text:
    Fred Garst et al. Fred Garst, Appellee, v. Charles S. Jackson, Appellant.
    Gen. No. 23,636.
    1. Injunction, § 334

       — when bond is binding. A bond given on the issuance of an injunction which not only contains the conditions prescribed by Hurd’s Rev. St. ch. 69, sec. 8 (J. & A. U 6168), but also the further condition to pay the obligees such damages as may be “sustained” by them “or any one or more of them” by reason of the wrongful issuing of the injunction, is a voluntary obligation given on a good consideration consisting of the issue of the injunction and is binding on the obligor not only as to the statutory conditions but also as to the added condition.
    2. Bonds, § 28* — who must be parties plaintiff. In an action on a bond in which the legal interest of the obligees is joint, they must all appear as parties plaintiff.
    3. Appeal and error, § 1666* — when irregularity in making persons parties to action is waived. Irregularity in the procedure by which persons become parties plaintiff to an action is waived where the defendant made no motion to strike or dismiss and assigns no error on that ground on appeal.
    4. Bonds, § 41* — who entitled to judgment in action by joint obligees. Although all the obligees in a bond in which they have a joint legal interest must join in a suit thereon, the judgment will be for the use of that party who is shown to be equitably entitled to the money, where the condition is joint and several and binds the obligor to pay the obligees such damages as have been sustained by them or any one or more of them.
    5. Injunction, § 342

       — when surety on bond is concluded by damages awarded on dissolution of. The surety on an injunction bond conditioned to pay such damages as may be awarded against complainant in case the injunction shall be dissolved is generally concluded by the damages as so awarded in that action although he is not a party thereto.
    6. Injunction, § 384* — when error in amount of damages awarded on dissolution not available. Even though it was improper, on the dissolution of an injunction, to award damages against complainant in an amount exceeding 10 per centum of the enjoined judgment, such error cannot be availed of on an appeal from the judgment in a suit on the injunction bond.
    7. Injunction, § 338* — when conditions of bond construed as joint and several. Conditions of an injunction bond held to be, under a reasonable construction of the language employed, joint and several.
    8. Injunction, § 355* — when decree in injunction proceedings is admissible in action on bond. Where an injunction bond contains conditions by the obligor to pay such damages as may be sustained and such costs and damages as shall be awarded the obligees or any one or more of them, it is proper to admit in evidence, in an action on the injunction bond, the decree awarding damages entered in favor of a defendant in the injunction proceeding who is a plaintiff in the action on the bond, even though the decree awards damages in excess of 10 per centum of the judgment enjoined.
    9. Damages, § 190* — what is effect of decree as evidence of. A decree in favor of one is at least prima facie evidence that he sustained damages and to the amount awarded.
    Appeal from the Municipal Court of Chicago; the Hon. John A. Richabdson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 15, 1918.
    Charles A. Ward, for appellant.
    Levisohn & Levisohn, for appellee; Israel Cowen, of counsel.

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

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

   Mr. Justice Thomson

delivered the opinion of the court.

This is a suit in attachment brought in the Municipal Court of Chicago by Fred Garst, the appellee, hereinafter referred to as the plaintiff, against Charles S. Jackson, the appellant, hereinafter referred to as the defendant, on a bond given by one Prentiss with the defendant as surety, in connection with the issuance of an injunction by the Circuit Court of Cook county, which restrained the plaintiff here, with others, from enforcing a judgment amounting to $206.62, which had been recovered against Prentiss in the Municipal Court. Prentiss was the complainant in the injunction proceedings.

By the terms of the bond in question, Prentiss, as principal, and the defendant, as surety, were held and firmly bound unto the obligees named, in the sum of $1,000. The bond recited that Prentiss had filed his bill of complaint against said obligees, praying for an injunction restraining the taking of any further proceedings in the case of Daniel J. Garst v. Frank J. Prentiss in the Municipal Court, and that it had been ordered that an injunction issue upon said Prentiss, giving bond and security “as provided by law.” The condition of the bond was such that if Prentiss or the defendant, or either of them, shall pay or cause to be paid to the said obligees “Anton J. Cermak, bailiff of the Municipal Court of Chicago, Joseph Crawford, deputy bailiff of the Municipal Court of Chicago, Arthur A. Levisohn and Sol. Levisohn, Fred Garst and Peterson City Express, Coal and Van Company, a corporation, of the City of Chicago, their executors, administrators, or assigns, all damages which may be sustained by the said defendant, or any one or more of them by reason of the wrongful issuing of such injunction, and also all such costs and damages as shall be awarded against the said complainant in case said injunction shall be dissolved; and also pay all costs and money due to the plaintiff in case #510,935, entitled Daniel J. Garst vs. Frank Prentiss, in the Municipal Court of Chicago, Illinois, and such damages as may be awarded in case said injunction be dissolved then the above obligation to be void; otherwise to be and remain in full force and virtue.”

The plaintiff began this suit alone, filing his affidavit for attachment on which the writ was duly issued and served. In that connection, he filed his attachment bond, with himself as principal, and Katie Garst as surety. The first statement of claim appearing in the record is entitled “Fred Garst vs. Charles S. Jackson.” Later, the court gave the plaintiff leave to file an amended affidavit for attachment and attachment bond. These were duly filed. The plaintiff was the affiant in the new affidavit. In the new attachment bond, all the obligees in the injunction bond, on which this suit is based, appeared as principals with Katie Garst as surety. At the same time, the court granted the plaintiff leave to withdraw his statement of claim and substitute another one. In this new statement of claim, all the obligees in the injunction bond appear as parties plaintiff. A motion was duly made by the defendant to strike this last statement of claim from the files, which motion was denied, whereupon the defendant filed his affidavit of merits.

On the trial, the plaintiff introduced the bond on which this suit is based, and a certified copy of a decree entered in the injunction proceedings in the Circuit Court, on the suggestions of damages, in which the court found that Fred Garst, one of the defendants in that case, had sustained damages and assessed the same at $686.02, and decreed that the complainant, Prentiss, pay the same with interest thereon from that date. The plaintiff further introduced in evidence a disclaimer in writing wherein all the “co-plaintiffs” herein disclaimed “any right, title or interest to any damages which we may be entitled to by virtue of being co-obligees in the bond sued on.” This was signed by all the obligees in the bond except Fred Garst. The court overruled the defendant’s motion to dismiss the suit at the close of the evidence, and assessed damages in favor of the plaintiff for $720.32, being the amount of damages awarded to Fred Garst in the injunction proceedings in the Circuit Court, and interest thereon, and entered judgment for the penal sum of the bond, from which judgment the defendant has appealed.

Section 8 of chapter 69 of the Illinois Statutes (J. & A. if 6168) under which this bond was given, reads as follows: “Before an injunction shall issue to enjoin a judgment, the complainant shall give bond to the plaintiff therein, in double the amount of such judgment, with sufficient surety, approved by the court, judge or master, conditioned for the payment of all moneys and costs due to the plaintiff in the judgment, and such damages as may be awarded against the complainant in case the injunction is dissolved. If the injunction be dissolved in whole or in part, the complainant shall pay, exclusive of legal interest and costs, such damages as the court shall award, not exceeding ten per centum, on such part as may be re- ■ leased from the injunction.”

It will be seen that the bond involved here not only contains those conditions prescribed by the statute, but it is further conditioned to pay the obligees in the bond such damages as may be “sustained” by them “or any one or more of them” by reason of the wrongful issuing of the injunction. This is a voluntary obligation given on a good consideration, namely, the issuing of the injunction, and, as such, is binding on the defendant, not only as to its so-called statutory conditions, but also as to the condition it contains and which is beyond those specified in the statute. Wan-less v. West Chicago St. R. Co., 77 Ill. App. 120; Barnes v. Brookman, 107 Ill. 317. The bond involved in this case is a covenant running to the obligees jointly under conditions of which at least one is joint and several expressly, and the others may be said to be by implication. The legal interest of the obligees in the bond is joint by virtue of the language employed in the covenant of the bond, and therefore they must all appear as parties plaintiff in any suit brought on the bond. Although all the obligees in this bond, other than Fred Garst, the original plaintiff, became parties herein, somewhat irregularly, the defendant made no motion to strike or dismiss, nor has he assigned any error on that ground, and he must, therefore, be deemed to have waived any such irregularity in the procedure. However, as our Supreme Court said in International Hotel Co. v. Flynn, 238 Ill. 636, at page 641, in quoting from Emery v. Hitchcock, 12 Wend. (N. Y.) 156, “the legal interest of a party in the contract or covenant and the benefit to be derived from or under it are very different things and must not be confounded,” and although all the obligees in the bond must join in the suit on the bond where they have a joint legal interest in it, the judgment will be for the use of that party who is shown to be equitably entitled to the money, where the condition is joint and several, and binds the obligors to pay the obligees such damages as have been sustained by them or any one or more of them. The judgment for the plaintiff was reversed in the case of International Hotel Co. v. Flynn, supra, because only one of the two obligees, whose legal interest in the bond was joint, appeared as party plaintiff in the suit. In the case at bar, the trial court did not err in overruling defendant’s motion to strike the last statement of claim from the files on the ground that it alleged damages as to one of the obligees alone, nor in admitting evidence of such damages, nor in overruling defendant’s motion to dismiss on the ground that the evidence disclosed no damages to the obligees jointly. .

