text:
    The People of the State of Illinois ex rel. James J. Brady, Auditor, v. La Salle Street Trust & Savings Bank et al. William C. Niblack, Receiver, Appellee, v. John A. Cervenka, Respondent, Appellant.
    Gen. No. 21,729.
    1. Banks and banking, § 23

      —how provision for distribution of proceeds of stockholders’ liability construed. That portion of section 11 of the Banking Act (J. & A. If 683) providing that the amounts collected by the receiver of an insolvent banking corporation from the stockholders thereof shall be disbursed in the same manner in which its assets are distributed, is not necessarily an attempt to limit the rights of creditors as against stockholders since, while both assets and amounts collected from stockholders are to be distributed among creditors as their interests may appear, it does not follow that such distribution shall be necessarily pro rata.
    2. Statutes, § 38

      —what effect of partial invalidity. Even though that part of section 11 of the Banking Act (J. & A. H 683) which provides for the distribution to creditors of the amounts collected by the receiver of an insolvent banking corporation from the stockholders thereof be unconstitutional as an attempt to limit the rights of such creditors as against such stockholders to a pro rata portion of the amounts collected from such stockholders, yet the balance of such section is not thereby rendered invalid, as it is complete and can be given full force and effect.
    3. Banks and banking, § 23

      —when order to receiver to enforce stockholders’ liability proper. On a bill by the receiver of an insolvent banking corporation, filed under section 11 of the Banking Act (J. & A. ¶ 683), for the purpose of securing a dissolution of the corporation, a decree entered after a hearing directing such receiver, among other things, to enforce the liability of stockholders to the corporation, if there be any such liability, is not erroneous, as such section provides that in such case such receiver shall “enforce the liability of stockholders to creditors as provided in section 6 (J. & A. ¶ 678) of this Act,” which section is identical in its terms with section 6 of article XI of the Constitution of 1870.
    4. Banks and banking, § 28

      —when creditor restrained from enforcing stockholders’ Mobility. A petition by the receiver of an insolvent banking corporation to restrain a creditor from prosecuting actions to obtain an unjust and inequitable advantage over other creditors is not prematurely brought, where it appears that at the time the bill was filed there was a necessity of enforcing the liabilities of such stockholders on behalf of all the creditors, and where it further appears that it will be impracticable for such receiver to enforce such liability prior to the time when such creditor, unless restrained, will be able to prosecute such suits to judgment and to obtain satisfaction thereof.
    5. Injunction, § 332

      —when bond not essential. Where a court which has assumed jurisdiction of the entire matter of the affairs of an insolvent banking corporation restrains a creditor from receiving an undue advantage over other creditors, no bond is necessary.
    6. Estoppel, § 71

      —when creditor cannot maintain suit on stockholders’ liability. Where a receiver of an insolvent banking corporation has been duly appointed and a creditor has filed his claim with such receiver, and indicated a willingness to submit all matters connected with his claim to the court, he is precluded from taking any steps which will interfere with the power of the court to adjudicate such claim, for the reason that a creditor cannot claim the benefit of a portion of a decree and at the same time adopt a course calculated to deprive other persons similarly situated of another portion of its benefits.
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed November 15, 1915.
    Vincent D. Wyman, Charles E. Carpenter and Otto W. Jurgens, for appellant.
    H. T. Gilbert, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this appeal John A. Cervenka, appellant, seeks to have reversed an order enjoining him, until the further order of the court, from prosecuting suits against stockholders of the La Salle Street Trust & Savings Bank based on stockholders’ liability.

The record in the case shows that a bill was filed in conformity with section 11 of the Banking Act (J. & A. ¶ 683) by the People of the State of Illinois on the relation of James J. Brady, Auditor, against the La Salle Street Trust & Savings Bank and its stockholders, for the purpose of securing a dissolution of the corporation, a winding up of its affairs, and a distribution of its assets among its creditors, or creditors and stockholders, and, if necessary, the enforcement of the liability of its stockholders to its creditors. Upon the filing of that bill the court appointed William C. NTblack, appellee herein, as receiver of said bank. Subsequently a hearing was had and a decree entered dissolving the corporation, providing for the conversion of its assets into money, publication of notice to creditors to present their claims, and for such other proceedings as the court might find necessary for the administration of the assets of the corporation and a complete winding up of its affairs, including the enforcement of the liabilities, if any, of stockholders to the creditors.

After the entry of this decree appellant filed with the receiver his claim against the bank for $17,742.98. Prior to the entry of the decree of dissolution, appellant commenced his suit as a creditor of the bank against John F. Jelke, a stockholder at the time the bank suspended business, to enforce the latter’s stockholder’s liability; and after the entry of the decree of dissolution and after he had filed his claim with the receiver, appellant commenced actions against Edward Shears on et al., John Burnham & Company and Frederick M. Zeiler et al., to enforce their respective liabilities as stockholders on account of stock previously held by them but disposed of prior to the suspension of the bank and the appointment of the receiver.

The record shows that the assets of the bank are insufficient to the extent of over $1,500,000 to satisfy its liabilities to its creditors. It also shows that the receiver will, as soon as practicable, apply to the court to ascertain that the assets of the Trust & Savings Bank are insufficient to discharge its entire liability to its creditors and to determine the amount of the deficiency, and thereupon to direct the receiver to proceed to' enforce the liabilities of the stockholders of the bank to its creditors, but that it will be impracticable for him to procure such order prior to the time when appellant will be able to prosecute his suits to judgments. It is represented that if appellant is permitted to prosecute his suits to judgments and to obtain satisfaction thereof he will thereby secure an unjust and inequitable advantage over the other creditors of the bank in the satisfaction of their claims against it.

Upon the above showing, being made, the court entered its restraining order against appellant.

It is said that so much of section 11 of the Banking Act (J. & A. ¶ 683) as authorizes a receiver appointed thereunder to proceed to collect stockholders’ liability is unconstitutional.

Section 6, art. XI, of the Constitution of 1870 is as follows:

“Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder.”

The Banking Act in force June 16, 1887, sec. 6, sought to make each stockholder liable only for his ratable share and no more, but in Dupee v. Swigert, 127 Ill. 494, it was held that such legislation was in conflict with the above section of the Constitution which, as stated in the opinion, made every stockholder liable for the debts of the bank to an amount equal to twice the amount of the stock held by him, leaving the question of contribution to be settled among the stockholders themselves.

Section 11 of chapter 16a of the present Banking Act (J. & A. ¶ 683) contains the following provision:

“When it shall be ascertained, in the course of the administration of the estate of a bank in the hands of a receiver that the assets of the bank are insufficient to discharge the entire liability of such bank to its creditors, and when the amount of such deficiency is determined, the court may, in its discretion, direct the receiver to proceed to enforce the liability of the stockholders to creditors provided in section 6 of this Act ; and when so directed, such receiver shall have the power, and it shall be his duty, to take such action, by suit or otherwise, as the court may direct, to enforce such liability for the benefit of the creditors and to disburse to creditors the amounts collected thereon, in the same manner as disbursements are made to creditors of the assets of the bank.”

It is argued that as the Act of 1887 attempted to limit the liability of stockholders to a'pro rata share of the bank’s debts, so this section 11—and especially the provision that such disbursements are to be made in the same manner as the assets—undertakes to limit the right of creditors as against stockholders to. a pro rata share of the claims against the stockholders. It is a sufficient answer to say that it does not follow that under the provision for disbursements to creditors the amounts collected from stockholders shall be distributed pro rata among creditors. Both the assets of the bank and amounts collected from stockholders will be distributed among the creditors as their interests may appear. Furthermore, even should the clause of this act concerning distribution of amounts collected from stockholders be unconstitutional, the entire section would not be invalid as the remaining part is complete and can be given full force and effect.

It is to be noted that section 11 provides that the receiver shall proceed “to enforce the liability of the stockholders to creditors provided in section 6 of this Act,” and section 6 (J. & A. ¶ 678) referred to is identical in its terms with section 6, art. XI of this Constitution; so that the order to the receiver in this case to proceed against stockholders is in complete accord with the constitutional provision.

The petition for an injunction was not premature. The receiver’s petition avers that the assets are insufficient to satisfy the liabilities by over $1,500,000, which is $500,000 in excess of the par value of the bank’s entire capital stock. This allegation, for the purposes of this appeal, must be taken as true, and, therefore, the necessity of enforcing the liabilities of stockholders is established.

There is no merit in the point that the receiver has not been duly diligent.

No bond is necessary when a court having assumed jurisdiction of the entire matter restrains a creditor from receiving an undue advantage over other creditors.

There is much force in the point made by appellee that when appellant filed his claim with the receiver he indicated his willingness to subnfit the entire matter of the administration of the bank’s assets and the winding up of its affairs, including the enforcement of stockholders’ liability, to the court, and, therefore, he is precluded from taking any steps which would interfere with the exercise by the court of its power to do anything necessary to accomplish this purpose. He cannot claim the benefits of a portion of the decree while at the same time adopting a course calculated to deprive other persons similarly situated of another portion of its benefits. The interlocutory order is. affirmed.

!Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Pete Krakis et al., Defendants in Error, v. James H. Hooper, Plaintiff in Error.
    Gen. No. 20,488.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action by Pete Krakis and others, plaintiffs, against James H. Hooper, defendant, in the Municipal Court of Chicago, to recover on a verbal -agreement for the installation of a sewer, catch basin and water-closet in a building of defendant. To reverse a judgment of one hundred dollars for plaintiffs, defendant prosecutes this writ of error.
    James H. Hooper, pro se.

    No appearance for defendants in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

Assumpsit, action of, § 89 —when finding sustained. In an action to recover on a verbal contract to install a sewer, catch basin and water-closet in defendant’s building, where the evidence was conflicting, evidence held to sustain a finding of one hundred dollars for plaintiffs.


text:
    Thomas McGivern, Defendant in Error, v. Elizabeth Parkhill, Plaintiff in Error.
    Gen. No. 20,826.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fbank H. Gbaham," Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed November 15, 1915.
    Rehearing denied November 29, 1915.
    Statement of the Case.
    Action of forcible detainer by Thomas McGivern, plaintiff, against Elizabeth Parkhill, defendant, in the Municipal Court of Chicago. To reverse a judgment for plaintiff, defendant prosecutes this writ of error. The facts, so far as material, are as follows:
    Defendant was in possession of the premises in question under a written lease, executed by plaintiff and by her, for one year ending April 30, 1914. She testified that in March or April of that year defendant asked her if she wanted to stay another year, and she said yes, she wanted a lease for three years; that plaintiff said that he did not want to make a lease for more than one year, but then said, “I will give you a two years’ lease,” and that she said ,££A11 right”; that defendant delivered to her May 1st duplicate instruments in writing in the form of leases of the premises for two years, in the body of which plaintiff is named as lessor and defendant and her husband, H. J. Park-hill, as lessees, which instruments had not been signed by any one; that she and her husband signed said instruments about a week after May 1st; that she kept said instruments in her possession and did not tell plaintiff that she or her husband had signed the same until July 28th, when plaintiff served her with a notice in writing that he had elected to terminate her lease of the premises, her lease and tenancy to terminate August 31st, and notifying her to surrender possession of the premises to him at the close of that day; that she then said to plaintiff, “You can have your leases; they have been signed. ’ ’ She gave as a reason for not informing plaintiff that the instruments were signed and returning the same to him, that she was waiting to see what he would do about dividing the store, and admitted that the dividing of the store and the leasing to her of one-half of it was discussed between her and plaintiff after May 1st.
    Abstract of the Decision.
    1. Appeal and error, § 1174

      —how direction of verdict reviewed. In deciding the question as to whether there was error in the direction of a verdict by a trial court, the evidence most favorable to the party against whom the verdict is directed must be taken as true, and the inferences to be drawn therefrom, while they must he such as may be fairly made, must also be such as are most favorable to such party.
    2. Landlord and tenant, § 41

      —when lease not accepted. In an action of forcible detainer, where it appeared that defendant received two copies of a proposed lease unsigned by lessor, and where although defendant signed them, she did not notify plaintiff or return the leases, and where it appeared that after the date of the leases she conversed with plaintiff about a proposed lease which was different from that which she signed and retained, held that such conversation tends to show that defendant did not regard the leases signed as binding on her.

      John M. Grimes, for plaintiff in error.
    W. A. Morrow, for defendant in error.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

3. Landlord and tenant, § 41 —when unsigned lease not binding. Leases not signed by lessor but delivered to and signed by lessee are not within the rule that where a lease contains mutual covenants and is executed by lessor only and accepted by lessee such lease is binding on the lessee.

4. Landlord and tenant, § 89 —what is status of tenant holding over under void lease. A verbal agreement for a lease is void under the statute, and tenant holding over under such an agreement becomes a tenant from month to month.

5. Fraud, statute of, § 96 —when part performance ineffective. At law part performance does not take a contract out of the Statute of Frauds.

6. Landlord and tenant, § 39 —when transaction mere revocable offer to lease. Where a lessor sends to lessee copies of a proposed lease not executed by himself, which the lessee signs and retains without notifying the lessor of her acceptance of the lease, the facts show no more than an offer on the part of lessor to make a lease; and where it appears that the lessor, prior to notice of the lessee’s acceptance of the lease, gave defendant notice to quit, such notice in legal effect amounts to a withdrawal of the offer.

7. Landlord and tenant, § 41 —when lease not accepted by lessee. Where a lessor sends to a lessee copies of a proposed lease which the lessee-'signs and retains without notifying the lessor, pending action of the lessor on a request for a lease containing different terms, there was no valid acceptance of the proposed lease so as to bind the lessor, as the lessee’s assent thereto was merely mental.

8. Landlord and Tenant, § 41 —When lease not accepted, within reasonable time. Where a lessor sends to a lessee copies of a proposed lease which was dated May 1st, and the lessee did not notify the lessor of her acceptance of such lease until July 28th, held that the acceptance was not made within a reasonable time.

9. Contracts, § 40 —what is effect of failure to accept promptly. Where an offer to make a contract is not accepted within a reasonable time, the offerer may regard the offer as rejected.

10. Forcible entry and detainer, § 50 —who not a necessary party. In an action of forcible detainer, where the contract was verbal and between plaintiff and defendant alone, a judgment for plaintiff held not erroneous in that defendant’s husband was not joined as party defendant, where it did not appear that the husband was ever in possession of the premises of which possession is sought.


text:
    Emma M. O’Brien, Defendant in Error, v. Thomas F. O’Brien and Charlotte O’Brien, Plaintiffs in Error.
    Gen. No. 20,838.
    1. Forcible entry and detainer, § 25

      —when equitable defense not considered. An action of forcible detainer is an action at law, and an equitable defense cannot be set up to such an action.
    2. Trial, § 33

      —when postponement pending determination of injunction suit properly denied. A motion in an action at law to postpone the trial pending the determination of a proceeding in chancery, held properly denied where it appeared that defendant had filed a bill praying for an injunction to restrain the prosecution qf such action on purely equitable grounds, but where such injunction had not been obtained when the motion was made; for the reason that the mere fact that a bill had been filed to restrain the prosecution of an action at law does not of itself, without a restraining order, entitle a defendant to a continuance of the action at law, nor will the court of law postpone trial of the action to await action of the court of chancery on the bill for an injunction.
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 15, 1915.
    John S. Dornblaser, for plaintiffs in error.
    Alden, Latham & Young, for defendant in error; Charles Martin, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings in review a judgment of the Municipal Caurt for the plaintiff in an action of forcible entry and detainer.

The evidence shows that plaintiff had a legal title to the premises in question and was rightfully in possession until the defendant, Thomas F. O’Brien, without her consent took possession of a portion thereof. He filed a bill in chancery to have a trust in the premises declared and for an order restraining the prosecution of the forcible detainer suit, but procured no restraining order in the chancery suit. . Defendant moved in the Municipal Court to postpone the trial until the motion for an injunction was disposed of, and contends here that the court erred in denying his motion. The grounds of relief alleged in the bill were equitable and cognizable only in a court of chancery. An action in forcible detainer is an action at law and an equitable defense cannot be set up in such action. A court of law will not postpone the trial of a cause to await the decision of a court of chancery on a motion for an injunction to restrain the prosecution of the action. If defendant has an equitable defense, he must obtain an injunction from the court of chancery to restrain the prosecution of the action'; but the mere filing of a bill does not entitle such a defendant to a continuance of the common-law action.

The other grounds of defense urged are without merit. The court properly gave judgment for the plaintiff and the judgment is affirmed.

Affirmed.


text:
    Clarence D. Moon et al., Appellees, v. Kinzer Construction Company, Appellant.
    Gen. No. 20,974.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mazzini Slusseb, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed November 15, 1915.
    Rehearing denied November 29, 1915.
    Statement of the Case.
    Action by Clarence D. Moon and others, plaintiffs, against the Kinzer Construction Company, a corporation, defendant, in the Superior Court of Cook county, to recover on an alleged verbal contract to pay for hauling material. From a judgment for plaintiffs for $7,646.87, defendant appeals.
    John A. Bloomingston, for appellant.

