and an injunction. The bill alleges that the parties were married in 1881, and that they lived together until January 17, 1910, when complainant was compelled to and did cease living with and has ever since without fault on her part lived separate and apart from the defendant. The complainant in her bill “represents that, as she is informed and believes, the defendant on January 29, 1906, in the city of Los Angeles, California, and in said city on divers other days and times during the months of January, February and March, 1906,” committed adultery with one Florence Lee. The bill also contains similar allegations charging the defendant with adultery with said Florence Lee in Los Angeles in January and February, 1908, and in Kankakee, Chicago and Springfield at times unknown to complainant.

The complainant further alleges that on January 17, 1910, her husband left her in the city of Kankakee and did not inform her what his address would be and is still absent, that he has written to members of the family, the letters having been mailed on trains near Los Angeles, California, and that complainant believes the defendant is now living and residing near Los Angeles; that one Florence Lee left Kankakee about the same time as her husband and she believes her husband and said Florence Lee are now living together in a state of adultery; that in March, 1908, complainant became convinced that improper relations existed between her husband and the said Florence Lee; that her attorney called upon her husband and the said Lee in the city of Los Angeles and found them living together and so informed complainant; that afterwards complainant reproached her husband with his said conduct and he thereupon promised that said improper relation would cease; that the defendant continued such improper relation, as she believes, and has treated complainant harshly and sworn at her, and refused to pay store bills for necessaries, and failed to provide complainant with money commensurate with his wealth, but that complainant endeavored to live with him, dreading exposure and publicity, and desiring to do for the best interests of their children; that there have been bom of said marriage four children of whom Alen aged twenty-two and Glenn aged ten are living with complainant; that the complainant has no income or property; that the defendant is the owner of a homestead in Kankakee worth $10,000, of farm lands in fee simple worth $80,000, a life estate in lands worth $65,000, and a life estate in lands worth $50,000, subject to a prior life estate of his mother, and that his annual income is $6,000. The bill alleges that when he left he made no provision for her except to leave checks with her for five dollars per week dated ahead; that he intends to return within sixty days, and that on his return he will come to his home and it will be impossible for her to preserve her status of living apart from him. The prayer of the bill is that defendant be enjoined from returning to his home and for a suitable provision for the separate maintenance of the complainant. A temporary injunction was granted as prayed.

The defendant answered the hill denying that he is living separate and apart from his wife in contemplation of law, hnt admitting he left at the time alleged to go to California to spend the winter, to get relief from throat trouble from which he could only get relief in a mild climate, as he has done for many years, but with the intention of returning in the spring; stating that he provided the complainant with checks for incidental expenses during his absence; that complainant also received $25 per month rental for part of the residence, and that she had full credit on his account for the usual family expenses at all the stores in Kankakee. The answer denies all ill treatment alleged, and denied that he had any improper relations with Florence Lee. The answer further states he is willing to allow his wife a reasonable support if the court finds she is living separate and apart from him within the meaning of the statute. The answer admits the ownership of property as alleged in the hill, and states that he owes $25,000 on which he pays interest; that the taxes and repairs amount to $1,000 per year and that a crippled son, Harry, occupies 120 acres of the land from which defendant receives no income.

The complainant filed a verified petition for temporary alimony, suit money and solicitor’s fees, supported also by an affidavit of one of her counsel, in which counsel enumerates the different items for which an allowance is claimed.

The court made an order allowing to complainant $25 per day for fifteen days going to and returning from California to take depositions; $25 per day for ten days preparing for trial and a trial fee of $300, a total of $925 to pay solicitor’s fees; $50 for procuring the attendance of witnesses and stenographer’s fees in California; $290 as other suit money, composed of $215 traveling expenses to California and $75 for procuring the attendance of witnesses and preparing evidence to he produced in open court, and $75 per month alimony. The defendant appeals from that order.

It is contended by appellant that tbe complainant is not living separate and apart from Mm while she occupies the home, wMch is furnished by him, and she continues to be supported by him through his credit at stores where the parties trade and has checks of appellant for five dollars per week for incidental expenses, and that the court erred in allowing $75 per month temporary alimony. The allegations of the bill in substance are that when it was filed the appellant was living in an adulterous relation with Florence Lee in California, where appellant had gone to spend the winter, leaving appellee living in his residence in Kankakee. Appellant admits that the parties are not living separate and apart because of any fault on the part of appellee. If the allegations of the bill be true, it would not be questioned but that the appellee would be justified in leaving the home if appellant should return to live there, and that appellee is entitled to a decree for separate maintenance; the amount of the allowance to be based upon a consideration by the court of the property and income of the parties, their ages, health, habits, social condition and circumstances in life and the misconduct of the appellant. Harding v. Harding, 180 HI. 481. No question is raised concerning the propriety of the injunction restraining the appellee from returning to his home until the further order of the court. Appellee contends that because of Ms alleged adultery she was justified in living separate from appellant, and that she was not supported as a wife should be in her situation and the circumstances of her husband. The necessary expenses of a bare living are not all she is entitled to, but she should be maintained and supported consistently with her station in life and the financial ability of her husband. We are of the opinion that it is immaterial where appellee resided, provided she was not living with appellant, and immaterial that he paid her necessary household expenses, when the alleged misconduct is considered, except that such matters should he considered in determining how much if anything additional should be paid by appellant.

The affidavit filed by appellee on the motion for temporary alimony shows that she believes the income of appellant is “upwards of $6,000 per year.” The answer and affidavit of appellant show the items of which his property consists; that he is receiving the income from 790 acres of farm land which rents at from four to seven dollars per acre, or “at an average of six dollars per acre;” that he supports a crippled son by giving him the use of another 120 acres of land practically free from rent; that he also has a life estate in 330 acres of land subject to a prior existing life estate; that there is a mortgage of $20,000 on part of his lands on which he pays six per cent interest per annum, and appellant owes other notes and accounts amounting to $5,000 bearing interest; that the taxes on his lands are $500 and the necessary repairs amount to $500 annually. From this showing appellant’s gross income does not exceed $5,000 out of which he pays $1,500 interest and $1,000 in taxes and repairs, leaving his net income about $2,500. Appellee admits she had checks for $5 per week and does not deny she was receiving $25 per month rent of rooms in the residence, from entering which appellant was enjoined, or that she was using and had credit on appellant’s account for all household expenses at the stores, which expenses appellant was paying at the time the order for temporary alimony was made. Appellee having checks for $5 per week, collecting $25 rent per month, and having all household expenses paid by appellant, was receiving all she was temporarily entitled to. The order for $75 per month should not have been made for the reason she was already as amply provided for by appellant as his.income justified.