The surety on an injunction bond, conditioned to pay such damages as may be awarded against the complainant in case the injunction shall be dissolved, is generally concluded by the damages as so awarded in that action, although he is not a party thereto. Weaver v. Poyer, 73 Ill. 489; McAllister v. Clark, 86 Ill. 236. It may well be, as contended by the defendant, that apon the dissolution of the injunction it was error for the trial judge in that action to award damages against the complainant in an amount exceeding 10 per centum of the judgment which had been enjoined. Higgins v. Bullock, 73 Ill. 205, 209; Camp v. Bryan, 84 Ill. 250; Hollister v. Sobra, 264 Ill. 535, 547. But this is not an appeal from that decree, nor does the record show that any appeal was ever prayed in that case.

A reasonable construction of the language employed in this bond makes all the conditions it contains joint and several so that by this second condition set forth in it the obligors undertake to pay such costs and damages as shall be awarded the obligees “or any one or more of them,” although those precise words as contained in the first condition are not repeated. Therefore the trial court did not err in admitting in evidence the decree awarding damages which had been entered in favor of one of the defendants in the injunction proceedings, who is one of the plaintiffs here, and that ruHng would not be error even if the recovery in this case is limited, as contended for by the defendant, to the first condition of the bond wherein the obligors undertake to pay such damages as may be “sustained” by the obligees, or one or more of them, for the decree in question, finding that the defendant Fred Garst (plaintiff here) had sustained damages and assessing them at a given amount and awarding damages as so assessed, was at least prima facie evidence that he had “sustained” damages and to the extent as there awarded. Such decree was admissible under either condition of the bond, notwithstanding the fact it awarded damages of an amount that was in excess of the 10 per centum of the judgment enjoined. We have carefully examined the record and are of the opinion that the prima fade case as thus made out by the plaintiff was not overcome by the evidence submitted.

For the reasons given, the judgment of the Municipal Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thomson

license: Public Domain

text:
    Otto Schmidt, Executor, Appellant, v. Samuel C. Pirie et al., trading as Carson, Pirie, Scott & Company et al., Appellees.
    Gen. No. 23,691.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 15, 1918.
    Statement of the Case.
    Replevin by Otto Schmidt, executor of the estate of Rebecca Schmidt, deceased, plaintiff, against Samuel C. Pirie and others, trading as Carson, Pirie, Scott & Company, defendants, to recover certain furs. After suit was started, Simon Hausman, Henrietta Hausman, Samuel Lederer and Lena Lederer, hereinafter referred to as the defendants, were made parties to the suit as intervening defendants on motion of Carson, Pirie, Scott & Company. A trial was had before the court without a jury, as a result of which the court found that the right to the possession of the property replevied was not in the plaintiff and awarded a writ of retorno. From this judgment, plaintiff appeals.

      Abstract of the Decision.
    Guts, § 29

      - — when irrevocable joint gift by father to daughters of wearing apparel is shown. The delivery by a father of receipts from a corporation for wearing apparel stored with it, to one of his two daughters, in the presence of the other, with the statement that he wished her to take the receipts and divide the apparel with her sister, held to show the father’s intention to make and that he made an absolute and irrevocable gift of the apparel to the daughters to take effect immediately, even though the receipts contained a provision requiring a written order signed by the owner in case delivery should be desired to be made to any other than the person named in the receipt, and that by such gift and delivery the daughters acquired a joint interest in the apparel.
    Musgrave, Oppenheim & Lee, for appellant.
    Moses, Rosenthal & Kennedy, for appellees Henrietta Hausman, Simon Hausman, Lena Lederer and Samuel Lederer; Julius Moses and Hirsch E. Soble, of counsel.

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

   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Robert H. Taft, Appellant, v. William Herley, Appellee.
    Gen. Mo. 23,726.
    (Mot to be reported in full.)
    Abstract of the Decision.
    1. Frauds, Statute of, § 91

       — when recovery may he had on implied contract. After default has been made by either party to a contract voidable under the Statute of Frauds, neither party can recover against the other on the basis of an implied contract as to such part of the voidable contract as remains to be executed by the plaintiff, but only as to such part as he has executed, and, to recover, plaintiff must both allege and prove that he has executed his part of the contract, either in whole or in part, and, on the basis of that execution, seek to recover the fair and reasonable compensation due him by reason of the execution.
    2. Municipal Court of Chicago, § 13* — when affidavit of defense in action on contract for sale of stock is sufficient. In an action to recover a balance claimed to be due on a contract for the sale of stock, the statement of claim in which does not allege execution of the contract by delivery of the stock, an affidavit of defense which avers that the parties entered into a verbal agreement for the purchase of the stock by which defendant was to pay a certain amount in cash and notes and also to convey to plaintiff certain real estate and that such agreement fixed no value for the real estate and no purchase price for the stock, and sets up the Statute of Frauds as a defense, interposes a complete defense to the action.

      Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 15, 1918.
    Statement of the Case.
    Action by Robert H. Taft, plaintiff, against William Herley, defendant, to recover a balance alleged to be dne on a sale of shares of stock under a contract. From a judgment for defendant, plaintiff appeals.
    Pope, Hoig, Fuller & Lee, for appellant.
    Levisohn & Levisohn, for appellee; Israel Co wen, of counsel.

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

   Mr. Justice Thomson

delivered the opinion of the court.

3. Frauds, Statute oe — what does not constitute execution of contract for sale of stock taking case out of. A tender of stock, as to the sale of which the parties had contracted orally, after the purchaser had instituted proceedings against the seller to recover back so much of the purchase price as he had paid, does not constitute such an execution of the contract by the seller as will take the contract from within the Statute of Frauds.


text:
    Abraham M. Liebling, Appellee, v. Charles Renfer and Anna M. Renfer, Appellants.
    Gen. No. 23,753.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 15, 1918.
    Statement of the Case.
    Action by Abraham M. Liebling, plaintiff, against Charles Renfer and Anna M. Renfer, defendants, to recover back earnest money paid by him to defendants under a contract for the purchase of real estate. From a judgment for plaintiff for $750, defendants appeal.
    Nels J. Holter, for appellants.
    Jacob Brisgall, for appellee.

      Abstract of the Decision.
    1. Vendor and purchaser — what defense not available to vendor in action to recover earnest money. Even though a contract for the purchase of real estate which requires the vendor to furnish a. merchantable abstract or guarantee policy in a reasonable time contains a further provision declaring time to be of the essence of the contract, the vendor cannot set up the latter provision as a defense to an action by the purchaser to recover earnest money paid under the contract, where it appears that 6 weeks elapsed before any attempt was made by him to submit anything to the purchaser as evidence of the condition of the title and the latter tenders a certified check for the full amount 2 weeks after the submission of such evidence.
    2. Vendor and purchaser, § 336

       — who has burden of showing waiver of requirement as to abstract or title guarantee policy. In an action to recover back earnest money paid under a contract for the purchase of real estate, where defendant sets up as a defense that plaintiff had waived a provision of the contract requiring defendant to furnish a merchantable abstract of title or a title guarantee policy within a reasonable time, the burden of showing such waiver is on defendant.
    3. Vendor and purchaser, § 336* — when waiver of requirement as to abstract or guarantee policy not shown. Waiver of a condition in a contract for the purchase of property by which the vendor is required to furnish a merchantable abstract of title or a guarantee policy within a reasonable time is not shown by evidence that no attempt was made to furnish the purchaser any evidence of the condition of the title until some 6 weeks after the contract was signed when an opinion of title by a title and trust company was tendered the purchaser, whereupon he stated that he could not “come across,” but 2 weeks thereafter tendered the seller a certified check for the full amount of the purchase price.
    4. Vendor and purchaser, § 73* — when purchaser not in default in paying first instalment. Where the conditions of a contract for the purchase of property require the vendor to furnish the purchaser a merchantable abstract of title or title guarantee policy and that the purchaser shall pay the first instalment of the price in 5 days after the title has been examined, found good and accepted by him, he cannot be placed in default until the vendor has complied with the condition as to furnishing the abstract or policy.