      Abstract of the Decision.
    Assumpsit, action of, § 89

      —when evidence insufficient to show contract. In an action to recover on an alleged verbal contract to pay for hauling material, evidence examined and held insufficient to prove the contract alleged.
    Buell & Abbey and Fred W. Bentley, for appellees.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    T. W. Schulze, trading as T. W. Schulze & Company, Defendant in Error, v. J. S. Parrish, Plaintiff in Error.
    Gen. No. 21,052.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action by T. W. Schulze, trading as T. W. Schulze & Company, plaintiff, against J. S. Parrish, defendant, in the Municipal Court of Chicago, to recover broker’s commissions for negotiating an exchange of real estate of defendant for other real estate owned by a third person. To reverse a judgment for plaintiff for $92.50, defendant prosecutes this writ of error.
    Martin L. Wilborn, for plaintiff in error; John W. Sutton, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

Brokers, § 71 —when judgment for plaintiff improper. In an action to recover broker’s commissions for negotiating an exchange of real estate, where the affidavit of claim is for “the usual, ordinary and customary brokerage commission,” but where the evidence for plaintiff showed that there was a special agreement as to the rate of commission to be paid plaintiff by defendant, held error to stop defendant in his testimony and to refuse to allow him to continue or to hear his other witnesses and to announce a finding and judgment, where defendant testified that the agreement was that defendant should not be liable for plaintiff’s commissions but should obtain them from the other party to the exchange.


text:
    City of Chicago, Defendant in Error, v. Joseph Smith, Plaintiff in Error.
    Gen. No. 21,111.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Prosecution by the City of Chicago against Joseph Smith, defendant, in the Municipal Court of Chicago, charging defendant with a violation of section 2012 of the Revised Municipal Code of Chicago. To reverse a judgment of conviction and the assessment of a fine of two hundred dollars against defendant, defendant prosecutes this writ of error.
    A. L. Williams, for plaintiff in error.
    John W. Beckwith and Albert J. W. Appell, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

1. Criminal law, § 39 —what is effect of appearance. Where, defendant in a criminal case appears and submits the ease to the court, the only question is whether defendant is guilty as charged, and in such case the facts relating to his arrest are immaterial.

2. Municipal corporation, § 863 —when complaint for violating ordinance states single offense. A complaint under section 2012 of the Revised Municipal Code of Chicago, charging a violation of the ordinance, in that defendant “did make, aid, countenance and assist in making an improper noise, riot, disturbance, breach of the peace and diversion tending to a breach of the peace,” charges a single offense only, and is not a blanket complaint.


author: Mr. Justice Holdom

text:
    Mabel Frances Paulin, Defendant in Error, v. William A. Paulin, Plaintiff in Error.
    Gen. No. 19,646.
    1. Divorce, § 106

      —when alimony decree final. Although a decree for alimony may be varied by the court which renders it, yet where such a decree divorces the parties, decrees alimony and settles the question of the custody of a child of the marriage, it is final until changed by the court rendering it, and final as to every other court.
    2. Divorce, § 133

      —when foreign alimony decree enforceable. A decree for alimony rendered by the courts of a foreign State is within the application of the full faith and credit clause of the Constitution of the United States, which confers jurisdiction to enforce such decree upon the courts of the States other than that by whose courts the decree was rendered, provided the decree sought so to be enforced is final and not temporary in its nature.
    3. Divorce, § 132

      —when action lies on alimony decree. Where a decree for alimony finds a sum of money to be due and orders it to be paid absolutely and at all events, and not upon any contingency, such sum becomes by the force of the decree a debt, liquidated, fixed and certain, and completely within the rules which permits actions at law to be brought on decrees, notwithstanding the fact that the decree relied on may order things other than the payment of money to be done.
    4. Divorce, § 132

      —when Municipal Court has jurisdiction over action on alimony decree. An action to recover money found to be due by a decree for alimony is a civil action, and within the jurisdiction of the Municipal Court of Chicago as a fourth-class action.
    5. Municipal Court of Chicago, § 13

      —when affidavit of defense properly stricken. Where an affidavit of defense alleges no facts which, if proven, would have constituted a meritorious defense to the action, it is not error to strike the affidavit, and assess plaintiff’s damages.
    6. Recobds, § 7

      —when clerk’s minutes sufficient. It is not necessary that the minutes of the clerk of a court should contain all the essentials of a judgment, or that such minutes should consist of English words written out at length, and be clearly intelligible to every person acquainted with the English language, but it is sufficient if their meaning is apparent to the officers of a particular court, for the reason that such minutes are intended for the information of such officers alone and not for the information of persons generally.
    7. Judgment, § 238

      —when default properly entered nunc pro tunc. An entry of notation of default nunc pro tunc is proper where such notation appears from the clerk’s minute book to have been properly directed when the judgment was ordered, but which by the clerk’s error was omitted in making up the record, for the reason that such entry adds nothing to the judgment as originally directed but merely corrects an error of the clerk in failing to transcribe the notation.
    8. Evidence, § 4

      —when clerk’s minutes judicially noticed. The minute book of the clerk of a court is part of the archives of the court of which the judges thereof may properly take judicial notice.
    9. Appeal and error, § 1472

      —when admission of evidence harmless. While evidence of clerks as to the minute book of the clerk of a court was unnecessary, yet held, not prejudicial error to admit it
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed November 15, 1915.
    Rosenthal & Kurz, for plaintiff in error.
    Joshua R. H. Potts, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff sued the defendant for money due and unpaid for alimony decreed plaintiff in a divorce action between the parties to this cause, lately pending in the Court of Insolvency of Hamilton County in the State of Ohio. The decree also severed the matrimonial bond. The final seven instalments due by the divorce decree, with interest from the dates they were respectively due, together amount to the sum of $747, for which plaintiff obtained judgment.

Defendant’s affidavit of defense was on motion of plaintiff stricken from the files, and the court assessed plaintiff’s damages and gave judgment against defendant for the amount of the claim. Defendant brings the record here for review and assigns errors which in their essence attack the jurisdiction of the Municipal Court to take cognizance of the cause, the striking of defendant’s affidavit of defense from the files, the court’s assessing the damages and not submitting the same for assessment to a jury and entering a nunc pro tunc order amending the judgment record.

If plaintiff is entitled to recover at all, the defendant does not dispute the amount of the judgment.

That the decree of the Insolvency Court of Hamilton County was final is not open to dispute. It settled all the questions involved in the cause, divorced the parties, decreed alimony to plaintiff and settled the question of the custody of the child of the marriage. It was an appealable order because of its finality. True it is that every decree for alimony is subject to be varied at a subsequent time by the court entering the decree, yet no other court can disturb it, and until such court does so, it remains fast, firm and final.

That a decree for alimony entered in a sister State can be enforced in the courts of this State is no longer to be doubted. The full faith and credit clause of the National Constitution is applicable to such a case and confers jurisdiction upon our courts to entertain and enforce such a decree, the essential requirement being that the decree for alimony shall be one of finality and not temporary, and such is the nature of the decree in the record.

As said in Dow v. Blake, 148 Ill. 76: “We think that an action can be maintained in one State upon a final decree for alimony rendered in another State,” and the court cite Bishop on Marriage and Divorce, vol. 2, see. 847, and quote the following:

“A decree for alimony, there being a competent jurisdiction, is a record to which, under the Constitution of the United States must be given full faith and credit in every other State.” Britton v. Chamberlain, 234 Ill. 246, adheres to the same doctrine. It is said in Blattner v. Frost, 44 Ill. App. 580: “While the decree sued upon in this case did order the doing of other things besides the payment of money, yet the sum of $1,400 is distinctly found to be due and ordered to be paid, not upon any contingency, but absolutely and at all events. Such sum became per force of the decree a debt, liquidated, fixed, certain; completely within the rule which permits actions at law to be brought upon decrees.” This language is equally applicable to the decree in suit. We think the Municipal Court had jurisdiction of the cause as a fourth-class case. It is a civil action. Konow v. Nichols, 128 Ill. App. 409.

As defendant’s affidavit of defense did not state any fact which, if proven, would have justified the court in holding that it constituted a meritorious defense in bar of the action, the court did not err in striking it from the files. Neither in this condition of the record was it error for the court to assess plaintiff’s damages. Mann v. Brown, 182 Ill. App. 1.

At the time the damages were assessed and judgment entered, the record did not contain an order defaulting defendant for want of a sufficient affidavit of merits. For this defect, and without passing upon the merits of the action, this court reversed and remanded the cause, but subsequently recalled the mandate and granted a rehearing.

The motion of plaintiff to correct the record in this regard was granted and the record corrected accordingly by noting the default of defendant. It is now contended by defendant that the trial judge erred in doing so, as he had no sufficient memorial minute before him from which the record could be corrected. The memorial minute, upon which the court acted, consisted of the entry made by the minute clerk in his minute book, to the correctness of which the minute clerk testified. These minutes were made by the clerk in abbreviated form. It is now urged by defendant that such abbreviations were not in the English language and therefore not sufficient evidence upon which to base the nunc pro tunc order, and that Stein v. Meyers, 253 Ill. 199, is controlling of such contention. On the other hand, plaintiff distinguishes the Stein case, supra, from the one at bar and cites People v. Petit, 266 Ill. 628, as sustaining the validity of the nunc pro tunc order.

We are of the opinion that the abbreviations in the case at bar are much more like the abbreviations in the Petit case, supra, than in the Stein case, supra. We have examined with care the abbreviations in the minute clerk’s book and are satisfied that all the material abbreviations are readily understandable by lawyers, if not by the average well informed layman. They are not the unintelligible jumble of letters found in the Stein case and condemned by the Supreme Court. In the Petit case the judge refused to allow the record to be written from the minutes made by the clerk in abbreviated form and the Supreme Court says: “The constitutional provision has no reference to such minutes as those in question here, which are no part of the record but were memoranda from which the record might be made. They are such abbreviations as are frequently used by judges and clerks for making minutes of the proceedings as a guide to indicate to the clerk what the judgment of the court was and . to enable him to write out the formal judgment. It is not necessary that such minutes should contain all the essentials of a judgment, should consist of English words written out at length, or should be clearly intelligible to every person acquainted with the English language. They are not intended for every person’s information but for the information of the officers of that particular court, and it is sufficient if their meaning is apparent to such officers.” And we say here, as said by the Supreme Court in the Petit case, supra: “It is apparent from an inspection of these minutes that they were sufficient to enable the clerk to write out the formal judgment of the court.” As said in Tisdale v. Davis & Rankin Bldg. & Mfg. Co., 182 Ill. App. 31, an “inspection of the judgment order above set forth does not disclose to this court the omission of any element essential to its validity.”