It is insisted the court erred in allowing $375 attorney’s fee to take depositions in California, $215 traveling expenses in connection -with, taking snch depositions, $250 for counsel to prepare the' case for trial, and $300 for a trial fee. The affidavit made by one of her solicitors states that he has the statements of three witnesses at Los Angeles and one at San Francisco as to the conduct of defendant with Florence Lee; that he knows of two other necessary -witnesses at Los Angeles, whose testimony he believes to be material, but he has not interviewed them and does not know the exact nature of their testimony; and that there is other testimony that could be obtained by a trip to Los Angeles; that said evidence can only be satisfactorily taken to be used on the trial by affiant going to Los Angeles and San Francisco; that fifteen days would be consumed in traveling and taking depositions and that his reasonable fees for such time would be $25 per day; that a stenographer’s fee, notary’s fee and costs of procuring the attendance of witnesses would be $50; that his hotel bills would amount to $35; that his railroad fare would be $110 with $30 to be added thereto for a berth in a sleeper; that to prepare the case would take ten days for which a reasonable charge would be $25 per day; that a reasonable trial fee would be $300; that $75 will be required to get witnesses to view the real estate of defendant, and there should be allowed $300 to complainant for other costs and expenses.

The statute (chapter 68, sec. 22) provided that, “the court may grant allowance to enable the wife to prosecute her suit as in cases of divorce.” It follows from what has been said that the appellee, being without means of her own is entitled to a decree for her necessary and reasonable costs and solicitor’s fees. It appears from the affidavit of counsel that he has “the statements and evidence of three witnesses as to said acts and conduct alleged in said bill, which said three witnesses now reside at or near the city of Los Angeles,” and the statement of another witness at San Francisco. Having such information, there is no reason shown requiring the allowance of attorney’s fees at the rate of $25 per day for fifteen days and $215 for traveling expenses from Kankakee to California. The statute provides for the taking of depositions in foreign states upon either written or oral interrogatories. The attorney having written statements of the witnesses, their depositions could as well be taken upon written interrogations or local counsel could have been employed to propound the questions. There is no necessity for making the appellant pay attorney’s fees at the rate of $25 per day for an attorney while traveling to and from California and his traveling expenses. If going to California can be justified it might become necessary to go to Paris or London or Hongkong. Neither can the allowance for these purposes be sustained on the theory that it was necessary for the attorney to go to California in the capacity of a detective. Investigations of that nature are not in the line of the professional duties of a solicitor in chancery.

The only issue in the case was whether the appellant was guilty of adultery since the offenses, if any, prior to March, 1908, had been condoned. There is little room for controversy over the amount of his income, that being solely a question of rents received from farm lands, which the answer does not make materially different from appellee’s allegations in that regard, with the exception that appellee makes no statement as to appellant’s indebtedness and his taxes and repairs. The court also allowed $25 per day for ten days to be spent in preparing the cause for trial. When the simplicity of the issue and the frequency of such issues are considered we can see no reason for such an allowance. An allowance by the day for such a length of time should not be made. Farrell v. Farrell, 149 Ill. App. 47.

The court also allowed $75 “for procuring the attendance of witnesses and preparing evidence to be produced in open court on the trial,” and a trial fee of $300. It is contended the allowance for a trial fee is excessive. This was a matter resting in the sound judicial discretion of the court on a consideration of all the circumstances surrounding the case. She was entitled to a sufficient sum to have her case properly presented. When the facts of the serious nature of the charge, the financial condition of appellant and that he had employed two firms of lawyers to defend himself are considered, we cannot say that the allowance of $300 for a trial fee is so excessive as to warrant the interference of an Appellate Court.

The decree is reversed as to the allowance of $25 per day for fifteen days going to and returning from California to take depositions, as to $210 traveling expenses for an attorney going to and returning from California and as to the allowance of $25 per day for ten days preparing to try the case and as to the allowance of $75 per month as temporary alimony; and the decree is affirmed as to $50 allowed for procuring the attendance of witnesses and stenographer’s fee in California, as to $75 for procuring the attendance of witnesses and preparing evidence to be produced in open court and the trial fee of $300. Appellant will pay the costs of this court.

Affirmed in part, reversed in part.