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

   Mr. Justice Thomson

delivered the opinion of the court.


author: Mr. Justice McDonald

text:
    Frances Bowser, Appellee, v. Musical Courier Company, Appellant.
    Gen. No. 23,600.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and erbor, § 1414

       — When finding not disturbed. A finding based upon conflicting evidence will not be disturbed on appeal unless it is clearly and manifestly against the weight of evidence.
    Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed May 28, 1918.
    Statement of the Case.
    Action by Frances Bowser, plaintiff, against Musical Courier Company, a corporation, defendant, to recover for commissions on subscriptions to defendant’s publication and on advertising contracts procured for the publication. From a judgment for plaintiff for $388.25, defendant appeals.
    Culver, Andrews, King & Stitt, for appellant.
    Farrell & Thompson, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


author: Mr. Presiding Justice Holdom

text:
    The People of the State of Illinois, Defendant in Error, v. Helen Guthman, Plaintiff in Error.
    Gen. No. 23,181.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Criminal law, § 39

       — when jurisdiction obtained of person arrested without warrant. A court has jurisdiction to hear a criminal case and pronounce judgment, although defendant was arrested without a warrant, where defendant submits herself to the jurisdiction of the court without challenging the mode or manner of her arrest. •
    2. Arrest, § 25* — when officer may arrest person without warrant. An officer may arrest a person without a warrant if he has reasonable ground for believing that the person arrested has committed a crime.
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Helen Guthman, defendant, for being an inmate of a house of ill fame, in violation of Rev. St. ch. 38, sec. 57a-l [Callaghan’s 1916 St. Supp. 3591(1)]. From a judgment of conviction and sentencing defendant to imprisonment in the house of correction for 60 days, defendant brings error.
    A. L. Gettys and John J. McMahon, for plaintiff in error.
    Maclay Hoyne, 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. Presiding Justice Holdom

delivered the opinion of the court.

3. Criminal law, § 497 — when assumed that offense was committed in presence of officer making arrest without warrant. Where a defendant in a criminal prosecution for being an inmate of a house of prostitution was arrested without a warrant, in the absence of the evidence in the record it will be assumed that the offense charged was committed in the presence of the officer, and that such evidence proved that defendant was an inmate as charged.

4. Arrest, § 25* — when 6y officer without warrant lawful. If the offense of being an inmate of a house of prostitution is committed in the presence of the officer making the arrest, such arrest is lawful, although made without a warrant.

5. Criminal law, § 39* — when magistrate has jurisdiction of person arrested without warrant. Where one is arrested and brought before a magistrate without a warrant, nothing further is required to be done to give him jurisdiction, but a written complaint or information against the defendant, setting out the offense, is necessary.


text:
    Frank A. Messenger, Defendant in Error, v. Mrs. A. B. Wendell, Plaintiff in Error.
    Gen. No. 23,551.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Action by Frank A. Messenger, plaintiff, against Edward Wendell and Mrs. A. B. Wendell, defendants, jointly, to recover for goods sold and delivered. Before the trial the action was discontinued as to Edward Wendell and. the statement of claim was not thereafter amended. From a judgment for plaintiff for $1,828.54, defendant Mrs. A. B. Wendell brings error.

      Abstract of the Decision.
    1. Appeal and error, § 1303

       — when presumed evidence supports judgment. In the absence of the statutory record, the presumption obtains on appeal that the evidence heard warrants the finding and supports the judgment of the trial court.
    2. Municipal Court of Chicago, § 13* — how infirmity in statement of claim cured. An infirmity in a statement of claim is cured by verdict.
    3. Contracts, § 213* — when joint obligations are joint or several. Under Rev. St. ch. 76, sec. 3 (J. & A. jf 6746), providing that all joint obligations and covenants shall be taken and held to be joint and several obligations and covenants, in actions ex contractu, joint obligations are joint or several.
    4. Pleading, § 466* — when defeat, imperfection or omission cured by verdict. Where there is any defect, imperfection or omission in pleading, whether in substance or form, which would have been fatal to objection upon demurrer, yet if the issue found be such as necessarily required on the trial proof of the fact so defectively and imperfectly stated, or omitted, and without which it is not to be presumed the judge would have directed the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cured by verdict.
    5. Dismissal, nonsuit and discontinuance, § 11* — when dismissal as to one defendant does not worlc discontinuance of entire action. The rule that in a joint action ex contractu a dismissal as to one defendant effects a discontinuance of the entire action does not apply where the party against whom dismissal was had was not a party to the contract.
    6. Appeal and error, § 1297* — when assumed that person dismissed out of case was not party to contract. In the absence of evidence, it will be assumed on appeal that a defendant who was dismissed out of the case in a joint action ex contractu was not a party to the contract sued on, but that the obligation was the several obligation of defendant and that proof of such fact was made by the evidence.
    Alvin E. Stein, for plaintiff in error.
    No appearance for defendant in error.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

7. Pleading, § 466 — what deject cured by verdict. A defect in pleading, in substance or form, which would he fatal on demurrer is cured by verdict where the issue joined is such as necessarily requires proof of the facts so imperfectly stated or omitted.


text:
    The People of the State of Illinois, Defendant in Error, v. Matthew Brady, Plaintiff in Error.
    Gen. No. 23,937.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Matthew Brady, defendant. Defendant was convicted for nonsnpport of his wife, bnt on his own motion was released on probation and gave bond. For a violation of the condition of his probation he was brought into court and ordered to pay his wife $10 a week. Subsequently he made a motion to vacate the judgment and finding of the court, which was denied, and he brings error.
    Thomas J. O’Hare, for plaintiff in error.
    Maclay Hoyne and Edward E. Wilson, for defendant in error.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Criminal law, § 373a — when motion to vacate judgment is properly denied. A motion to vacate a judgment in a criminal case is properly denied, in the exercise of the discretion of the trial court, where the affidavits in support of the motion do not present any facts excusing defendant from interposing as a defense at the time of his trial the matters disclosed in the affidavits.

2. Criminal law — when claim that defendant was denied right of representation by counsel is untenable. A claim on appeal in a criminal case that defendant was denied his statutory right of representation by counsel on his trial is untenable, where the record recites that he was represented by counsel at the time of trial.

3. Criminal law — what is sufficient finding by court of guilty of offense charged. In a criminal case a finding by the court that defendant was guilty “in manner and form as charged in the information herein” is sufficient as a finding that defendant is guilty of the offense charged.


text:
    The People of the State of Illinois, Defendant in Error, v. Peter Tuhl, Plaintiff in Error.
    Gen. No. 23,994.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Howard Hates, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Peter Tuhl, defendant, for “larceny of the value of $5.” From a judgment sentencing defendant to a term of one year in the house of correction and fining him $25 and costs, defendant brings error.

      Abstract of the Decision.
    1. Criminal law, § 497

       — when assumed, that corporation exists with initials stated in information. In a criminal prosecution for larceny of “the personal goods and property of the P. C. C. and St. L. R. R. Co.,” as charged in the information, where there is no evidence before the court on appeal and only the statutory record has been filed, it will be assumed that there is a corporation bearing such initials.
    2. Larceny, § 41* — what is essential part of finding. An essential part of the finding in a larceny case, by either court or jury, is the value of the property which is the subject of the larceny, and this cannot be dispensed with, as it is necessary to find the value in order to fix the punishment under the statute.
    3. Larceny, § 41*- — when finding 6y court is sufficient. In a larceny case, a finding by the court that the defendant is guilty of “the criminal offense of larceny to the value of $5,” though in-artificial, is sufficient.
    Harry P. Gabel and R. C. Merrick, for plaintiff in error.
    Maclay Hoyne and Edward E. Wilson, for defendant in error.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


author: Mr. Presiding Justice Holdqm

text:
    American Steel Spring Company, Appellee, v. William J. Boyer, Appellant.
    Gen. No. 24,018.
    (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 19

       — when contract not created. There is no meeting of minds of the parties so as to constitute a valid contract of sale of goods where the purchaser’s letter confirming an order on terms C. O. D. is met by a letter demanding cash in advance before proceeding with the order.
    Appeal from the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed with judgment of nil capiat and for costs.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Action by American Steel Spring Company, a corporation, plaintiff, against William J. Boyer, defendant, to recover for breach of a contract to purchase certain springs. From a judgment against him for $57.80, defendant appeals.
    P. R. Boylan, for appellant.
    H. M. Adams, for appellee.