The nunc pro tunc order in controversy in no manner added anything to the judgment of the court as originally directed, but simply corrected the error of the clerk in not transcribing from the minute book the judgment which the court had, as appears by that minute book, directed to be entered. The purpose of the trial judge in making the nunc pro tunc order was to make a record of an order which the court had made at a previous time, but which, through an error of the clerk, had not been recorded. In the instant ease, if the clerk had done his whole duty at the time the order and judgment was transcribed into the record, it would have appeared in just the same form it did after the entry of the nunc pro tunc order. People v. Wilmot, 254 Ill. 554; People v. Rosenwald, 266 Ill. 548; Zimmer v. Lyon & Healy, 190 Ill. App. 642.

The clerk’s minute book was a part of the archives of the Municipal Court, of which the judges thereof might take judicial notice. While the evidence of the clerks who testified concerning the same was unnecessary, yet no harm to defendant resulted.

Many other objections of a purely technical character are made by defendant but we do not deem them, in the light of what we have already said, as being pertinent or as warranting further discussion.

We do not find in the record any error justifying a reversal of the judgment of the Municipal Court, and it is therefore affirmed.

Affirmed.


text:
    Lord & Thomas, Appellee, v. Daisy K. Hahn, Executrix, Appellant.
    Gen. No. 20,272.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed with judgment here.
    Opinion filed November 15, 1915.
    Statement of the Case.
    Action by Lord & Thomas, a corporation, plaintiff, against Daisy K. Hahn, executrix of the will and estate of Harry W. Hahn, deceased, defendant, in the Superior Court of Cook county, to recover on a contract with the Sanitary Drinking Cup Company, of which defendant’s testator was secretary and treasurer, and whose contract he guaranteed. From a judgment for plaintiff, defendant appeals.
    The guaranty is in the following words:
    “Chicago, Nov. 15, 1911.
    “Lord & Thomas,
    “Gentlemen: I guarantee the acct. of the Sanitary Drinking Co. of Ills, to the maximum amount of twenty-five hundred dollars,” and it is signed “Harry W. Hahn.”

      Abstract of the Decision.
    Guaranty, § 7

      —when sufficient consideration shown. Where defendant’s testator voluntarily guaranteed the account of a corporation, of which he was an officer, with another corporation, a sufficient consideration to support the guaranty is shown where it appears that such corporation refused to make the contract unless guaranteed, and executed the contract on the faith of the guaranty, and in such case it is not of controlling importance that the contract was executed before a written guaranty was signed, if executed on the faith of a promise to guaranty it, which promise was later fulfilled.
    It is not denied that Lord & Thomas declined to enter into the contract with the Drinking Cup Company unless it was guarantied, and Hahn voluntarily offered to be the guarantor, and being secretary and treasurer of the company he was naturally interested in its success, and the scheme of advertising contemplated by the contract was at the time considered to be a means to bring about that end.
    McEwen, Weissenbach, Shrimski & Melgan and Louis Brandes, for appellant.
    Moses, Rosenthal & Kennedy, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Isaiah R. Clark et al., Appellees, v. Rosalie E. Selfridge et al., Appellants.
    Gen. No. 20,924.
    1. Equity, § 552

      —when failure to strike plea on striking affidavit of defense harmless. While the better, long-continued and well-established practice is after striking the affidavit of defense to strike the pleas for want of a sufficient affidavit of defense, held not reversible error to proceed to hearing after striking the affidavit of defense as in case of a default without striking the pleas.
    2. Appeal and error, § 1275

      —when matter reviewed in absence of certificate that bill of exceptions contains all the evidence. While in a general sense it would be essentially correct to say that where matter relied on in defense is in the bill of exceptions but not in the record, there being no certification that the bill of exceptions contains all the evidence heard, there is a presumption that the court heard sufficient evidence to support its judgment, yet the rule will not apply where the bill of exceptions patently contains all proceedings before the court in the trial of a cause without a jury, and in such case the bill of exceptions will suffice to bring before the Appellate Court for review the question of the legal sufficiency as a defense of the matter relied on.
    3. Appeal and error, § 1856

      —what rules govern construction of bond. The doctrine of strictissimi juris is the canon of construction governing the liability of sureties on appeal bond’s where the action is against both principal and surety.
    4. Appeal and error, § 1863

      —token appeal prosecuted with effect within condition of bond. In an action on an appeal bond in a chancery action, conditioned that the principal obligors duly prosecute their appeal with effect, where only the object of the appeal was to have appellant’s claim against certain mortgaged premises made a lien thereon, which was denied by the trial court, an order of the Appellate Court modifying the decree of the trial court in that respect and directing that such lien be established is such a material modification of the decree as to constitute a prosecution of the appeal with effect, thus satisfying the condition of the bond.
    5. Appeal and error, § 1034

      —what judicially noticed. The Appellate Court will take judicial notice of the substantial and material facts set forth in an affidavit of defense which is of record in that court.
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed November 15, 1915.
    Rehearing denied November 29, 1915.
    Shepard, McCormick, Thomason & Patterson, for appellants.
    Henry W. W. Leman and Frank H. Culver, for appellees.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This is an action of debt on an appeal bond in the penalty of $1,500 given in the case of Wright v. Chandler, 180 Ill. App. 476, in which the condition was that the principal obligors duly prosecute their appeal with effect. To the declaration the defendants interposed several pleas, in the second of which they set up in bar of the action the foreclosure proceedings in the trial court, the appeal to this court and the final order of this court, and contend thereby that the appeal, in which the bond sued upon was given, was prosecuted with effect.

With their pleas the defendants filed an affidavit of merits setting forth in detail the matters and proceedings contained in their second plea, which, on motion of the plaintiff was stricken from the files as not stating facts which constituted a defense to the action, and thereupon the court proceeded to assess damages and found the'debt to be $1,500 and assessed the damages at $1,500, the debt to be discharged upon the payment of damages, and upon this finding judgment was entered and this appeal prosecuted.

The matter appealed against in Wright v. Chandler, supra, was the finding in the foreclosure decree that defendant, Rosalie E. Selfridge, was not entitled to a lien upon the mortgaged premises for the amount advanced by Chandler, the trustee, under power in the trust deed, for certain taxes and redemption from tax sales of the mortgaged premises.

In the judgment entered by this court in Wright v. Chandler, supra, the decree appealed from was modified, the court finding, “That neither in the record and proceedings of the Superior Court of Cook county aforesaid, nor in the rendition of the decree aforesaid, is there anything erroneous or defective, except in so far as said decree as entered fails to adjudge and decree that defendant, Eosalie A. Selfridge, the equitable assignee of Frank E. Chandler, Trustee, is entitled to a lien on the mortgaged premises for the sum of Seven Hundred and Twenty and 17/100 ($720.17) Dollars, together with interest thereon at the rate of five per cent. (5%) per annum, from the day the decree in said cause was entered, for taxes paid on said premises and amounts paid to redeem the same from tax sales by said Frank E. Chandler, Trustee, but that said lien is junior and subsequent to the lien of the complainants as therein adjudged and decreed. Therefore, it is considered by the court that said decree be, and the same is hereby modified by incorporating therein the following:

“It is ordered, adjudged and decreed that the sum of Seven Hundred and Twenty and 17/100 ($720.17) Dollars, be, and the same is hereby adjudged to Rosalie A. Selfridge, the equitable assignee of Frank E. Chandler, Trustee, together with interest thereon at the rate of five per cent. (5%) per annum from the day the decree in said cause was entered for taxes paid on said premises and amounts paid to redeem the same from tax sales, by said Frank E. Chandler, Trustee, and that said Eosalie A. Selfridge have a lien on said mortgaged premises for said amount, together with said interest, but that said lien is junior and subsequent to the lien of complainants as adjudged and decreed in said decree.
“And it is further considered by the court that said decree, as modified, be affirmed and stand in full force and effect, notwithstanding the said matters and things therein assigned for error.”

When the court struck the defendants’ affidavit of merits from the files, the pleas of defendants remained. While in point of law the issues then before the court were encompassed within the declaration and the pleas, the court proceeded to the hearing as in cases of default. While this irregularity did not amount to reversible error, still the better, long-continued and well-established practice is, in such a situation, to strike the pleas for want of a sufficient affidavit of merits.

Plaintiffs with much vigor contend that the affidavit is not before us, because the stricken affidavit is in the bill of exceptions and not in the record, there being no certification that the bill of exceptions contains all the evidence heard or considered by the court; and furthermore, that in this condition of the record the presumption obtains that the court heard sufficient evidence to support its judgment. While as a general proposition this contention is in its essence correct, still it has its exception, and we think the case at bar falls within the exception.