text:
    Evelyn M. Harmon, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5408.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against tbe evidence even though the defendant’s theory appeared to be sustained by more evidence than that of the plaintiff. In order to justify the setting aside of the verdict as against the evidence there must be a clear preponderance in favor of the defendant.
    2. Negligence—when violation of ordinance will not support recovery. Negligence unless it appears to have been the proximate cause of the injury complained of, will not support a recovery.
    3. Negligence—when prior acts not competent. Negligence at a particular time cannot be established by proof of similar acts of negligence at other times.
    4. Negligence—when proof of custom competent. A custom of stopping cars at a particular point upon a street is competent in connection with the determination of the question as to whether or not it is negligence to run a car past another car which is in the act of discharging passengers.
    5. Ordinary care-—when proof of custom competent. The custom of a traction company to stop its cars at a particular place being shown to have been known to the plaintiff may be competent as bearing upon the exercise of ordinary care.
    6. Evidence—effect where competent for any purpose. If evidence is properly admissible under any issue in the case, or for any purpose, it should not be excluded. The effect, however, should be limited to its proper office in the case, and the party desiring its effect limited should request an instruction limiting it to the purpose for which it was admitted.
    7. Instructions—approved form upon right of recovery. An instruction as follows is approved and specifically held not erroneous with respect to its statement of the law as to the exercise of ordinary care.
    • “The court instructs you that if you believe from the greater weight of the evidence that the defendant was guilty of the negligence, in manner and form as charged by the plaintiff in her declaration, or some count thereof, and that the plaintiff was injured thereby, while she was in the exercise of that degree of care and caution for her own safety that a reasonably careful and prudent person would have exercised under all the existing curcumstances, at the time it is claimed she received the alleged injuries, then you should find the defendant guilty.”
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 6, 1911.
    Le Forges, Vail & Miller, George W. Burton, H. C. Dillon, and George T. Black, for appellant.
    Quinn, Quinn & McGrath, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This is an action on the case brought by Evelyn M. Harmon against the Peoria Railway Company to recover for injuries sustained by her from being struck by one of appellant’s street cars in the city of Peoria. The case was tried on a declaration consisting of five counts. The first count avers that plaintiff became a passenger on one of defendant’s cars going south on "Washington street, and alighted therefrom near the corner of Harrison street and as she walked around the rear end of the car to cross the street, she came to the east track of defendant, and while she was crossing the same in the exercise of due care, she was struck by another car of defendant running north at a high rate of speed on the east track of defendant’s double track street railway, and avers that defendant negligently ran said car against her without any warning. The second count is similar but avers a custom of defendant, at that street crossing, to stop its south bound cars north of the north line of Harrison street, and that defendant negligently ran its cars in a northerly direction on its east track at a high rate of speed without ringing a bell, while the car from which she alighted was standing still. The third count is similar to the second, but avers more of the details. The fourth is based on an ordinance requiring a gong to be sounded on cars while approaching crossings for at least one hundred feet and until the crossing is reached, and avers a failure to comply with the ordinance on the car by which she was injured. The fifth is based on an ordinance requiring street cars to stop at street crossings with the rear platform of the car at the further side or walk, so as not to interfere with travel at street intersections, and avers that the car from which plaintiff alighted was negligently stopped at the “near side of walk,” etc. Plaintiff recovered a verdict and a judgment for $3,500, from which the defendant appeals. ■

The proof shows that Washington street in Peoria runs north and south, and that the defendant operates a double track electric street railway on it. The cars running south use the west track, and the north bound cars the east track. Harrison street runs east and west across Washington street in a busy business portion of the city. The Board of Trade Building is situated at the northeast corner of the intersection of these streets and is sixty-seven feet wide with the main entrance in the center of the Washington street front.

Appellee was a stenographer employed in the Board of Trade Building. About one o’clock on December 1, 1908, appellee got on a car on Washington street coming from the north towards Harrison street. As the car passed the street next north of Harrison street there were only three passengers on the car. A young lady, a companion employed in the same building with appellee, signalled the conductor to stop at Harrison street. The conductor gave the motorneer the signal to stop at Harrison street, opened the rear car door and called the street. Appellee and her companion testified that the car stopped on the north side of Harrison street with the front platform about even with the north cross walk, and other witnesses testified that after the accident the car was still standing there. Appellee and her companion got off the car at the west rear door, walked around behind the car and started to cross the east track opposite the entrance to the Board of Trade Building, when she was struck by tbe left hand corner of the front vestibule of a car going north and her leg was broken. The conductor and motorneer of both cars, two of whom were not in the employment of appellant at the time of the trial, and one other witness, testified that the car appellee was riding on did not stop at the north crossing, but slowed down to two or three miles an hour, and that it did not stop until it passed the south cross walk.

The evidence is conflicting as to whether a gong on the car that struck appellee was ringing or not. The evidence of appellee is that she neither heard nor-saw the car until it struck her and does not know of her own knowledge that it was a car that struck her; her companion and one other witness testified they heard no gong. The conductors and motorneers on the two cars all testified that the gong on the car that collided with appellee was ringing as the car approached Harrison street and until the accident.

On behalf of appellee her companion testified as to the speed of the car at the time of the accident that it was going at the rate of six or seven miles an hour and one other witness testified it was going fifteen miles an hour at that time, and that it went about sixty feet after the accident. On behalf of appellant the evidence of five witnesses, the motorneers and conductors, two of whom are not now in the employment of appellant, and a disinterested witness, is that the car was going at not to exceed from four to six miles an hour at the time of the accident, that the schedule time was twenty-four minutes for three miles and that it is a rule of the company to ring the gong as they approach street crossings and pass other cars and to go slow in passing street crossings and other cars.

The space between the cars as they pass is less than two feet. The motorneer on the car that collided with them testified he did not see them on account of the other car until they were about to step upon the track his car was on and the car hit them, and that at that time the rear of the other car was about op posite the middle of his car. The motorneer on the car that struck appellee, not now in the employ of appellant, testified that when he first saw the appellee and her companion they were just stepping over the east rail of the southbound track; that they were bent over with their heads toward the wind facing almost directly toward the Board of Trade Building; that the fender was down about four inches above the track and extended four or five feet in front of the car and reached over each rail; that he dropped the fender on the rails and did all he could to stop the car; that the part.of the car that struck appellee is the part where the steps join onto the body of the car, and that the girls were walking fast and ran against the car. The conductor of the car appellee got off, testified he was on the rear end of the car they got off, that he saw the other car coming as appellee and her companion were crossing the track his car was on; that his attention was attracted by the ringing of the gong and he called to the girls to look out for the other car but does not think they heard him; that they were walking fast in a stooped position; that he thinks appellee had her hand up holding her hat with her head bent toward the approaching car with her face directed away from the car, and that they ran against the side of the front vestibule. Another witness in the employ of the Gas Company testified he saw the girls running across the street with their heads in a stooping position, and that it seemed they were looking down to the ground running across the street.