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

   Mr. Presiding Justice Holdqm

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Frances Hood, Plaintiff in Error, v. William J. Gleason, Defendant in Error.
    Gen. No. 24,038.
    1. Bastards, § 7

       — when bastardy action may be maintained. A woman, married after conception and the filing of a complaint, can maintain an action for bastardy against the putative father of the bastard child.
    2. Bastards, § 7* — when child is not legitimate.' A child, a bastard at conception, is not legitimate at birth because of the marriage of the mother to a man who was not the cause of her pregnancy.
    3. Bastards, § 2* — when presumption of legitimacy does not obtain. While the legal presumption obtains that every child born in wedlock is legitimate, still such presumption is rebuttable when the proof conclusively shows that the husband had no power of procreation or that the circumstances were such as to render it impossible that he could be the father of the child, and such child will be adjudged to be a bastard.
    4. Bastards, § 7* — when child is a bastard. A child of a married woman begotten by one who is not the husband of the ni other is a bastard.
    5. Bastards, § 33* — what is question of fact. The true test in determining whether a child born in lawful wedlock is legitimate is whether the husband of the woman who gives birth to the child is its father and this is a question of fact.
    6. Bastards, § 7* — when child of married woman is a bastard. Where a woman is pregnant with a child, born five days after her marriage, which was conceived several months before she met her husband, making it impossible for him to be the father of the child, such child is, notwithstanding the marriage of the mother with a man not its father, a bastard.
    7. Bastards, § 3* — when husband under no duty to contribute to support of wife’s bastard. A husband is under no duty to support or to contribute to the support of his wife’s bastard child, notwithstanding the fact that the child was born five days after his marriage to the mother.
    Error to the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded.
    Opinion filed June 10, 1918.
    Rush B. Johnson, for plaintiff in error.
    James W. Mraz, for defendant in error.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Defendant was proceeded against under the Bastardy Act (J. & A. 703 et seq.). The relatrix filed her complaint May 28, 1917, alleging that she was an unmarried woman pregnant with child, which child would by law be deemed a bastard, and that the defendant, William J. Gleason, was the father of that child. A warrant was issued and defendant arrested thereunder, held to bail, and a jury trial had.

Sufficient facts appear from the evidence of the prosecution which, uncontradicted as they are, convict defendant of being responsible for the pregnancy of relatrix and the subsequent birth of her child. At the conclusion of relatrix’s testimony the court instructed a verdict of not guilty on the admitted fact that at the time of the birth of her child relatrix was a married woman.

It appears from the evidence that the illicit relationship between relatrix and defendant began June 5, 1916, and continued until the latter part of May or the first part of June, 1917. Relatrix discovered she was pregnant in March, 1917, and her child was born December 8, 1917. Relatrix was December 3, 1917, five days prior to the birth of her child, married to one Henry Weland, whom she met for the first time August 8, 1917, before which time she had never seen him. The child, a boy, was living at the time of the trial.

The important question presented for our decision is, Can a woman, married after conception and the filing of the complaint, maintain an action for bastardy against the putative father of such child? In other words, can the putative father of a bastard child escape his statutory responsibility when the mother of such bastard child marries subsequent to pregnancy and the filing of her complaint, but prior to such child’s birth?

This is a case of first impression, as the precise point here involved has not been directly passed upon by a court of review in this jurisdiction. Defendant insists, however, that People ex rel. Wilmers v. Volksdorf, 112 Ill. 292, is conclusive against relatrix. We do not so view that decision. There is, on the contrary, much reasoning in the opinion which tends to support her case. Moreover, if it can be said the opinion holds that the true construction of the Bastardy Statute is that the mother must be unmarried at the time of the birth of the child, then, as that question was not involved in the case, it is clearly obiter dicta. In the Volksdorf case, supra, the child was born before the marriage of the mother, but the complaint under the act was filed after the birth of the child and after the marriage of the mother. The relatrix was held to be entitled to invoke the act against the putative father notwithstanding her subsequent marriage. In the Volksdorf case, supra, the court said:

“It is contended by appellee that the mother of a bastard child must be an unmarried woman at the time she makes complaint, while appellant claims that the word 'unmarried,’ in the section, is to be referred to the pregnancy or delivery of the mother. The statute authorizes the making of the complaint when a single woman is pregnant with child. In that case the complainant must be 'unmarried’ at the time of making the complaint. * * * The marriage of the mother of an illegitimate child, after delivery, to one not the father, cannot affect the status of such child, and her husband will not be liable for its support.”

This reasoning when applied to the facts of this case supports, we think, the contention that marriage of the relatrix after pregnancy and before delivery does not deprive her of the right to pursue her remedy under the Bastardy Act against the putative father after the child is bom.

A child, a bastard at conception, is not legitimate at birth because of the marriage of the mother to a man who was not the cause of her pregnancy. Nothing short of the marriage of the mother and the father of a child conceived as a bastard will remove the stigma of its being base born. While the legal presumption obtains that every child bom in wedlock is legitimate, still it is a presumption which is rebuttable when the proof conclusively shows that the husband had no power of procreation or that the circumstances were such as to render it impossible that he could be the father of the child, and such child will be adjudged to be a bastard. Powell v. State ex rel. Fowler, 84 Ohio St. 165. A child of a married woman begotten by one who is not the husband of the mother is a bastard. McLoud v. State, 122 Ga. 393. In Wilson v. Babb, 18 S. C. 59, a finding that a child born four and one-half months after marriage was illegitimate was sustained, and it was there held that “While a legitimate child is one born in lawful wedlock, and a bastard is one begotten and bom out of lawful wedlock, yet it does not follow that every child born in lawful wedlock is legitimate, nor does it require one to be both begotten and bom out of lawful wedlock to be a bastard. The true test is whether the husband of the woman who gives birth to the child is its father; and this must, of necessity, in every case, be a question of fact.” We think the foregoing quotation is an accurate statement of the law. Applying it to the instant case, we find that relatrix was pregnant with the child, bom five days after her marriage to Weland, several months before she and her husband had ever seen each other, making it impossible for him to be the father of that child, which child is therefore, notwithstanding the marriage of Ms mother with a man who is not his father, a bastard; and in the present state of the proofs defendant is the putative father of that child. As between the State, the husband of relatrix and the defendant, the Bastardy Act gives relatrix a remedy against defendant for the support of the child to the extent and in the manner provided by that act; and the law does not impose upon the husband any duty to support or to contribute to the support of his wife’s bastard child, notwithstanding the fact that the child was bom five days after his marriage to the relatrix. Willetts v. Jeffries, 5 Kan. 470, supports this statement. The Kansas Bastardy Statute is in essential particulars similar to our own. In the Willetts case, supra, the court said:

“The object of the statute is to protect the innocent child from destitution, and society from the burden of its support. A moral obligation rests upon every father (as well as every mother) to support his own offspring, and it would be strange if the statute can be so construed as to relieve any father, and particularly this class of fathers, from this moral obligation. A married woman gives birth to a bastard child begotten in fornication or adultery. She is divorced from her husband, perhaps for that cause alone. She is thrown upon society, destitute, disgraced and ruined, and shall her guilty paramour go free, simply because she was a married woman when the child was bom? Would it not be more in consonance with the dictates of natural justice for the partner of her guilt to be required to contribute his share towards the support of their innocent offspring? It would be strange if such is not the law. Strange, indeed, if this class of bastards, though small, is to be thrown upon society entirely destitute and unprovided for, and the guilty father go free.”

As it is clear that at the time of the filing of the complaint relatrix had a right to invoke the act, her subsequent marriage a few days before her bastard child was born does not rob her of the right to pursue such remedy to final judgment. Under the circumstances of this case, relatrix’s marriage subsequent to the filing of her complaint did not work an abatement of the proceeding.

The judgment of the Municipal Court is reversed, and as defendant was not on the trial afforded the opportunity of putting in his defense, if any he has, the cause is remanded for a new trial in accord with the views here expressed.

Reversed and remanded.


text:
    Fifi Rang, Plaintiff in Error, v. Louis Rang, Defendant in Error.
    Gen. No. 24,051.
    1. Equity, § 547

       — Who must preserve evidence justifying decree. In chancery it is incumbent upon the party in whose favor a decree granting relief is entered to preserve in the record the evidence justifying the decree.
    2. Equity, § 550* — when not presumed that evidence sufficient to support decree was heard. No presumption will be indulged that evidence sufficient to support a decree in chancery was heard if the evidence justifying the decree is not preserved in the record.
    3. Equity, § 549* — what finding will not sustain decree. The general finding that all the material allegations in a bill are proved and that the equities of the case are with complainant will not sustain a decree granting relief, where there is no finding of specific facts and the evidence is not preserved in the record.
    4. Equity, § 547* — When burden on husband to sustain order relieving him from payment of alimony. On an application for relief from payment of alimony, the burden is on the husband to sustain the order relieving him from the payment of alimony.
    5. Equity, § 549* — When order relieving from payment of alimony not sustained. An order for relief of a husband from the payment of alimony cannot be sustained on appeal where no facts are recited in the decree, but merely the conclusions of the chancellor upon facts which, he deduces from the testimony not preserved in the record.
    6. Divorce, § 110

       — when question of alimony adjusted. The question of alimony is at all times open for adjustment by the court in accord with the equities which may be made to appear upon the motion of either party.
    7. Divorce, § 113* — what does exempt defendant from payment of alimony. Although a defendant in divorce may he insolvent, that fact alone will not exempt him from performing the alimony decree, providing he still has the ability to earn money which will put him in a position to pay.
    8. Divorce, § 113* — what does not exempt husband from payment of alimony. The fact that a divorced wife, to whom alimony has been awarded, becomes unchaste is not ground for relieving the husband from the payment of alimony.
    Error to the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed.
    Opinion filed June 10, 1918.
    Rehearing denied June 24, 1918.
    Charles E. Erbstein, for plaintiff in error.
    George W. Field, 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. Presiding Justice Holdom

delivered the opinion of the court.