This was not a jury trial. The whole case was heard by the trial judge. The bill of exceptions shows the whole proceeding, every step and stage of it to its conclusion. There is no room to add by surmise as to what may have taken place. The whole proceeding is before us. Every word of counsel and of the court in that trial and all the rulings of the trial judge are so patently in the bill of exceptions, that any presumption not arising from its context is excluded. We think the ruling and the reasoning of People v. Scanlan, 265 Ill. 609, are clearly controlling of our decision on this question. In the Scanlan case, supra, the court say:

“Appellee contends that the bill of exceptions is insufficient because it is not shown, either by the certificate of the trial judge or otherwise, to contain all the evidence heard or considered by the court. We regard the bill of exceptions sufficient for the purpose of presenting the error which we have above considered, although there is no direct statement in the bill of exceptions, or in the certificate of the trial judge thereto, that it contains all the evidence.”

The bill of exceptions in this case is sufficient to bring before us for decision the legal question as to whether the ruling of the trial judge in striking defendants’ affidavit of defense from the files was erroneous. The evidence on the hearing consisted of certain calculations made by counsel for plaintiff, in the verity of which the court entered judgment. All this appears in extenso in the bill of exceptions with the rulings of the court thereon. The judgment rests for its integrity upon the correctness of these proceedings.

The bill of exceptions recites the following at the conclusion of the hearing:

“The Court: You have the amount, the date of sale, and they have the right to have that credited, and then they have the right to be immediately paid whatever they are due.
Mr. Culver: I have figured it up.
The Court : Now that is a question of computation. I think you are entitled to a decree and Mr. Shepard may save his point. How much is due in this case, Mr. Culver?
Mr. Culver : There is due in this case $1,500.
The Court: Judgment will be entered for the plaintiff in this case in the sum of $1,500.
Mr. Shepard: The defendants move in arrest of judgment.
The Court: Motion is denied.
To which action óf the court in so denying the motion in arrest of judgment of the defendants, the defendants by their counsel then and there duly excepted.
The Court : Judgment will be entered here for the sum of $1,500 debt and $1,500 damages.
To which action of the court in so entering judgment, the defendants by their counsel then and there duly excepted.
Mr. Shepard: We pray an appeal.
The Court: The defense have prayed and are allowed an appeal to the Appellate Court, with leave to file a bill of exceptions in sixty days and a bond in the sum of $1,750 in thirty days, and exceptions by the defendants to all these orders.”

Then follows the certificate of the trial judge to the bill of exceptions, etc.

As said by the Supreme Court in the Scanlan case, supra, we say here:

‘ ‘ So_ in the case at bar, those portions of the bill of exceptions above quoted, when considered collectively, are equivalent to an express averment that the bill of exceptions contains all the evidence heard in the cause.”

In citing Cerny v. Glos, 261 Ill. 331, the court say in the Scanlan case, supra: “The certificate of evidence disclosed practically the same situation as is presented by this bill of exceptions, and it was held that it showed, on its face, that it contained all the evidence.”

On the motion to strike the affidavit of defense, Mr. Culver, for plaintiffs, said: “I move that the affidavit of merits be stricken from the files as not being sufficient in law to constitute a defense. It shows upon its face that it does not state a defense to this action.” And the court in its ruling said:

“Upon a consideration of this affidavit of meritorious defense, I am of the opinion, Mr. Shepard, that it does not state a defense to this action, even admitting all the facts it states to be true, and for that reason I shall strike it from the files.”

As said in Haberer v. Hansen, 148 Ill. App. 83: “The doctrine of strictissimi juris is the canon of construction governing the liability of sureties on bonds.” This suit being against both principal and surety, this doctrine of construction is applicable.

The only question now remaining for decision is: Was the order modifying the decree in Wright v. Chandler, supra, material or immaterial? All that appellants in that case sought by their appeal was to have their claim made a lien upon the mortgaged premises. This the trial court denied them, but this court granted their claim and directed the court below to so modify the decree and it was done. We think it clear that this was such a material modification of the decree appealed from as to constitute a prosecution of that appeal with effect, thereby satisfying the condition of the appeal bond.

We are referred by plaintiffs’ counsel to the case of Ely v. King-Richardson Co., 265 Ill. 148, as conclusively sustaining their contention in this regard. We cannot so interpret the case. There the decree required the delivery only of the notes involved in the litigation, while the decree as modified on review required the notes to be indorsed “without recourse.” This was held to be an immaterial modification, and it was; but in the case at bar the appellants procured substantially all they sought, so that the modification was material, and we so hold.

The substantial and material facts set forth in the affidavit of defense are of record in this court, of which we will take judicial notice.

The judgment of the Superior Court is erroneous and is therefore reversed, and as the right to recover is predicated upon the bond and the record in Wright v. Chandler, supra, which together will not permit of a recovery, the cause is not remanded.

Reversed.


text:
    Isaiah R. Clark et al., Appellees, v. Rosalie A. Selfridge et al., Appellants.
    Gen. Nos. 20,920-20,923.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed.
    Opinion filed November 15, 1915.
    Rehearing denied November 29, 1915.

      Statement of the Case.
    Action by Isaiah E. Clark and others, plaintiffs, against Rosalie A. Selfridge, and others, defendants, in the Superior Court of Cook county.
    These cases present the same questions that are presented in the case of Clark v. Selfridge, No. 20,924, ante, p. 357, and were submitted on the abstracts and briefs filed in that case.
    Shepard, McCormick, Thomason & Patterson, for appellants.
    Henry W. Leman and Frank H. Culver, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.


author: Hr. Justice Holdom

text:
    William J. Hayes by Elizabeth J. Casey, Appellee, v. Marshall E. Sampsell, Receiver of Chicago Union Traction Company, Appellant.
    Gen. No. 21,001.
    1. Carriers, § 314

      —when nonpayment of fare not a defense in action for injury to person on car. In an action to recover for personal injury to a ten-year-old boy, owing to the negligent operation of defendant’s electric car, where it appeared that plaintiff boarded the car at the invitation of the motorman and rode thereon for some distance without paying fare, a judgment for plaintiff held not erroneous, for the reason that in such case the only question is whether plaintiff was lawfully on the car, and it is not a defense that plaintiff paid no fare.
    2. Carriers, § 314

      —when liable for injury to child boarding car on invitation of motorman. In an action to recover for personal injury to a boy, where it appeared that plaintiff boarded defendant’s electric car at the invitation of defendant’s motorman, such invitation was an act within the scope of such motorman’s employment, although such motorman may have acted contrary to defendant’s orders, and may have been answerable for disobedience of defendant’s rules, for the reason that such act of such motorman could not affect the status of plaintiff on defendant’s car or render his presence thereon unlawful.
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed November 15, 1915.
    Rehearing denied November 29, 1915.
    Joseph D. Ryan and Frank L. Kriete, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Thomas E. Rooney and Ferdinand Goss, for appellee.

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

   Hr. Justice Holdom

delivered the opinion of the court.

William J. Hayes, the plaintiff, by his next friend, recovered in the Superior Court a judgment, entered upon the verdict of a jury, against the defendant for $5,000, and defendant appeals.

The several counts of the declaration charge in some that plaintiff was a passenger and in others that he was lawfully upon the car from which he was thrown by its jerking upon starting after having slowed down, and was thereby injured. The general issue was the only-plea filed by defendant. No questions arise upon the pleadings or as to the amount of the damages awarded. Defendant admits in its brief the negligence charged in the following words: “As to the question of defendant’s negligence, it is not contended that the verdict, as to that issue, is against the manifest weight of the evidence.”

The right to a reversal is predicated upon the contention that plaintiff was a trespasser; that all the duty defendant owed bim was not to wantonly or wilfully injure him, and that there is no evidence that plaintiff was injured through any wilful or wanton conduct on the part of defendant. But that is not the theory of plaintiff’s case or of defendant’s liability. While plaintiff was not a passenger for hire, still he was not a trespasser. We think the evidence conclusively proves that plaintiff was lawfully upon the car at the time he was injured. The facts which so demonstrate are not in dispute.

Plaintiff at the time was a little past his tenth year. His stepfather was a • conductor on one of defendant’s cars. The little fellow had been in the habit of carrying to his stepfather his midday meal and in that way had formed, in boy fashion, a speaking acquaintance with some of defendant’s conductors and motormen. On the day of the accident, which happened after school between four and five o’clock in the afternoon, plaintiff came out of a grocery store on the southeast corner of Francisco and Van Burén streets, when the motorman of the car from which plaintiff was thrown called to him, “Come here. What are you doing there?” Evidently regarding this as an invitation to board the car and take a ride with the motorman, plaintiff got upon the car and stood upon the first step. Boy like, he talked with the motorman, and among other things told him that he lived on Mozart street and asked him to stop there. Plaintiff continued to ride upon the step to the middle of the block, when the car slowed down and then started again with a sudden jerk, which threw plaintiff off the step of the car. He was thrown to the roadway and the car ran over his right arm, so badly injuring it that it had to be amputated.

As plaintiff was lawfully upon the car at the time of the accident, defendant is liable in damages for the injuries to plaintiff, resulting from the negligence of which it is confessedly guilty.