Appellee denied that she ran across the track and that she had her hand up holding her hat. She also testified she was familiar with the way ears ran on the double track system at that place and rode on them daily; that it had been the custom of appellant for two or three years to stop the cars on the south bound track at the place where she was injured and for her to alight there; that she knew the distance between the cars when they passed; that she waited behind the car she got off, directly behind it; that when she started aronnd the end of the car she did not know that a car might be approaching from the south because “I had no warning of the car and I never dreamed or anticipated for one minute that a car was coming there;” and that ‘ ‘ of my knowledge, I don’t know what hit me. ’ ’

The question of (1) whether the car that collided with appellee was run at a dangerous rate of speed, (2) whether a bell or gong was kept ringing or sounding for at least a distance of one hundred feet until an intersecting street is reached, and (3) whethei} appellee at the time of the injury was in the exercise of due care, are questions of fact upon which the evidence is conflicting and on which reasonable men might disagree. Appellant appears to have more evidence on the first two questions than appellee but we cannot say there is such a clear preponderance of evidence in favor of appellant on the questions of negligence that we should disturb the verdict, or that appellee did not prove she was in the exercise of due care by a preponderance of the evidence.

Under the ordinance introduced in evidence requiring the sounding of a gong, appellant was not required to sound it after Harrison street was reached by the north bound car. The terms of the ordinance do not require the sounding of the gong by the north bound car for a distance of about ninety feet before it reached the place where the accident happened, and we are of the opinion that the judgment could not be sustained under the fourth count, for the reason that the evidence presented by appellee does not 'show the bell was not sounded before Harrison street was reached but does tend to show the gong was not sounded after such street was reached and while passing the standing car.

The fifth count avers an ordinance requiring appellant to stop its cars “with the rear platform of the car at the further side or walk thereof, so that the car when stopped shall not interfere with public travel on such intersections or crossings.” The car that struck appellee had no passengers to get off at Harrison street and hence did not stop at that intersection. It does not appear that the violation of that ordinance was the proximate cause of appellee’s injury; so far as the evidence shows the accident might have happened in the same way had the car stopped at the far crossing.

The appellee proved by a number of witnesses, against the objection of appellant, the custom of appellant for several years to stop its cars going south in front of the Board of Trade Building. The overruling of objections to this character of evidence is assigned for error. This evidence was not proper to prove the fifth count, for the reason that the negligence alleged could not be proved by similar acts at other times. West Chicago St. Ry. Co. v. Torpe, 187 Ill. 610; Taylor Coal Co. v. Dawes, 220 Ill. 145; Hackart v. Decatur Coal Co., 243 Ill. 49; C. B. & Q. R. R. Co. v. Lee, 60 Ill. 501; Chicago and Alton Ry. Co. v. Johnson, 128 Ill. App. 20. However, we hold that this evidence was competent under the third count, which avers a custom of appellant for many years to stop its cars in front of the Board of Trade Building, for the accommodation of patrons of appellant who were occupants of that building. It was incumbent on appellant to use ordinary care to avoid injuring travelers on the street. If it was the custom of appellant for many years to stop its cars where the south bound car stopped to let appellee alight, then appellant had knowledge of the custom, and knowledge of appellant was knowledge to its employes. In such case ordinary care on the part of appellant would require more caution in running its cars past a car, standing or moving slowly at that place, than passing a car at a place where appellant was not accustomed to stop for passengers to alight. If it were the custom of appellant to stop its cars on the west track at the north side of Harrison street for its patrons to alight and go from the north end of the car directly to the entrance of the Board of Trade Building, then ordinary care in running a car on the other track past the standing car would require the same care that the law requires to be exercised in passing a car discharging passengers on a sidewalk crossing. It may be a question in the mind of a reasonable person whether it is not negligence in a common carrier to run a car past another car discharging passengers at a place where it is accustomed to discharge them, "We are of the opinion that the evidence was competent to prove the knowledge of appellant, and its employes in charge of its cars, of the danger arising from such custom, to parties alighting from its cars and going towards the Board of Trade Building. Chicago City Ry. Co. v. Lowitz, 218 Ill. 24; Chicago City Ry. Co. v. Sugar, 117 Ill. App. 578. If evidence is properly admissible under any issue in the ease, or for any purpose, it should not be excluded. Ruggl;es v. Gratton, 50 Ill. 412; People v. Hagenow, 236 Ill. 514. The effect however should be limited to its proper office in the case, and the party desiring its effect limited should request an instruction limiting it to the purpose for which it was admitted.

Appellee and her companion testify the car that struck them gave no warning of its approach. The evidence as to the distance the car went after the accident before it stopped, with the fact that it was going up grade, tends to corroborate the evidence of appellee that the car was running at a dangerous rate of speed in passing a car discharging passengers. Whether or not the appellant was negligent in running its cars and whether the appellee was in the exercise of due care at the time of the accident were,- under the evidence in this case, questions peculiarly within the province of a jury and we cannot say there was manifest error in the verdict. Judgments have been sustained where the party struck was either killed or injured under similar circumstances. Stack Admr. v. East St. L. Ry. Co., 245 Ill. 308; Chicago City Ry. Co. v. Robinson Admx., 127 Ill. 9; Rastetter Admx. v. Peoria Ry. Co., 142 Ill. App. 417; West Chicago St. Ry. Co. v. Nilson, 70 Ill. App. 171.

It is also contended that there was error in giving appellee’s first instruction. The instruction is:

“The court instructs you that if you believe from the greater weight of the evidence that the defendant was guilty of the negligence, in manner and form as charged by the plaintiff in her declaration, or some count thereof, and that the plaintiff was injured thereby, while she was in the exercise of that degree of care and caution for her own safety that a reasonably careful and prudent person would have exercised under all the existing circumstances, at the time it is claimed she received the alleged injuries, then you should find the defendant guilty,” etc.

Appellant insists that the case of Krieger v. Aurora, Elgin & C. R. R. Co., 242 Ill. 544, is decisive in favor of its contention. The first three counts in the declaration in this case aver “that in crossing said street as aforesaid she came to and started across said track nearest the easterly side of said Washington street; that she was then and there in the exercise of due care.” The fourth count avers she was in crossing said Washington street in the exercise of due care. The fifth count avers that plaintiff after alighting from said car at the time and place aforesaid and while in the exercise of due care, etc. These counts all aver due care from the time she alighted and while crossing Washington street; the averment of due care is not confined to the time she was crossing the track upon which she was injured, but covers all the time she was on the street, so that the Krieger case is not in point. Furthermore, the instruction itself refers to the negligence alleged in the declaration and does not refer to the allegation concerning due care. The statement in the instruction is, if the jury believe from all the evidence that while she was in the exercise of that degree of care and caution for her own safety that a reasonably careful and prudent person would have exercised under all the existing circumstances at the time, etc. The instruction clearly applies to all that appellee did in crossing the street and is free from the error contended for. Moreover, the court at the request of appellant gave seven instructions to the jury on that question. Five of these are very lengthy and argumentative and direct the jury’s attention to particular facts that appellant considered show a want of due caution. The appellant has no cause of complaint concerning instructions, since they are much more favorable to appellant than it was entitled to.