Complainant divorced defendant for adultery which he confessed in open court. Defendant was ordered, without protest from him, to pay alimony of $250 a month, which he paid until the October, 1917, instalment became due, which he refused to pay. Defendant, after being cited for contempt of court for not paying this instalment, petitioned the court to be relieved from the further payment of alimony on two grounds: One, the alleged lapse from sexual virtue of complainant; the other, financial embarrassment. Defendant charged complainant with but one act of sexual. indiscretion, and that with a person given the fictitious name of “John Doe.” He also sets up his loss of the property which he possessed at the time the order for alimony was entered. His fortune was lost, he claimed, in speculations upon the Chicago Board of Trade. No mention is made in his petition of his inability to earn money at a useful occupation, and no reason assigned why he cannot earn money enough to enable him to comply with the alimony order of the court. The order appealed from discharged defendant from all obligation to pay alimony other than the two instalments aggregating $500, due.at the time of the entry of the order. The court found that complainant had, since the entry of the decree of divorce, been guilty of “lewd and adulterous conduct” and that defendant had no fixed income and is unable to comply with the alimony decree.

There is no evidence in the record before us nor is there any recitation of evidential facts in the decree to support it.

The rule here applicable is well stated in Ohman v. Ohman, 233 Ill. 632, thus:

“In chancery it is incumbent upon the party in whose favor a decree granting relief is entered, to preserve in the record the evidence justifying the decree. Contrary to the rule of law, no presumption will be indulged that evidence sufficient to sustain the decree was heard if such evidence does not appear in the record. The general finding that all the material allegations in the bill are proved and that the equities of the case are with the complainant will not sustain a decree granting relief, where there is no finding of specific facts and the evidence is not preserved in the record. (Village of Harlem v. Suburban Railroad Co., 202 Ill. 301; Torsell v. Eiffert, 207 Ill. 621; Berg v. Berg, 223 Ill. 209; Becklenberg v. Becklenberg, 232 Ill. 120.) Where there has been a verdict of a jury or a report of a master finding the facts, such verdict or report preserves in the record the facts established instead of the evidence heard to establish the facts, and the evidence need not be otherwise preserved. (Thatcher v. Thatcher, 17 Ill. 66.) In this case there was neither the verdict of a jury, report of a master, depositions filed in the canse nor finding of specific facts in the decree. ’ ’

In the decree before ns no facts are recited — merely the conclusions of the chancellor upon facts which he deduces from the testimony which he evidently heard and to which we have not access. This is not sufficient to sustain the order in dispute, the burthen of sustaining which the law casts upon defendant. Berg v. Berg, 223 Ill. 209.

The question of alimony is at all times open for adjustment by the court in accord with the equities which may be made to appear upon the motion of either party. Such alimony may on proper showing be increased or decreased. While defendant in this case may be insolvent, such insolvency does not of itself relieve him from the payment of all alimony. Even in bankruptcy a decree for alimony is not discharged as to payments accruing subsequent to a discharge in bankruptcy. Although defendant may be insolvent, that fact alone would not exempt him from performing the alimony decree providing he still has the ability to earn money which will put him in a position to pay. Therefore it would have been proper to inquire into defendant’s earning capacity and to fix his status and liability accordingly.

It is again urged that complainant’s alleged lapse from virtuous conduct deprives her of any further right to alimony from defendant; but with this contention we cannot agree. Cole v. Cole, 142 Ill. 19, is cited to sustain this contention; and while language may be found in the opinions so indicating, it is clearly obiter dicta, as the opinion says regarding this phase of the case, “But there is no such case made by this petition.” On the other hand, there is other language in the Cole opinion which destroys defendant’s contention in this regard, for Mrs. Cole was not deprived of alimony notwithstanding her moral conduct subsequent to the decree was attacked. The court said that the allowance should not be taken away “though her conduct be flagrant” — meaning that her conduct was unchaste. We think the governing rule is as stated in Forrest v. Forrest, 3 Bosw. (N. Y.) 661, where the court said:

“Whatever duty the plaintiff, after her divorce, owed to the community in which she lived to lead a pure and virtuous life, she owed no duty to the defendant other or greater than she owed to any other member of that community. By her marriage and subsequent divorce, she acquired a right to her suitable allowance, and * * * her subsequent misconduct, if she was guilty, would not, I think, have forfeited it, and for the obvious reason that she would not have violated any right of her late husband, however much she outraged the moral sense of the community.”

To hold otherwise might tempt a divorced woman to stray from virtue’s path. Stanfield v. Stanfield, 22 Okla. 574; Cross v. Cross, 63 N. H. 444.

The decree appealed from is reversed.

Reversed.


author: Mr. Justice Dever

text:
    John Chylewski, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 23,529.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded with directions.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Petition of mandamus by John Chylewski, petitioner, against City of Chicago, respondent, to compel respondent to restore petitioner to a position in the police department of the City of Chicago as patrolman. From a judgment in petitioner’s favor, respondent brings error.
    Abstract of the Decision.
    1. Evidence, § 10

       — what not judicially noticed. Courts will not take judicial notice of the provisions of municipal ordinances, and the duty is imposed' upon persons relying on such ordinances to allege and prove them.
    2. Civil service, § 28* — when patrolman guilty of laches in seeking reinstatement. One seeking reinstatement by mandamus to the office of police patrolman from which he has been discharged is guilty of laches where he delays seeking relief for more than 5 years.
    Samuel A. Ettelson, for plaintiff in error; Roy S. Gaskill, 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 Dever

delivered the opinion of the court.


text:
    Adam Guthorle, Appellee, v. Chicago Railways Company and Chicago City Railway Company, Appellants.
    Gen. No. 23,794.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed June 10, 1918.
    Rehearing denied June 24, 1918.
    Statement of the Case.
    Action by Adam Guthorle, plaintiff, against Chicago Railways Company, Chicago City Railway Company and Chicago Surface Lines, defendants, to recover for personal injuries sustained while attempting to board a street car. The suit was dismissed as to defendant Chicago Surface Lines. From a judgment for plaintiff for $5,000, defendants appeal.
    Abstract of the Decision.
    1. Cabbiebs, § 486

       — When instruction in action hy passenger for personal injuries received While hoarding street car is erroneous. In an action against a street railroad company to recover damages for personal injuries sustained while plaintiff was attempting to board one of defendants’ cars, owing to the sudden starting thereof, an instruction that if plaintiff got on the car or was in the act of boarding the same while it was standing still, it became the duty of defendants to do all that human care, vigilance and foresight could reasonably do to prevent an accident to plaintiff while he was riding on said car or going upon the same while it was standing still, and if defendants failed to use such care and diligence and thereby injury befell plaintiff he could not recover, was erroneous as inapplicable to the pleadings where the declaration charged a negligent injury while plaintiff was in the act of getting on the rear end of the car.
    2. Negligence, § 221* — When instruction is erroneous. To instruct the jury, in a negligence action, with reference to a failure to perform a duty, a breach of which is not charged in the declaration, is error.
    3. Cabbiebs, § 486* — When instruction in action for personal injuries received hy passenger attempting to hoard street car is erroneous. In an action to recover for personal injuries sustained as the result of the sudden starting of defendants’ street car while plaintiff was attempting to board it, an instruction that if plaintiff boarded the car safely and he was caused to fall because of the manner in which the car was operated around the curve, and not because of the manner in which it was started, or operated, while he was boarding it, then the verdict must' be not guilty, was erroneous as inapplicable to the pleadings where the declaration charged a negligent injury while plaintiff was in the act of getting on the rear end of the car.

      Busby, Weber & Miller, Weymouth Kirkland and Arthur J. Donovan, for appellants; John R. Guilliams, of counsel.
    George Peirshing, for appellee.

      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 Dever

delivered the opinion of the court.

4. Carriers, § 456 — what constitutes material variance in action by street car passenger for personal injuries. Where a declaration, in an action against a street railroad for personal injuries sustained by a passenger, charges an injury while plaintiff was attempting to get on the rear end of one of defendants’ street cars, there can be no recovery under proof of an injury due to negligence of defendants causing a fall from the car after it had started and plaintiff was safely thereon.

5. Instructions, § 7* — necessity of accuracy in. In a negligence action where the evidence is very close, the jury should be accurately instructed.