•The fact that plaintiff paid no fare and did not intend doing so, does not affect the right of recovery, if he was lawfully on the car. As said in the early case of Ohio & M. R. Co. v. Muhling, 30 Ill. 9: “When a person is upon a train, under such circumstances (without having paid his fare), the only inquiry is, whether he was lawfully there, and not whether he had paid his money for the privilege. So that, in point of fact, it can make no difference in this case whether plaintiff in error had paid for his passage, or whether he was there by permission, to be carried without compensation, as it does not appear that it was unlawful.”

There are many decisions akin to the case at bar involving accidents to children occasioned by such children riding upon cars at the invitation of those in charge and without the payment of fare.

Wilton v. Middlesex R. Co., 107 Mass. 108, was a case of a nine-year-old girl, who, with others, boarded the defendant’s car at the invitation of the driver and did not pay any fare, and was injured. It was conceded that the little girl was not a passenger for hire and that the driver had no authority to take her upon the car and carry her, unless such authority is to be implied from the fact of his employment as driver, and the court say: “Upon these facts, it is clear that it would be competent for the jury to find that the beckoning by the driver was intended and understood as an invitation to the plaintiff to get upon the car and ride. In accepting this invitation and getting upon the car, we think she was not a trespasser, there being no evidence of collusion between her and the driver to defraud the corporation.”

While defendant’s motorman may have acted contrary to orders, still it was an act in the course of his employment, notwithstanding he may have been answerable to defendant for disobedience of its rules. Such conduct could not affect the status of plaintiff with the defendant or detract from the fact that he was lawfully upon its car. Cleveland, C., C. & St. L. R. Co. v. Best, 68 Ill. App. 532.

Brennan v. Fairhaven & W. R. Co., 45 Conn. 284, was a case similar in fact and principle to the one at bar, in which the plaintiff, a boy of about the same age as the plaintiff here, had not paid his fare. In Drew v. Sixth Ave. Ry. Co., 26 N. Y. 49, the plaintiff was an eight-year-old boy riding free at the invitation of a brakeman. A recovery was had and sustained. Pittsburg, A. & M. Passenger Ry. Co. v. Caldwell, 74 Pa. St. 421, is a case where a very immature child, in the charge of a girl eleven years of age, was riding on a street car, neither of them having paid or intending to pay their fare, the ride having been solicited of the driver by the older girl. There was a recovery in the trial court, which was affirmed on review. Evansville St. Ry. Co. v. Meadows, 13 Ind. App. 155, is in all its essential particulars of law and fact akin to the case at bar.

There are no errors in the court’s instructions to the jury. Instruction No. 1 proffered by defendant was properly refused, as it erroneously stated as the law that if plaintiff had not paid'his fare and did not intend to do so, he could not recover.

The judgment of the Superior Court being without error, is affirmed.

Affirmed.


text:
    United States Brewing Company of Chicago, Defendant in Error, v. Joe Pochek, Plaintiff in Error.
    Gen. No. 21,123.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed November 15, 1915.

      Certorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action, of forcible detainer by the United States Brewing Company of Chicago, a corporation, plaintiff, against Joe Pochek, defendant, in the Municipal Court of Chicago. To reverse a judgment for plaintiff for possession, defendant prosecutes this writ of error.
    Abstract of the Decision.
    1. Forcible entry and detainer, § 24

      —what not a defense. In an action of forcible detainer, a tenant cannot defend by denying or attacking his landlord’s title, nor can he show that such title has terminated, for the reason that the action is possessory solely, and is a summary statutory action for the restoration of the possession of land to one who has wrongfully been kept out or deprived of such possession, and for the further reason that in such action the question of title cannot be tried.
    2. Forcible entry and detainer, § 108

      —when attempt to recover personalty disregarded. Personal property cannot he made the subject of an action of forcible detainer, but where a complaint in such an action seeks to recover for personal property as well as the possession of real estate, such portion of the complaint will be treated as surplusage where that phase of the case was not presented to the trial court, and where the judgment sought to be reversed is for the possession of land and not for that of the personal property described by the complaint as being in and on the demised premises.
    Thomas J. Lynch and Rudolph Frankenstein, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Lepman & Heggie, Defendant in Error, v. Chicago, Rock Island & Pacific Railway Company, Plaintiff in Error.
    Gen. No. 21,133.
    1. Carriers, § 134

      —when consignee not entitled to sue for injury to goods. Where, on shipping a carload of eggs, the consignor attaehed a draft for the purchase price to the bill of lading, sending it to a bank for collection, and the consignee refused to accept the eggs because of damage in transit, but later accepted same, under agreement with the consignor, at a reduced price, the consignee is not entitled to maintain an action against the carrier to recover for the negligent injury to the goods, title to same not having been in the consignee at the time the damage was inflicted, and no assignment of the right of action therefor having been alleged or proved.
    2. Cashiers, § 132

      —when showing of title to damaged goods necessary. The right to recover damages against a carrier for negligent carriage of goods is a chose in action, and where the consignee seeks to recover therefor he must show title in himself at the time of the infliction of the injury, or an assignment to him of such chose in action.
    3. Carriers, § 134

      —what does not entitle consignee to sue for damage to goods. Where, at the time of the negligent injury to goods by a carrier, the title thereto was not in the consignee, the subsequent purchase of the same by him upon different terms, without paying a draft accompanying the bill of lading nor securing possession of the latter, does not operate retrospectively, so as to entitle the consignee to recover for damages inflicted in transit.
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed.
    Opinion filed November 15, 1915.
    Marcus L. Bell, Albert B. Enoch and Charles T. Schwarz, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

T. Jensen & Bros, of Marion, Kansas, shipped to plaintiff by the defendant railroad one carload of eggs, consisting of 400 cases. T. Jensen & Bros, drew a draft on plaintiff for the agreed price of the eggs, attached the same to the bill of lading and sent it through a bank for collection. The eggs were damaged in transit and plaintiff refused to accept them. After the exchange of telegrams and telephone messages between plaintiff and T. Jensen & Bros., the plaintiff finally agreed to accept the eggs at a reduction from the contract price. Acting upon this latter agreement, plaintiff took possession of the eggs, re-sorted them in the car and took away all but twenty-two cases of them, which were left in the car. The eggs remaining in the car were damaged, some being broken and others being what, in the parlance of the egg trade, are known as “leakers and checks.” The eggs being perishable, the defendant sold them, realizing therefor $70.53, which sum defendant tendered to plaintiff in settlement of the cause of action sued on.

The cause was tried before the court without a jury. The court found against the defendant and gave judgment for $149, and defendant seeks this review.

The action is one sounding in tort for the negligent carriage of the eggs by defendant.

It is not disputed that plaintiff neither paid the draft attached to the bill of lading nor had possession of the bill of lading. While it is claimed that it was agreed that the claim against defendant for damage to the eggs should belong to the defendant in error, there is no assignment of such chose in action from T. Jensen & Bros, to plaintiff, set up in plaintiff’s pleading, and no such assignment appears in the record as evidence. Leemon v. Grand Crossing Tack Co., 187 Ill. App. 247, is conclusive on this point, where it was said:

“However, we must reverse this judgment for the reason that plaintiff has not in his pleading, on oath or by affidavit, alleged that he was the actual bona fide owner of this chose in action, and how and when he acquired title, as required by sec. 18, ch. 110, Illinois Statutes (J. & A. ¶ 8555). It is no answer to say that the absence of this affidavit was not made an issue by any affidavit of merits filed by defendant in the court below, as we do not understand that the affidavit of merits should contain conclusions of law.”

Defendant in its brief says: “Upon considering the circumstances surrounding the transaction, plaintiff in error is of the opinion that damages should be paid T. Jensen & Bros., and in order to avoid a double payment this writ of error was sued out.”

It is clear that the title to the eggs at the time they were damaged was in the consignor, Jensen & Bros.; and not in the plaintiff. The consignor at that time had not parted with its title to the eggs. It had neither paid the draft attached to the bill of lading nor obtained possession of the bill of lading. These were essential conditions to be performed by plaintiff in order to vest it with title to the eggs. The fact that subsequently plaintiff purchased the eggs of the consignor on different terms had no retroactive effect, neither did such subsequent purchase operate to change the title to the eggs at the time they were damaged from the consignor to plaintiff. The right to recover damages for the negligent carrying of the eggs was a chose in action. This right neither by the pleadings nor proof was shown to have been shifted from the consignor to the plaintiff, although plaintiff proceeds upon the theory that at the time of the damage it was the consignee of the eggs. Therefore plaintiff has no right of action against defendant for its negligent carrying of the eggs.

The $70.53 which defendant requests this court to adjudge to plaintiff not being in this case, we are without jurisdiction to so order.

As plaintiff has no cause of action for damages resulting from the negligent carriage of the eggs in suit, the judgment of the Municipal Court is reversed.

Reversed.


author: Mr. Justice Barnes

text:
    Albert A. Newman, Appellee, v. Newman Clock Company, Appellant.
    Gen. No. 20,950.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed November 16, 1915.