It is also insisted it was error for the court to refuse instructions directing a verdict for the appellant on each of the counts. If there is one good count supported by the evidence, it is not error to refuse to direct a verdict on the other counts which may not be supported by the evidence. Scott v. Parlin & Orendorff Co., 245 Ill. 460.

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

Affirmed.


text:
    Peter Soens, Administrator, Appellant, v. The Chicago, Wilmington & Vermilion Coal Company, Appellee.
    Gen. No. 5405.
    1. Negligence—what not attractive nuisance. In this case a claim was made that the defendant was liable upon the theory that it maintained upon its premises a dam, pond, etc., which constituted an attractive nuisance. A recovery, however, was not allowed.
    2. Negligence—what not competent to establish. Evidence of the absence of a railing upon a culvert is not competent as against a defendant who is not in possession or control of such culvert.
    3. Contributory negligence—when minor may be guilty of. A minor over the age of seven years may be guilty of contributory negligence.
    4. Ordinary care—what required of child above eleven years of age. A minor above the age of eleven years is required to exercise such care as a child of its age, capacity, experience and intelligence might reasonably be expected to use under similar circumstances as those which resulted in the injury in suit.
    5. Trial—when conduct of juror will not reverse. An improper comment made by a juror out of court during the pendency of the trial will not reverse if such comment was p'roveyed by the improper conduct of the party seeking to avail thereof as ground for new trial; if such party had desired to avail of such improper comment he should have called the attention of the court thereto during the trial, in which case the trial court might properly have discharged the jury.
    6. Verdicts—how cannot be impeached. Affidavits of jurors as to the manner in which they arrived at their verdict are incompetent to impeach the verdict rendered by them.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    George E. Glass, for appellant.
    Boys, Osborn & Griggs and McDougall & Chapman, for appellee.
   Mr. Justice Thompson

delivered tlie opinion of the court.

This is an action in case brought by Peter Soens, administrator of the estate of his deceased son, Matthew F. Soens, against the Chicago, Wilmington and Vermilion Coal Company to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.

The declaration avers that the defendant possessed and occupied certain tract of land for the purpose of mining coal through a shaft dug by it on said land, and maintained thereon houses, boilers and other machinery; that a natural -watercourse runs across said land and discharged into the Vermilion river half a mile distant; that the defendant negligently erected a dam across said watercourse on its land causing a pond of water to he gathered of the length of 200 feet, of the width of 150 feet and of a depth of 18 feet; that the pond extended to the public highway, was located in a populous neighborhood and dangerous to the lives of a large number of citizens, and to the lives of a large number of children of tender years, incapable of exercising ordinary care, who passed by the edge of the pond upon a public highway on their way to' and from school and who might he attracted thereto; that it was the duty of the defendant to remove said dam, yet the defendant permitted it to remain in such dangerous condition that the deceased, a child of tender years, incapable of exercising ordinary care, while on his way home from school was attracted thereto and fell into said pond and was drowned.

The second count contains the additional averment that there were rafts on the pond which it was the duty of defendant to remove and that the deceased by going upon the rafts was drowned. Another count has the further averment that it was the duty of the defendant to watch, guard and fence the pond. A verdict was returned in favor of the defendant upon which judgment was rendered and the plaintiff appeals.

The evidence shows that the appellee possessed about twenty-five acres of land upon which it operated a coal mine having the usual buildings appurtenant to the operation of a mine. The mine is situated about a quarter of a mile north of Heenanville, a small hamlet of about three hundred population. A railroad runs east and west across the property just south of the shaft and main buildings with a switch track running around the north side of the main buildings. Two small streams of water, one coming from the north, the other from a little north of east, unite on appellee’s property north and west of the shaft and buildings about five hundred feet south from appellee’s north line and some six or seven hundred feet southwest from its northeast boundary. The stream formed by the union of the two flows southwesterly through a valley about two hundred feet wide with steep banks, towards the Vermilion Eiver half a mile distant. A public highway runs north on the east side of the appellee’s property, across the railroad, then northwest about eight hundred feet, then west on the north and northeast sides of the appellee’s property. Several years prior to 1904, appellee built a dam across the valley about .two hundred feet below the junction of the streams, making a pond of about an acre and a half in extent north and west of the shaft. Two arms extend from the pond: one north across the public highway running east and west on the north, and the other easterly across the highway that runs on the northeast of appellee’s property. Each arm crosses the highway about 400 feet from the angle where the road turns directly west. Culverts are built in the public highway where it crosses these arms. The water in the north arm at the culvert is about eight feet deep; at the culvert over the east arm it is about three feet deep. Earth is graded over the culverts leaving the driveway over the culverts about twelve feet wide. The school house that the children from Heenanville attended, is situated about three quarters of a mile northwest of the coal mine. There are two public highways to the school from Heenanville, one the road that runs on the east side of the appellee’s property, then northeast across the east arm, then west across the north arm and continuing on west about half a mile to a north and south road, then north half a mile to the school house; the other road runs west from Heenanville until it intercepts the north and south road that runs to the school house. A path also was sometimes used that ran across the appellee’s land past some of its buildings over the dam, and near the west side of the north arm to the highway that runs west on the north side of appellee’s property. This path was used by miners coming from the north and south to their work. The only places on the highway from which the pond can be seen are where the arms cross it; the land between the main pond and the road on the northeast and north side of appellee’s property is covered with timber and shrubbery concealing the pond except where the arms cross the road.