6. Damages, § 200* — when instruction on in negligence action is erroneous. In a negligence action, an instruction that in estimating damages the jury were to consider all the facts and circumstances as shown by the evidence as to the nature and extent of plaintiff’s physical injuries, his suffering in body, if any, resulting from such physical injuries and also such future suffering and loss of health, if any, he may have sustained or would sustain by reason of such injuries, his loss of time and inability to work, if any, resulting from such injuries, was erroneous because not confining the damages to such injuries as were caused by the accident.


text:
    South Park Commissioners, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 23,890.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Parks and boulevards, § 12

       — when agreement as to construction and operation of street railroad lines over boulevard intersections not disturbed. Where a street railway company and a corporation having control over the boulevards of a city have agreed upon the terms upon which the former’s lines are to be constructed and operated at the intersection of certain streets with certain boulevards, the courts will not interfere unless it appears that the execution of the agreement was procured by duress or unless the terms and restrictions imposed on the use of such places are manifestly so unreasonable as to shock one’s sense of justice and fairness.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed June 10, 1918.
    Petition for rehearing stricken June 24, 1918.
    Statement of the Case.
    Action by South Park Commissioners, a corporation, plaintiff, against Chicago City Railway Company, defendant, to recover the cost of paving and repairing the intersections of certain streets and boulevards. From a judgment in its favor for $1,857.20, plaintiff appeals and defendant assigns cross error.
    West & Eckhart, for appellant.
    Busby, Weber & Miller, for appellee; Harry P. Weber and George W. Miller, of counsel.

      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.

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Parks and boulevards, § Vi — mature of control of South Park Commissioners over boulevards. The control of the South Park Commissioners over the boulevards is the same as that of the City of Chicago over the streets and other public places in the city.

3. Parks and boulevards, § 12* — what is right of street railroads to use boulevards under control of park commissioners. A street railway company has no right under the law to occupy and use the intersections of streets and boulevards under the control of the South Park Commissioners in the City of Chicago in disregard of such reasonable restrictions as the South Park Commissioners may impose.

4. Parks and boulevards, § 6* — what is nature of City of Chicago and South Park Commissioners. Both the City of Chicago and the South Park Commissioners are municipal corporations created by the sovereign power of the State for the purpose, inter alia, of controlling and governing the use of streets, highways and public places in the interest of the whole people.

5. Parks and boulevards, § 12* — what is jurisdiction of City of Chicago and South Park Commissioners over and duty as to intersecting highways controlled by each. Where highways under the exclusive control of the City of Chicago and of the South Park Commissioners, respectively, intersect each other, the control of such intersection resides within the joint jurisdiction of such corporations, and the duty of each is so to exercise its jurisdiction as not to interfere unreasonably with the legislature’s purpose in placing such control in their hands separately.

6. Parks and boulevards, § 12* — when park commissioners may prevent use of boulevard intersections by street railroad. Even where no valid contract ordinance is involved, the South Park Commissioners have the right, where a street railway company refuses to comply with reasonable restrictions, to prevent the company’s use of boulevard intersections under the commissioners’ jurisdiction.

7. Parks and boulevards, $ 12* — what is power of city and park commission as to regulation of street and boulevard intersections. Where a city and a park commission have the joint control and management of the intersections of streets and boulevards, each has the power, even without consent, to regulate the use of such intersections.

8. Parks and boulevards, § 12* — when assumed that contract as to use of boulevard intersections by street railroad is reasonable. Where the restrictions as to the use of boulevards by a street railway company at a point where they intersect streets are regulated by the conditions of a contract between the company and the park commission having jurisdiction of the boulevards, the courts will assume, in the absence of very clear evidence to the contrary, that the provisions of the contract are reasonable.

9. Parks and boulevards, § 12 — when ordinance requiring paving and maintenance of boulevard intersections by street railroad is not ultra vires. An agreement, embodied in an ordinance, between a street railway company and a park commission having control of boulevards of a city whereby the former, as a condition of the operation of its lines across the intersection of the boulevards and certain streets, agrees to pave and maintain in repair certain parts of the intersection, is not ultra vires as regards either party.

10. Parks and boulevards, § 12* — when street railroad not required to assent to conditions imposed upon crossing boulevards. A street railway company is not required to assent to unreasonable conditions or restrictions imposed by a park commission controlling the boulevards in a city upon its crossing the boulevards with its lines.

11. Parks and boulevards, § 12* — when ordinance as to repair and maintenance of boulevard intersections by street railroad is reasonable and based on sufficient consideration. An agreement by a street railway company with a park commission having control of the boulevards of a city to pave and repair such boulevards at their intersection of certain streets as a condition of the operation of its lines across such boulevards, such agreement being contained in an ordinance which it had accepted and which had been acted upon by both parties for some years, held not unreasonable and to be based upon a sufficient consideration.

12. Parks and boulevards, § 12* — when liability of street railroad to pave and repair boulevard intersections not released. Obligations assumed by a street railway company to a park commission, constituting a separate municipality, with regard to the paving and repair of boulevard intersections crossed by its lines are not released by subsequent ordinances of the city in which such boulevards are located.


text:
    Charles B. Nelson, Appellee, v. Oscar Brodfuehrer et al., on appeal of Oscar Brodfuehrer, Appellant.
    Gen. No. 23,976.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Equity, § 271

       — when verification of hill is sufficient. A bill of complaint which is verified by complainant himself and also by his agent is sufficiently verified even though complainant’s verification was, in compliance with an order of court, attached to the bill after it was filed.

      Interlocutory appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court
    Affirmed.
    Opinion filed June 10, 1918.
    Rehearing denied June 24, 1918.
    Statement of the Case.
    Bill of complaint by Charles B. Nelson, complainant, which charged that he had recovered a judgment against the defendant, Oscar Brodfuehrer, for the sum of $265; that an execution had been issued and returned nulla bona; that said defendant was the owner of real estate, or of an interest therein, and of certain personal property; that the wife of defendant, who was also made a party defendant, held legal title to the property which was in fact the property of defendant. The bill sought discovery of the defendants, who filed answers denying in general terms the material allegations of the bill. On a preliminary hearing the court ordered the appointment of a receiver, upon the complainant and receiver giving bonds in accordance with the statute. From this order defendant Brodfuehrer appeals.
    William Slack, for appellant.
    B. M. Shaffner, for appellee.

      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 Dever

delivered the opinion of the court.

2. Appeal and. ebbob, § 432 — when objection as to verification and signing of bill may not be raised. The objection that a bill of complaint was unsigned when verified by complainant’s agent and when verified by complainant, the latter verification being attached in accordance with an order of court, after the bill was filed, will not avail where the signature of complainant appears on the bill and it does not appear from the abstract of the record that any objection was made on this ground in the trial court and there is nothing to show when the bill was signed, other than the order to attach the verification.

3. Receivers, § 10* — what is effect of sworn answer denying allegations of bill on right to appoint. That the sworn answer filed to a creditor’s bill which seeks a discovery of the assets and property of a defendant denies definitely all the material allegations of fact of the bill does not render the court powerless to enter an interlocutory order appointing a receiver to take possession of defendant’s exempt assets pending the determination of the issues by the master and the court and require that it dismiss the bill.

4. Receivers, § 12* — when right to act becomes complete. Where the bonds of a receiver and of the complainant required by the interlocutory order appointing the receiver are filed, the receiver’s right to act becomes complete even though the complainant’s bond is not approved until after the approval of the receiver’s bond.


text:
    Edward Steer, Appellee, v. Julius Oppenheimer, trading as J. Oppenheimer & Company, Appellant.
    Gen. No. 23,997.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Shebidan E. Fby, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed June 10, 1918.
    Rehearing denied June 24, 1918.
    Statement of the Case.
    Action by Edward Steer, plaintiff, against Julius Oppenheimer, trading as J. Oppenheimer & Company, defendant, to recover rent for the use of premises. From a judgment for plaintiff for $489.06, defendant appeals.
    Abstract of the Decision.
    1. Landlord and tenant, § 456

       — what constitutes use of premises by tenant. In an action to recover rent, the occupation of the premises by leaving therein articles ■ which, while not defendant’s property, had been loaned to him by the owners, held to be a use of the premises for his benefit.
    2. Landlord and tenant, § 456* — when occupancy of premises shown. In an action for the rent of premises, where the defense is that the premises had been abandoned, evidence that defendant sublet the premises after the date of the alleged abandonment and received the rental therefor is sufficient to show his occupancy.
    3. Landlord and tenant, § 323* — when exclusion of deed to show transfer of premises to oumer by tenant proper. In an action for rent, evidence held insufficient to show that defendant had surrendered possession to the owner of the fee, and the exclusion of a deed claimed to show the transfer to such alleged owner held proper.
    4. Interest, § 23* — when allowed for delay. In an action for rent where it appears that the refusal to pay was for the sole purpose of delaying or defeating a just claim, plaintiff will be allowed interest on his claim.
    Lee J. Frank and Mary Lee Colbert, for appellant.
    Brown, Brown & Brown, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


author: Mr.- Justice Dever

text:
    George Hutton, Appellee, v. Albert Miller and E. P. Miller, trading as Albert Miller & Company, Appellants.
    Gen. No. 24,013.
    (Not to be reported in full.)
    Abstract of the Decision.
    Principal and agent, § 113

       — when principal may recover proceeds of sale of property from person procuring property from agent. In an action to recover for goods sold by a broker, where it appears that the plaintiff shipped the goods through his agent, that the latter, of his own motion, turned over the bills of lading, which were made out to plaintiff, to a third person who forwarded them to defendant, that when defendant attempted to credit such third person’s account with the proceeds of the sale of the goods, the latter notified defendant that the goods were plaintiff’s property and that defendant knew that such third person frequently acted as agent for others, held that plaintiff was entitled to recover the proceeds of the sale of the property.
    Appeal from the Municipal Court of Chicago; the Hem. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Action by George Hutton, plaintiff, against Albert Miller and E. P. Miller, copartners, trading as Albert Miller & Company, defendants, for goods sold and delivered. From a judgment for plaintiff for $198.73, defendants appeal.
    Teller & Pennish, for appellants.
    W. K. Pattison, for appellee; Douglas C. Gregg, of counsel.