      Abstract of the Decision.
    1. Appeal and error, § 1165

      —what is effect of confession of error. A confession of error does not preclude the consideration of errors not confessed.
    2. Appeal and error, §1783

      —when reversal without remand proper on confession of error. Where, in an action to recover an instalment of salary, the appellee confessed error in the admission in evidence of a judgment in his favor for a prior instalment, which had since been-reversed by the Supreme Court holding that defendant was not liable, the court, notwithstanding plaintiff’s confession of error, may consider defendant’s assignment of error based upon the refusal of the trial court to give a peremptory instruction, and since, under the undisputed facts, there could be nO' recovery, may reverse without remanding.
    Statement of the Case.
    Action by Albert A. Newman, plaintiff, against the Newman Clock Company, defendant, in the Municipal Court of Chicago, to recover instalments of salary claimed under a written contract. Evidence, of a judgment obtained in a prior action brought to recover other instalments of salary under the same contract was admitted as an adjudication of the question of liability. Since the rendition of the judgment appealed from, such prior judgment has been reversed by the Supreme Court (268 Ill. 426, aff’g 191 Ill. App. 343), holding as matter of law that the acts of plaintiff shown by the record in that case amounted to a breach of the contract releasing defendant from liability thereon. From a judgment for plaintiff, defendant appeals.
    Amos W. Marston and Winston, Payne, Strawn & Shaw, for appellant.
    West & Eckhart, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Panagiotis Zisinatos and Andreas Galineas, Appellees, v. Continental & Commercial National Bank and Anton J. Cermak, Bailiff, Appellants.
    Gen. No. 22,017.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 10

      —when action for trial of ■right to property is of fourth class. A proceeding for the trial of the right to property is an action of the fourth class under the Municipal Court Act, sec. 2, subd. 4 (d) (J. & A. 3314).
    2. Municipal Court of Chicago, § 27

      —when extension of time for filing hill of exceptions not in apt time. Where it appears that an extension of the time for filing a bill of exceptions in a fourth-class action under section 2, subd. 4 (d) of the Municipal Court Act (J. & A. If 3314) was not made within thirty days from ttie rendition of the judgment appealed from, the Appellate Court will strike the bill of exceptions on motion of appellee, for the reason that an extension of such filing time is not allowed except within thirty days from the rendition of such judgment.
    Appeal from the Municipal Court of Chicago; the Hon. R. F. Robinson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1915.
    Appeal dismissed.
    Opinion filed November 16, 1915.
    Statement of the Case.
    Action by Panagiotis Zisinatos and Andreas Galineas, plaintiffs, against the Continental & Commercial National Bank and Anton J. Cermak, bailiff of the Municipal Court of Chicago, defendants, in the Municipal Court of Chicago. From a judgment for plaintiffs, defendants appeal.
    Mayer, Meyer, Austrian & Platt, for appellants.
    G. A. Buresh, for appellees.

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

   Mr. Justice Barnes

delivered the opinion of the court.

3. Municipal Court of Chicago, § 24 —when judgment not appeal-able. There being no statute authorizing an appeal from the Municipal Court of Chicago in a fourth-class case, an appeal cannot be taken in such case, and if taken will be dismissed.


author: Mr. Presiding Justice McSurely

text:
    City of Chicago, Defendant in Error, v. Samuel Isaacson, Plaintiff in Error.
    Gen. No. 21,492.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court of Chicago, § 26

      —when bill of exceptions insufficient. A document purporting to be a bill of exceptions which is but a recital of the proceedings of the trial without containing either the names of the witnesses or the evidence is not “a correct statement * * * of the facts appearing upon the trial and all questions of law,” or “a correct stenographic report of the proceedings at the trial,” required by section 23 of the Municipal Court Act, Illinois Statutes, c>>- 37 (J. & A. If 3335), and will be stricken on motion of appellee.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed November 29, 1915.
    Statement of the Case.
    Action by the City of Chicago, plaintiff, against Samuel Isaacson, defendant, in the Municipal Court of Chicago. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    William Slack, for plaintiff in error; Roman G. Lewis, of counsel.
    Richard S. Folsom, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Samuel Isaacson, Plaintiff in Error.
    Gen. No. 21,493.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed November 29, 1915.
    Statement of the Case.
    Action by the City of Chicago, plaintiff, against Samuel Isaacson, defendant, in the Municipal Court of Chicago. The facts and reasons for the decision in this case were identical with those in City of Chicago v. Isaacson, No. 21,492, ante, p. 376. The decision in that ease is applicable to this case.
    William Slack, for plaintiff in error; Roman G. Lewis, of counsel.
    Richard S. Folsom, for defendant in error.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Leo Legowski, Plaintiff in Error, v. Moreland & Company, Defendant in Error.
    Gen. No. 21,081.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by Leo Legowski, plaintiff, against Moreland & Company, defendant, in the Superior Court of Cook county, to recover for personal injuries received by plaintiff while employed by defendant, as a result of a fall from some uncovered floor joists across which he was walking in a building under construction by defendant. To reverse a judgment of nil capiat for defendant entered on a verdict of not guilty, plaintiff prosecutes this writ of error.
    At the time of the accident plaintiff was forty-one years old, with fifteen years’ experience working on buildings. He had worked on the present building four or five months as a general laborer, carrying brick, etc. He testified that he was ordered by the foreman to carry bricks to a bricklayer; that to reach the bricklayer it was necessary to cross on floor joists which were uncovered, and plaintiff said to the foreman that planks should be laid on the joists over which he could walk, but the foreman said this was unnecessary; that as plaintiff stepped on a joist it “wabbled” and he fell, striking his side on the edge of the joist. On the contrary there was sufficient testimony to cause the jury to believe that nothing was said by plaintiff or the foreman about planks; that plaintiff was thoroughly experienced in walking over uncovered joists and that that whs the customary thing for workmen to do; that the joist in question was not loose and did not “wabble”; other, workmen had walked on it and noticed nothing wrong with it; that plaintiff fell because he stepped on a mortar board lying on the joists, which tipped.
    Gallagher & Messner, for plaintiff in error.
    Ralph F. Potter, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 137 —when judgment for defendant sustained. In an action by an employee to recover for personal injuries due to a fall from uncovered floor joists in a building under construction, where plaintiff was working as a general laborer, evidence held to sustain a judgment for defendant.

2. Master and servant, § 137 —when structural act inapplicable. In an action to recover for personal injuries sustained by plaintiff as a result of falling from joists across which he was walking while employed by defendant as a general laborer, instructions which ignored section 1 of the “Structural Act” (Hurd’s Rev. St., ch. 48, J. & A. ff 5368), relating to the construction of scaffolds, hoists, cranes, etc., held not erroneous for the reason that plaintiff’s fall was not due to defects in any of the appliances mentioned in that statute, which' had no application to the case.


text:
    William T. Wright, Plaintiff in Error, v. John L. Rodgers and Mrs. John L. Rodgers, Defendants in Error.
    Gen. No. 21,146.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action of replevin by William T. Wright, plaintiff, against John L. Rodgers and Mr.s. John L. Rodgers, defendants, to recover possession of a dog. To reverse a judgment for defendant, plaintiff prosecutes this writ of error.
    Martin & Martin, for plaintiff in error.
    Julius Goldzier and Adolph S. Froehlich, for defendants in error.

      Abstract of the Decision.
    Replevin, §164

      —when judgment sustained. In an action of replevin to recover possession of a dog, where the evidence was conflicting as to its identity, but the trial court had opportunity to verify the testimony of witnesses by examination and observation of the dog, which was produced in the trial court, held to sustain a judgment for the defendant.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Johanna Haller, Defendant in Error, v. R. N. Hopkins, Plaintiff in Error.
    Gen. No. 21,158.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action of replevin by Johanna Haller, plaintiff, against R. N. Hopkins, defendant, in the Municipal Court of Chicago, to recover possession of goods wrongfully seized on a distress warrant as the property of a third person. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Defendant, under, a distress warrant authorizing him to distrain for rent due from Walter A. Sanoica for premises No. 2013 West North avenue, seized store fixtures which Johanna Haller, plaintiff, claimed belonged to her and not to Sanoica. The property seized consisted of show cases, cash register and desk.
    The evidence tended to prove that prior to March 1, 1909, this property belonged to Otto G. Haller and was used in a drug store owned by him. On that date by bill of sale he conveyed this property to plaintiff, his wife, and the bill of sale was duly recorded in the recorder’s office of Cook county. Subsequently Otto Gr. Haller died. On March 30, 1912, plaintiff, who was not a druggist, made an agreement with Sanoica, who was a druggist, to manage the drug store at No. 2013 West North avenue for a period ending March 31, 1913, which agreement was subsequently extended for a period of five years. By this agreement the stock and fixtures were leased to Sanoica for a rental payable in monthly instalments. He was also to assume the rent of the store room No. 2013 West North avenue. The lease of this store room to Haller (although the exact lessee does not clearly appear) apparently having terminated, a new lease of No. 2013 was made by Tabor, Fay et al., trustees, etc., who had recently purchased this property, to Sanoica. This lease was dated September 22, 1913, and was for a period of about six years. Sanoica was unable to keep up his payments to plaintiff under his contract with her, and about September, 1914, by mutual agreement this contract was terminated and the stock and fixtures of the drug store were moved out of No. 2013 and into No. 2011, a store room which she had leased. Sanoica continued working for her. The distress warrant was for rent due from Sanoica for October, 1914, of No. 2013, but defendant seized the property which was in plaintiff’s store, No. 2011.
    The landlords, through their agent, were informed two days before the levy that plaintiff and not Sanoica owned the store, and at the time of the levy the defendant was specifically so informed.
    Franklin B. Vaughan, for plaintiff in error.
    Louis Pinderski and J. Arthur Johnson, for defendant in error.