The deceased on July 9, 1904, was a bright boy about eleven years and four months of age, of average intelligence who had regularly attended school. On that day he had been at school and on returning home with other children followed the road south until they came to the road that runs on the north side of appellee’s property, then they followed that road east until they came to some bars in a fence by the side of the highway enclosing the appellee’s land west of the north arm of the pond. The deceased with other children went through the bars and along the path on the west side of the north arm of the pond, over the dam and then east on the south side of the pond about 250 feet, where they found a raft about eight feet square made of plank and a door of a box car floating on the pond. Chris Redding, a boy a year older than Soens> suggested that they take a ride on the rafts, and asked Annie Blue, aged thirteen, and Alma Redding, his sister, aged nine, to get on the rafts with them. The girls were afraid and objected and the danger of such an adventure was discussed amongst the children at that time. The decedent got on the door of the box car and pushed it out into the pond with a pole; Chris Redding got on the raft and pushed it out. The Red-ding boy then came back to the shore with the raft and Alma Redding, his sister, and Annie Blue were persuaded to get on it with him. The raft with the three on it was then pushed out into the pond fifteen or twenty feet and the Soens boy came back with the car door to where they were with the raft and persuaded the occupants of the raft to get on the car door, managed by him. In getting from the raft to the car door, the door was upset, and the boys and the Blue girl were drowned. The raft had been made by one of the miners for his own pleasure and had been on the pond about ten days. Other rafts had been made by some of the miners and placed on the pond before that time but they had been destroyed as soon as placed on the pond, by a miner who lived just west of the north arm of the pond, because of the danger to children, but the maker of the raft which the children got on had told the miner who destroyed the others that this-must not be destroyed because it was made with company lumber.

It is contended that the court erred in sustaining objections to certain evidence offered in behalf of appellant. Appellant sought to prove that there was no railing to prevent any one from falling into the north arm of the pond off the culvert in the highway. This culvert was in the public highway some 500 feet from where the decedent got on the raft. It was under the control of the highway commissioners of the township and not of the appellee. The culvert or the absence of a railing from it did not have any connection with or in any way contribute to the death of the decedent.

It would have been error to have admitted such proof.

Appellant also sought to prove by a witness that he had negotiated with appellee’s manager with a view to having appellee donate a lot south of the mine shaft upon which a school house might be erected and thus have a school house in Heenanville. Such fact was irrelevant and had not the slightest connection with or bearing on the alleged cause of action. There was no error in the rulings on evidence.

It is also, assigned for error and argued that the court erred in refusing instructions one and two and in modifying instructions three, four and six requested by appellee. Instruction one assumes tbat the deceased was a child of tender years incapable of exercising any care or discretion, and states that if the jury believe certain facts to be proved, many of which are totally at variance with plaintiff’s evidence, then the jury should find for the plaintiff. This instruction was based on the plaintiff’s theory, that on which the declaration was drawn, that the decedent was a child so young that the law conclusively presumes that he was incapable of contributory negligence. The law seems to be settled in this state that such presumption is not applicable to children over the age of eleven years; above that age it.is a question of fact to be submitted to the jury whether they wére exercising such care as a child of their age, capacity, experience and intelligence might reasonably be expected to use under similar circumstances. Chicago City Ry. Co. v. Tuohy, 196 Ill. 410; Perryman v. Chicago City Ry., 242 Ill. 269; Chicago City Ry. v. Wilcox, 138 Ill. 370. The instruction is involved, argumentative, and takes away from the jury the question of whether the facts stated constitute negligence on the part of the appellee. It was properly refused.

The second refused instruction starts out by informing the jury that it is not necessary for plaintiff to prove, and then states “on the contrary it is sufficient if the jury believe” certain things, but makes no reference to the fact that the boy was required to use such care as a boy of his age, capacity, intelligence and experience might reasonably be expected to use under similar circumstances. Clearly it would have been error to give it as asked.

The third and fourth instructions said that if the jury “believed from a preponderance of the evidence that the deceased exercised such a degree of care and caution as persons of his age, capacity and experience might reasonably be expected to naturally and ordinarily use under the circumstances in which he was placed,” etc. The court inserted the word “intelligence” after the word capacity. This statement of the law has been approved. Lake Erie & Western R. R. Co. v. Klinkrath, 227 Ill. 439; Star Brewery Co. v. Hauck, 222 Ill. 348; Wabash Ry. Co. v. Jones, 121 Ill. App. 390. The modification in the sixth instruction was in erasing the words “or boats” where the instruction referred to “rafts or boats” and also the phrase ‘ ‘ as alleged in plaintiff’s declaration. ” We see no error in the modifications.

The only complaint made concerning the appellant’s given instructions is that they “ignore the principle of law that a child of tender years incapable of exercising ordinary care is only required to use so much care as one of his age would naturally and ordinarily exercise under the same circumstances, and nowhere announces the law applicable to the facts.” Appellant does not refer to any particular instruction or point out what instructions he claims to be erroneous. The only instruction in the record asked by the appellee on that question is the tenth which states that “the degree of care and caution required of deceased, was such a degree of care and caution as a boy of the age, capacity and experience and intelligence of the deceased would naturally exercise under the circumstances.” This correctly states the law as laid down in the cases cited supra.

It is also contended that a new trial should have been granted because it is alleged one of the jurors was prejudiced against appellant and had expressed an opinion about the case during the trial. After the verdict was returned appellant in support of his motion for a new trial made an affidavit that one of the jurors, on his voir dire examination, answered that he knew the attorneys in the case and they all looked alike to him; that he had no bias and while he had heard about the case, he had expressed no opinion and would give the parties a fair trial; that on the trial the juror appeared interested in the defendant’s side and appeared indifferent to what was said on plaintiff’s side; that during the time of the trial the juror and plaintiff returned to their homes in Streator each evening; “that on one of such occasions they (affiant and the juror) happened to he close together and were speaking about said cause and this affiant’s prospect of winning the same” whereupon the juror said: “If you had employed a good lawyer you would have won your case.” The attorney for appellant also filed his affidavit that the juror appeared prejudiced during the trial in favor of one or the other of the parties, but which one he could not tell.