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

   Mr.- Justice Dever

delivered the opinion of the court.


text:
    Kathryn J. McHale, Plaintiff in Error, v. Martin J. McHale, Defendant in Error.
    Gen. No. 24,050.
    (Not to The reported in full.)
    Error to the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in this court at the March term, 1918. Writ of error dismissed. Certiorari denied by Supreme Court (making opinion final).
    Opinion filed June 10, 1918.
    Statement of the Case.
    Bill for divorce by Kathryn J. McHale, complainant, against Martin J. McHale, defendant. The bill was filed on the 4th day of October, 1915. The cause was tried before a jury and on November 16, 1917, the jury rendered a verdict in which it found the complainant not guilty of certain charges made against her in a supplemental cross-bill filed by defendant, and found defendant guilty of extreme and repeated cruelty towards complainant and not guilty as to certain other charges made against him in the bill. The record discloses that a decree had been entered in the cause in favor of complainant on February 10,1916. On March 2, 1916, the court entered an order in the following form:
    “On motion of solicitor for defendant, motion to vacate and set aside decree continued to March 8, 1916.”
    The decree of February 10, 1916, was vacated March 20, 1916. On November 26, 1917, the court, on motion of defendant, set aside the verdict of the jury entered November 16, 1917, and ordered a new trial of the cause.
    To reverse the order setting aside the decree of February 10, 1916, complainant prosecutes this writ of error.
    Edward J. Kelley, for plaintiff in error.

      Abstract of the Decision.
    1. Judgment, § 298

       — when may he vacated, altered or amended. A trial court has no power to vacate, alter or amend its decree, except in matters of form, on a motion entered at a term subsequent to that at which the decree was entered.
    2. Judgment, § 296* — when motion to vacate made during term. Order of court held to show that a motion to vacate a decree was made during the term of the trial court at which it was entered.
    3. Appeal and error, § 1289* — when assumed that rules of trial court were complied with. In the absence of affirmative proof, the Appellate Court may assume that the rules of the trial court as to the manner of making motions not of course were complied with.
    4. Judgment, § 279* — what is notice of pendency of motion to vacate. The entry of a motion to continue a motion to vacate a decree is sufficient notice that the latter motion is pending and undisposed of.
    5. New trial, § 125* — when action of trial court in granting not disturbed. A court of review will interfere with the trial court’s action in granting a new trial only where it appears that a manifest injustice has been done.
    Jarvis A. Blume, for defendant in error.

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

   Mr. Justice Dever

delivered the opinion of the court.


author: Mr. Justice McSurely

text:
    The People of the State of Illinois, Defendant in Error, v. William O’Dowd, Plaintiff in Error.
    Gen. No. 23,505.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Larceny, § 41

       — when finding as to value of property is necessary. Whenever the measure or kind of punishment is dependent on the value of what has been taken, the court or jury, as the case may be, must find the value as part of the verdict or finding.
    2. Larceny, § 41* — when finding J>y court as to guilt is insufficient. On an information for larceny, a finding by the court that defendant is guilty “in manner and form as charged in the information,” without finding the value of the goods, is insufficient.
    Error to the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Information for larceny by the People of the State of Illinois, plaintiff, against William 0 ’Dowd, defendant. To reverse a judgment of guilty, defendant prosecutes this writ of error.
    George W. Blackwell, for plaintiff in error.
    Maclay Hoyne, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Harry S. Mecartney, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 23,935.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1733

       — when claim for interest on awards against city in condemnation proceedings is res judicata. In an action to recover interest on awards against a city in condemnation proceedings for local improvements, plaintiff’s claim to interest held to have been established by the decision of the Supreme Court in an action between the parties to determine his right to such awards (Mecartney v. City of Chicago, 273 Ill. 276), and to be res judicata under that decision.

      Error to the Circuit Court of Cook county; the Hon. Oscar M. Tobrison, Judge, presiding. Heard in this court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Action by Harry S. Mecartney, plaintiff, against the City of Chicago, defendant. The facts and issues involved are fully stated in City of Chicago v. Thomasson, 259 Ill. 322, and Mecartney v. City of Chicago, 273 Ill. 276. To reverse a judgment for plaintiff for $20,442.41 interest on awards heretofore recovered against defendant (273 Ill. 276), the latter prosecutes this writ of error.
    Samuel A. Ettelson, for plaintiff in error; Harry F. Atwood, Albert L. Green, Howard F. Bishop and Otto W. Ulrich, of counsel.
    Enoch J. Price, 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 McSurely

delivered the opinion of the court.

2. Limitation of actions, § 121 — when request for leave to file plea is too late. Refusal to permit the filing of a plea setting up the statute of limitations is not error where leave to file it is first sought after trial and review and remandment by the Supremé Court.

3. Limitation of actions, § 106* — when refusal to allow filing of plea is not error. Refusal to permit the filing of a plea setting up the statute of limitations is not error where, even if the plea should be sustained, it would not end the litigation, but would leave open to plaintiff the remedy of assumpsit or of mandamus.

4. Appeat. and ebbob, § 1725* — what matters deemed adjudicated on former appeal. The rule is that not only those matters which are presented for determination, but also those which could have been presented, shall be deemed to have been adjudicated by the decision of the Supreme Court on a former appeal.


text:
    Benjamin P. Birch, Defendant in Error, v. City of Chicago et al., Plaintiffs in Error.
    Gen. No. 23,941.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. John J. Gibbons, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Petition by Benjamin P. Birch, against the City of Chicago and others, defendants, for a writ of mandamus to compel the restoration of his name to the pay roll of patrolman in the police department of the City of Chicago. To reverse a judgment that the writ issue, defendants prosecute this writ of error.
    Samuel A. Ettelson, for plaintiffs in error; Roy S. Gaskill, of counsel.

      Abstract of the Decision.
    Civil service, § 27

       — what must he shown to warrant issuance of writ to compel restoration to office. One seeking a writ of mandamus to compel his restoration to a municipal office must show the legal existence of the office sought, and if it does not appear that there is an ordinance creating the office, the writ will not issue.
    Allen B. Chilcoat and Robert D. Melick, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Albert Macrae, Defendant in Error, v. Ambrose J. Krier, Plaintiff in Error.
    Gen. No. 23,995.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John P. Haas, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Action by Albert Macrae, plaintiff, against Ambrose J. Krier, defendant, on a promissory note. To reverse a judgment for plaintiff for $200, defendant prosecutes this writ of error.
    George L. Schein, for plaintiff in error.
    Fred D. Jackson, for defendant in error.

      Abstract of the Decision.
    1. Bills and notes, § 334* — mho must bring action on note. An action on a promissory note must be brought in the name of the holder of the legal title.
    2. Bills and notes, § 422* — when necessary to introduce note in evidence. Where, in an action on a promissory note, defendant asserts fraud in the execution of the note, the note itself must be introduced in evidence.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Julius Fox, Appellee, v. New York Life Insurance Company, Appellant.
    Gen. No. 24,010.
    Insurance, § 141

       — when life policy takes effect from date of application. Where the application for a policy of life insurance provides that, “unless otherwise agreed in writing,” the policy shall relate back and take effect as of the date of the application, the delivery and acceptance of the policy does not create a new agreement between the parties as to the date the policy takes effect, even though the policy itself bears a different date and contains a provision for the payment of annual premiums on that day each year, and also that after its delivery and acceptance the policy shall take effect as of such latter date, and especially is this true where the policy is accompanied by a blank form of request for the change of the policy’s taking effect from the date of the application to the date of the policy, which request is not signed by the insured.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed June 10, 1918.
    Hamlin & Topliff, for appellant; James H. McIntosh, of counsel.

      Samuel ft. Futransky, for appellee; P. B. Smith, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff was the beneficiary in a life insurance policy issued by defendant upon the life of plaintiff’s wife, Bessie Fox. He brought suit and upon trial had judgment for $500, which defendant seeks to have reversed.

The insured came to her death on December 22, 1915, by suicide, and defendant asserts that by virtue of a clause in the policy it is relieved from payment “in the event of self-destruction during the first insurance year.”