      Abstract of the Decision.
    1. Landlord and tenant, § 366

      —when title to distrained property shown to he m third person. In an action of replevin to recover possession of personal property wrongfully seized on a distress warrant as the property of a third person, evidence examined and "a finding that at the time the distress warrant was levied plaintiff had both title to and possession of the property sought to be recovered, held warranted by the evidence.
    2. Landlord and tenant, § 366

      —when landlord not misled as to ownership in distraining property. In an action of replevin to recover personal property belonging to plaintiff, consisting of fixtures formerly used in a drug store which were wrongfully seized on a distress warrant against, a third person, where it appeared that the property when seized was not in the possession of such third person and that plaintiff claimed under a bill of sale duly recorded, and where it further appeared that plaintiff notified the landlord and defendant of her title before the seizure was made, held that such landlord could not have been misled as to the title to the goods, for the reason that the record of such bill of sale was constructive notice of plaintiff’s title, and defendant having acted in the face of notice of plaintiff’s title, any prior statements by such third person, claiming title in himself, if competent, would not excuse the act of defendant or affect plaintiff’s right to maintain the action.
    3. Landlord and tenant, § 44

      —when demand unnecessary. Where a taking of personal property is wrongful, .a demand is not necessary in order to maintain replevin to recover the goods taken.
    4. Replevin, § 114

      —what evidence admissible in action to recover distrained property. In an action of replevin to recover goods of plaintiff wrongfully seized by defendant under a distress warrant against a third person, a bill of sale duly recorded under which plaintiff claimed title to the goods, as well as a contract between plaintiff and such third person relating to the goods in question, are competent on the question of plaintiff’s title to the goods sought to be replevied, for the reason that whether or not such contract was a contract of sale in so far as the stock of a drug store was concerned, yet as to the fixtures it was clearly a contract of lease.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Clara Lejkowska, Defendant in Error, v. A. M. Godlewski, Plaintiff in Error.
    Gen. No. 21,183.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 943

      —when defect in record places burden of proof on plaintiff in error. Where a writ of error brings up only the statutory record, without a bill of exceptions, statement of facts or stenographic report of the proceedings in the trial court, plaintiff in error has the burden of showing affirmatively that such record shows the omission of something to his disadvantage, and in the absence of such a showing the legality of the proceedings shown by the record will be presumed.
    2. Dismissal, nonsuit and discontinuance, § 11

      —when allowed as to one defendant. Where two defendants are served, it is not error to allow plaintiff before trial to dismiss as to one defendant and to amend her statement of claim as to the other, even though the defendant had no notice, for the reason that when defendant is brought into court by service of process on him, it is his duty to be and appear until the case is disposed of, without further notice.
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by Clara Lejkowska, plaintiff, against A. M. Godlewski, defendant, in the Municipal Court of Chicago. To reverse a judgment for plaintiff for eight hundred dollars, defendant prosecutes this writ of error.
    W. G. Anderson, for plaintiff in error.
    Cavender & Kaiser, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Paul Gilis, also known as Powel Gilis, Defendant in Error, v. H. Krulewich, Plaintiff in Error.
    Gen. No. 21,193.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by Paul Gilis, also known as Powel Gilis, plaintiff, against H. Krulewich, defendant, in the Superior Court of Cook county, to recover money alleged to have been deposited by plaintiff in defendant’s savings bank. It was not disputed that a man named Powel Gilis made deposits and is entitled to withdraw the same, and the question was as to his identity with plaintiff. To reverse a judgment for plaintiff for $237, defendant prosecutes this writ of error.
    Plaintiff has possession of the bank book issued to Powel Gilis, and testified that he received it when he opened his account with defendant; that he made the deposits and received the withdrawals entered in the book; that the signature on the identification card was made by him. Other witnesses testified that plaintiff is the man to whom this book was issued and who had an account with defendant. Defendant introduced testimony tending to show that the signature of plaintiff was not made by the man who signed the identification card when the account was opened.
    M. A. Milkewitch, for plaintiff in error.
    E. P. Bradchulis, for defendant in error; Anthony J. Schmidt, of counsel.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Banks and banking, § 200 —when evidence sufficient to show identity of depositor. In an action to recover savings bank deposits made by a man named Powel G., where plaintiff’s name was Paul G. and where plaintiff’s identity with such depositor was disputed, evidence, including disputed signatures, examined and held sufficient to prove that plaintiff was the person who made the deposits in question.

2. Trial, § 285 —when case not argued on trial by court. A court trying a case without a jury is not required to listen to arguments of counsel.

3. Costs, § 67 —when statutory damages not allowed. On an appeal in an action to recover savings bank deposits made by plaintiff, held that plaintiff could not recover statutory damages.


text:
    Margaretha Schultz, Administratrix, Plaintiff in Error, v. National Brewing Company, Defendant in Error.
    Gen. No. 21,214.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 6, 1915.
    Rehearing denied December 20,1915.
    Statement of the Case.
    Action by Margaretha Schultz, administratrix of the estate of Frederick Schultz, deceased, plaintiff, against the National Brewing Company, defendant, in the Superior Court of Cook county, to recover for the death of plaintiff’s intestate. To reverse a judgment of nil capiat for defendant, entered on a verdict of not guilty ordered by the court, plaintiff prosecutes this writ of error.
    Plaintiff’s evidence tended to show that her intestate, whilé employed as a barn boss and engaged in and about his duties near a grain and malt elevator owned and operated by defendant, received injuries from an explosion in the elevator which resulted in his death. There was evidence tending to show the presence in the elevator of quantities of grain dust and the proximity of lighted gas jets; that such dust is of a highly explosive nature and on contact with flame or spark will explode; that this was a dust explosion; that the device used by defendant to remove dust was not effective for the purpose, and that other methods, which a witness described in detail, would prevent such an explosion.
    Abstract of the Decision.
    1. Trial, § 195

      —when direction of verdict improper. In an action to recover for death alleged to have been caused by defendant’s negligence, where there is evidence which, if standing alone, would fairly tend to support plaintiff’s case, a peremptory instruction for the defendant is error.
    2. Master and servant, § 126

      —what degree of corre required to provide safe place to worh. Reasonable care of an employer to provide a reasonably safe place to work is such care as is commensurate with the danger.
    3. - Master and servant, § 126

      —what degree of care required to guard against explosion. Grain dust being highly explosive, an employer in whose place of work such dust is present in large quantities must exercise a degree of care commensurate with the danger to guard against explosions.
    4. Master and servant, § 709

      —when care exercised to provide safe place to worh a question for fury. In an action to recover for the death of an employee due to an explosion of grain dust in the employer’s elevator, where it appeared that there were lighted gas jets in the proximity to quantities of such dust, the question whether the employer’s duty to use reasonable care to provide a reasonably safe place to work requires him to substitute another method of preventing such explosions is for the jury.
    Juul & Juul, for plaintiff in error.
    F. J. Canty, for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    John Bronstein, Defendant in Error, v. C. B. Shane, Plaintiff in Error.
    Gen. No. 21,229.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. George Bedford, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by John Bronstein, plaintiff, against C. B. Shane, defendant, in the Municipal Court of Chicago, to recover under a contract of employment from which it was alleged he was wrongfully discharged. From a judgment for plaintiff of eighty-seven dollars, defendant appeals.
    The evidence showed that plaintiff was employed as a cementer of rubber coats under a contract which provided that he “guarantees to give the same satisfaction in his work as he has heretofore been giving”; that before the contract was signed he made an average of eighteen dollars per week. The contract guaranteed that his earnings would be not less than that sum. By practically uncontradicted evidence it was shown that after the signing of the contract, with the possible exception of two weeks, he never earned this amount; that his earnings ran from ten dollars a week to about fourteen dollars a week, and that defendant paid him the difference; that the foreman reproved plaintiff for poor work, showing him defects and urging him to do better; that another employee, who was an examiner of work, found defects in the work and was compelled to return a considerable portion of the same to plaintiff to be done over; that he wasted considerable time during working hours by visiting and talking with other workmen; that he was threatened with discharge unless his work was bettered, but there was no improvement, and finally he was told to go by the foreman, who stated to him that he was discharged “because I cannot get this work done at all; your work is absolutely no good.”
    Abstract of the Decision.
    1. Master Ind servant, § 84

      —when evidence insufficient to support judgment for wages. In an action by a workman to recover wages alleged to be due under a contract of employment, evidence insufficient to support a judgment for plaintiff.
    2. Master and servant, § 76

      —when discharge a defense to action for wages. A workman who is justifiably discharged cannot recover wages after such discharge.
    Lewis F. Jacobson, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.