The appellant appears from his own affidavit to have approached the juror during the trial and undertaken to interview and talk with him about the case and his prospect of winning it. While the statement of the juror was censurable, yet it was brought about by appellant, and was a rebuff to him for his very censurable and improper conduct which would seem to savor of an attempt to tamper with the jury. This contention is an attempt to take advantage of his own misconduct. Had this matter been called to the attention of the court forthwith during the trial, the court properly would have discharged the jury from the further consideration of the case. Appellant chose to proceed with the trial and take his chance of getting a favorable verdict and hold in reserve the complaint he now makes if the verdict should be unfavorable. Having chosen to conceal such improper conduct on the part of himself and the juror and proceed with the trial, it is too late to raise the objection he makes for the first time on a motion for a new trial. Stampofski v. Steffens, 79 Ill. 303; Clefford v. People, 229 Ill. 633; North Chicago St. Ry. Co. v. Burgess, 94 Ill. App. 337.

It is also insisted that the verdict was arrived at by an improper method. An affidavit of a juror was filed showing that the jury balloted a number of times; that the first ballot was six to six and then there were several seven to five and then it was agreed that a majority should rule; that the next ballot showed a majority for the defendant and then the jury voted unanimously not guilty.

The rule is firmly established that affidavits of jurors, as to what transpired while considering of their verdict, will not be received to impeach such verdict as returned into court. This rule is founded on public policy and any misconduct of the jury while deliberating concerning their verdict must be established by other evidence. For the same reason that the affidavit of a juror is not admissible any statement made by him is not admissible, and a juror will not be permitted to make evidence by statements not under oath that he is not permitted to make under oath. City of Chicago v. Saldman, 225 Ill. 625; Heldmaier v. Rehor, 188 Ill. 458; Phillips v. Town of Scales Mound, 195 Ill. 353; Allison v. People, 45 Ill. 37. If verdicts could be impeached in such a manner but few verdicts would ever be returned that there would not be an attempt made to impeach.

The facts in this case are all peculiarly within the province of a jury and we find no error of law. The judgment is therefore affirmed.

Affirmed.


text:
    John Dowd, Appellee, v. Drainage District No. 1 in Harmon Township, Lee County, Appellant.
    Gen. No. 5411.

      Drainage—when and to what extent district liable for land tafeen and, damaged,. A drainage district which widens a ditch maintained by it beyond the right of way which has been lawfully acquired, is liable to the owner of the land taken for the market value thereof. If such district in doing such work renders worthless other land of the plaintiff for any purpose other than that of the drainage district, it is likewise liable for the market value of such land. If, however, the land not taken but damaged is rendered worthless to the owner the district is liable for the depreciation caused by it.
    Action in trespass. Appeal from the Circuit Court of Lee county; the Hon. Richakd S. Fabeand, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Statement by the Court. This suit as originally brought was an action in trespass. A demurrer having been sustained the declaration was amended changing the form of action to assumpsit. A demurrer to the declaration as amended was overruled, and defendant abiding by its demurrer, evidence was heard and a judgment rendered for plaintiff for $472.50. This court reversed that judgment and remanded the case with instructions to sustain the demurrer. 132 Ill. App. 499. Upon the transcript of the order of this court being filed in the trial court, the plaintiff again amended the declaration, by changing the form of action to trespass on the case.
    The present declaration contains four counts on which issues were joined. The first count avers that the defendant is a corporation organized under an act entitled “An act to provide for drainage for agricultural and sanitary purposes,” approved June 27, 1885, in force July 1, 1885, for the purpose of draining the lands within the territory over which it had jurisdiction, and had constructed a ditch across the lands of the plaintiff, describing the land and the course of said ditch; that in May, 1905, it became the duty of defendant to deepen and widen said ditch to a depth of seven feet and a width of at least fourteen feet at the bottom; that across the land of the plaintiff, a distance of 4,120 feet, the defendant in pursuance of its duty deepened said ditch and widened it to a width varying from 36 to 46 feet and deposited the excavated material on the land of plaintiff; that in widening said ditch and depositing such material, defendant toot possession of eight acres of plaintiff’s land not before occupied or claimed by it and exercised ownership over it, and thence hitherto continued and intends to continue such acts for the purpose of drainage of the lands of the district, whereby upon rendering compensation, it would own the right of way and land on which such material was deposited for the purpose of drainage ; that the defendant in 1904, prior to such improvement, caused an assessment to be levied on the lands in the district to raise sufficient money to pay for such proposed improvement; that by the acts of the defendant in widening said ditch and depositing such material on the banks thereof the land of plaintiff was damaged in the sum of $1,000.
    The second count contains similar averments to the first and also an averment that by writ of mandamus, issued prior to such acts of the defendant, it was com-manded to enlarge said ditch to certain dimensions, and that the acts of said -defendant were done pursuant to such writ. The third count is a count in trespass. The fourth count is very similar to the second, with an averment that it was unlawful for defendant to take possession of plaintiff’s land without first rendering compensation, but in consideration of such compensation and damages as may be awarded, plaintiff waives all damages accruing by reason of the failure of the defendant to first make compensation, and demands, in lieu thereof, the market value of the land so appropriated for the use aforesaid by reason of such excavation and deposit of material, and consents to such use and occupancy. After the overruling of a demurrer, the defendant filed the general issue; upon which issue was joined. Upon a trial a verdict for $308.70 was returned in favor' of plaintiff, upon which judgment was. rendered and the defendant appeals.
    Brooks & Brooks, for appellant.
    A. C. Bardwell, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellant had constructed a drainage ditch across the lands of appellee. In 1895, appellant had enlarged and deepened the ditch after making an assessment for that purpose; still the ditch was not of sufficient capacity to carry off the waters from the district. Subsequently upon a petition of landowners in the district, a writ of mandamus was awarded commanding the commissioners of the district to deepen the ditch to an average depth of seven feet, and to widen it to a width of twenty feet at the bottom with a slope in said bank of one foot to each foot in depth. The district made an assessment for that purpose on the lands of the district which embraced the land of appellee. The predecessor in title of appellee had deeded to the district a strip thirty-two feet in width in which the original ditch had been excavated. In 1905 the officials of the district, in pursuance of the writ of mandamus but without taking any steps to secure an additional right of way, enlarged the ditch by deepening and widening it and deposited the excavated material on the banks of the ditch upon the land of appellee.