"What was the ‘first insurance year’ ’ ? This depends upon the date thé policy began to take effect. Plaintiff says this was December 18, 1914, which would make the first insurance year expire some days prior to the date of the suicide of the insured. To support plaintiff’s contention there is in evidence the written application of the insured, attached to and made a part of the policy, which contains this provision:

“I agree as follows: 1. That the insurance hereby applied for shall not take effect unless the first premium is paid and the policy is delivered to and received by me during my lifetime and good health, and that unless otherwise agreed in writing, the policy shall then relate back to and take effect as of the date of this application; 2 * * *.
“Dated at Chicago this 18th day of Dec. 1914.
(Signed) Bessie Fox.”

The defendant asserts that the policy began to take effect on January 18, 1915, which would make the date of the suicide of the insured fall within the first insurance year, and hence relieve defendant of payment. To support this defense the insurance policy is exhibited, dated January 18,1915, and providing for armnal premiums for periods from January 18th in each year to the same date in the following year for 20 years. There is also the" provision that ‘ ‘ after its delivery to and receipt by the Insured this Policy takes effect as of the Eighteenth day of January Nineteen Hundred and fifteen.”

It is contended that by the delivery of the policy to the insured and its acceptance there was created a new agreement between the parties as to the date the policy took effect, which superseded the date named in the application and which was in pursuance of the provision therein that the policy should be effective as of the date of the application “unless otherwise agreed in writing.” "We do not agree with this contention. The application contemplated that its date should stand unless the parties in writing agreed to some other date. This contemplated a writing made by both parties, and the mere delivery of the policy to the insured and its acceptance does not meet the requirement that the change in date must be evidenced by the writing of both parties.

This view is strengthened by the evidence, properly admitted, that defendant sent to the insured with the policy a writing which referred to the provision of the application with reference to the change of date of the taking effect of the policy, and contained a form of request as follows:

“I hereby request, as an amendment to my application for insurance dated the 18th day of December, 191..., that any policy written thereon shall take effect as of the 18th day of January, 1915, instead of on the date of said application, as provided therein.
Witness...................”

The evidence is that this request was not signed by the insured. We have, therefore, the construction of the defendant, upon its own application, that a change of date from the date of .the application must be by the written consent of the insured; this written consent was not obtained. It follows that the parties not having otherwise agreed in writing, the provisions of the application control, and the policy began to take effect on December 18, 1914, which would bring the termination of the first year of insurance at a time prior to the date of the suicide of the insured, and hence render inoperative the provision of the policy relating to such a contingency.

We hold that the judgment is right and it is affirmed.

Affirmed.


text:
    Fred Schmidt et al., Appellants, v. Edward Schmidt, Executor, Appellee.
    Gen. No. 24,023.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Bill for partition by Fred Schmidt and others, complainants, against Edward Schmidt, individually and as executor of the estate of Herman Schmidt, deceased, defendant. From a decree determining that a bequest for $6,000 to defendant was a charge upon the realty, complainants appeal.
    See also, Schmidt v. Schmidt, 277 Ill. 191, and 209 Ill. App. 146.
    Isidor Plotke, for appellants.
    Felix J. Griffen, for appellee; Alonzo M. Griffen, of counsel.

      Abstract of the Decision.
    1. Wills, § 476

       — when legacies are charges on realty. As a general rule, legacies are not charges upon realty unless expressly or impliedly made so hy the terms of the will.
    2. Wills, § 476* — when intention that legacy he charge on realty will prevail. If it was the intention of the testator that a legacy should he a charge upon the realty, that intention will prevail, although it is not shown in express words, since it may be implied from the whole will taken together.
    3. Wills, § 478* — when legacy is charge on realty. A pecuniary legacy held a charge upon the realty where the will contained a general residuary clause covering all of the remainder of the testator’s property.

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

   Mr. Justice McSurely

delivered the opinion of the court.


author: Mb. Justice McSurely

text:
    Mattie S. Hunt, Defendant in Error, v. Thomas M. Hunt, Plaintiff in Error.
    Gen. No. 24,042.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. George Kersten, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded with directions.
    Opinion filed June 10, 1918.
    Statement of the Case.
    Bill for divorce by Mattie S. Hunt, complainant, against Thomas M. Hunt, defendant. From a decree for complainant, defendant brings error.
    Adler, Lederer & Beck, for plaintiff in error.
    No appearance for defendant in error.

      Abstract of the Decision.
    1. Divobce, § 66

       — what necessary to render defendant in default after amendment of hill. Where complainant’s original bill was for separate maintenance and thereafter an amended bill was filed seeking a divorce, proper practice requires a rule upon defendant to plead to the amended bill before he could be in default.
    2. Divobce, § 12* — when cruelty of husband not shown. On a bill for divorce on the ground of extreme and repeated cruelty, testimony by complainant that ever since their marriage defendant had been guilty of excessive sexual intercourse is insufficient to support the charge of cruelty, the testimony of a doctor having been to the effect that he could not say that it affected complainant’s health.
    3. Divobce, § 16* — what constitutes condonation. The offense of extreme and repeated cruelty asserted as ground for divorce, if shown by complainant’s testimony that defendant was guilty of excessive sexual intercourse ever since their marriage, is condoned where the proof shows that the parties lived together for 16 years.

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

   Mb. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Barnes

text:
    City of Weatherford, Appellant, v. John Nuveen, trading as John Nuveen & Company, Bankers, Appellee.
    Gen. No. 23,544.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Mekbitt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 14, 1918.
    Statement of the Case.
    Action in assumpsit by the City of Weatherford, a municipality of the State of Oklahoma, plaintiff, against John Nuveen, trading as John Nuveen & Company, bankers, defendant, for breach of contract to purchase municipal bonds. From a judgment for defendant on a plea of res ad judicata, plaintiff appeals.
    Abstract of the Decision.
    1. Judgment, § 417

       — what is on merits operating as bar to subsequent suit. A judgment on a general demurrer is a judgment on the merits and a bar to a subsequent suit or demand, and is equally conclusive by way of estoppel as a verdict finding the same facts followed by a judgment on such verdict.
    2. Judgment, § 691* — when parol evidence is admissible where former recovery is relied upon as bar. While parol evidence is inadmissible to contradict a record, when a former recovery is relied upon as a bar, parol evidence not contradictory of the record may, in case of doubt, be introduced to show what was included within and investigated on the trial of the issue.
    3. Judgment, § 691* — when parol evidence is admissible to explain record of decision on "demurrer.” Where a judgment on the merits on a general demurrer was pleaded in bar, as res adjudicata and both a general and several special demurrers were interposed in the former action, a record reciting that “said demurrer be and is hereby sustained” and that “the demurrers heretofore filed herein stand to the declaration as amended” is ambiguous as not showing whether the order referred to the general or the special demurrers, and parol evidence of the trial judge is admissible as to what was actually argued, considered and decided in sustaining “said demurrer.”
    Weldon Webster and Lloyd S. Bailey, for appellant.
    Busby, Weber & Miller, for appellee; Harry P. Weber and G-eorge W. Miller, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    John Conners, Appellee, v. Gertrude Wagner et al., on appeal of Maud Guettrich et al., Appellants.
    Gen. No. 23,568.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

       — when statement of claim is insufficient in action try tenant against landlord for personal injuries. A statement of claim, in an action by a tenant against his landlord for personal injuries caused by a fall from an unrailed, stairway, alleging that it was the duty of defendant to keep the premises in repair, but alleging no agreement on the part of defendant to repair, and no facts from which a duty to repair could arise, is insufficient to state a cause of action, the allegation of a duty to repair being a mere conclusion.

      Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed June 14, 1918.
    Statement of the Case.
    Action by John Conners, plaintiff, against Gertrude Wagner, Maud Guettrich, William Guettrich and L. Hisgen, defendants, to recover damages for personal injuries caused by the alleged failure to keep demised premises in repair. From a judgment for $450 in favor of plaintiff, defendants with the exception of Gertrude Wagner, who was not served with summons, appeal.
    Henry J. and Charles Aaron, for appellants; William H. Holly, of counsel.
    E. M. Seymour, for appellee.

      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. Presiding Justice Barnes

delivered the opinion of the court.

2. Municipal Court of Chicago, § 13 — when judgment on insufficient statement of claim not validated. Where a statement of claim was insufficient to state a cause of action, a judgment thereon for plaintiff after a trial had in the absence of defendants could not be given vitality by the filing, with leave of court, of an amended statement of claim after the entry of judgment.

3. Municipal Court of Chicago, § 13* — what amendment of statement of claim not allowed after judgment. Where the original statement of claim was insufficient to state a cause of action, an amendment is equivalent to setting up a new cause .of action and is not allowable after judgment.

4. Pleadings, § 248* — what amendments permitted after judgment. Amendments of pleadings after judgment are permitted by statute for defects or imperfections in matters of form, but not as to substance.