This suit was brought by appellee to recover the value of the land owned by him that has been appropriated for the use of the district. Appellee asserts (1) that appellant excavated the ditch beyond its original right of way thus placing a part of the ditch upon appellee’s land outside the right of way, and (2) that it dumped the material taken from the sides and bottom of the ditch upon his land outside the right of way ruining for farming purposes that part of his land upon which such material -was placed, so that such land was thereby appropriated for the purposes of the district. The evidence on the part of the appellee shows that the ditch is nowhere less than forty feet in width, and in some places it is forty-eight feet wide, and that in mahy places since the work was done the banks had caved into the ditch; that a strip of land on each bank of the ditch varying in width from twenty to thirty-nine feet, is covered with excavated material, consisting of dirt, clay, sand, gravel and nigger heads varying in size np to that of a water bucket, to a depth of from three to seven feet in irregular heaps, and that such deposit renders the land worthless for farming, and that to spread it out over the adjoining land would damage other good ground. It appears that the width of the strip used by the ditch and the spoil banks is about one hundred and four feet and of this the spoil banks cover over five and three fourths acres. Appellee’s evidence also shows that the land at the time the work was done was worth from $75 to $80 per acre. Appellant’s evidence tends to prove that it did not excavate beyond the limits of its original right of way, and that the land where the spoils are deposited is not entirely worthless, but that it might be leveled down and in time would produce some pasturage. The appellant has the greater number of witnesses, but many of appellant’s witnesses were interested in the result of the suit adversely to appellee, while the evidence of disinterested witnesses called by appellee appears to preponderate in favor of his contention that the land is rendered useless for any purpose by the spoil banks, and the measurements as to the width of the ditch show beyond a doubt that the ditch alone is ten feet wider than appellant’s right of way.

“The entry upon land and the construction of a ditch for drainage purposes constitutes, in law, a taking and appropriation of a perpetual easement and interest in the land, which is protected from invasion even as against the owner of the land.” Ginn v. Moultrie Drainage District, 188 Ill. 305. It was said in C. & E. I. R. R. Co. v. Loeb, 118 Ill. 203, an action for damages caused by a lawful structure: “By instituting this action for damages, the lot owner, in effect, consents that the railroad company may continue for all future time to use the street as it is now using it, and as consideration therefor to accept such judgment as may be therein rendered. In C. B. U. P. R. R. Co. v. Andrews, 26 Kan. 702, an action to recover damages for interference with an alley, it is said by the court, upon this point: ‘The plaintiff has chosen to consider the obstruction of the alley as a permanent injury to his lots, * * * as a quasi condemnation and permanent injury and appropriation of a certain interest in his property * * * It seems to'us that he gives his consent (that his property shall be permanently appropriated) when he brings an action for such damages. It seems to us that he then consents that the railroad company shall permanently appropriate his property in the alley, for he then brings his action for damages because of such appropriation.’ In Fowle v. N. H. and N. R. R. Co., 112 Mass. 334, where the action was for damages caused by the building of a railroad in such a manner that at times the current of a certain stream would be thrown upon the plaintiff’s land, the court says: ‘And if it (injury) results from a cause which is either permanent in its character, or which is treated as permanent by the parties, it is proper that entire damages should be assessed with reference to past and probable future injury.’ And see Town of Troy v. Cheshire Railroad Co., 3 Foster (N. H.) 83; Powers v. City of Council Bluffs, 45 Iowa 652; Kansas Railroad Co. v. Mihlman, 17 Kan. 224.”

This was approved in K. & S. R. R. Co. v. Horan, 131 Ill. 288, and Strange v. C. C. C. & St. L. Ry. Co., 245 Ill. 246, and cases cited therein. Appellant, before beginning the improvement, should have condemned the land it desired to appropriate. It should not now be permitted to say that it was only taking possession of appellee’s land for a limited purpose, a proposition it could not have urged in a condemnation suit fo,r the purposes of the drainage ditch. If the land is, as claimed by appellee, destroyed for any purpose for which it could be used other than for the depositing of the excavated material, as appellee’s proof tends to show, then he is entitled to recover its market valne.

It is contended by appellant that the conrt erred in refusing to admit in evidence the original assessment proceedings in the organization of appellant in 1880. These proceedings had no bearing on any issue in the case. They could in no way tend to give any light on the question whether appellant went beyond its right of way in excavating the ditch or depositing the spoils, and could have had no other effect than to tend to confuse the jury.

It is also insisted that the court erred in giving instructions requested by appellee. Instructions were given at the request of appellee concerning the measure of damages on the theory of appellant that the land covered by excavated material was not rendered worthless,—that appellee was entitled to recover the.market value of any land appropriated outside the right of way and used in the ditch, if any was proved, and damages to any land damaged, if any, by the deposit of excavated material upon land of appellee adjoining the right of way. It was a question of fact for the jury whether the land was only damaged in value or was rendered worthless to such an extent that it was appropriated by appellant. The measure of damages would be different in the two cases. The jury were also instructed that if the jury believed from the evidence that the appellee was deprived of the use of any portion of his land adjoining the right of way, either by widening the ditch or depositing material on its banks, so that such land was destroyed for farming purposes, then appellee was entitled to recover the market value of the land so taken, and that the district would have the right to maintain the ditch forever within the space occupied by it and the excavated material. The limitation by the instruction to the destruction of the land for farming purposes, technically was improper; it should have been that the land was made valueless for any other purpose than the purposes of the district. This however could not have misled the jury. The evidence fully warranted the verdict and the damages awarded appear to he low for the injuries sustained. Under the evidence in the case no verdict or judgment except one in favor of appellee could he sustained. It is apparent substantial justice has been done, and in such case the judgment should-not be reversed for slight error in instructions. Beseler v. Stephans, 71 Ill. 400; Young v. McConnell, 110 Ill. 83; Heckle v. Grewe, 125 Ill. 58; Keeler v. Herr, 157 Ill. 57. Finding no reversible error in the case the judgment is affirmed.

Affirmed.