text:
    The People of the State of Illinois ex rel. Harry G. Warner and Josephine E. Warner, Defendant in Error, v. Cora Wethel, Plaintiff in Error.
    Gen. No. 22,295.
    1. Adoption, § 8

      —who not necessary party to petition. Since the Adoption Act, sec. 2 (J. & A. If 194), did not, prior to the amendment of 1907, require that the child sought to he adopted be made a party to the petition, the provision of the amended section that “all persons so named in the petition shall be made defendants” is not to be construed as requiring that the child be joined as defendant, thereby invalidating adoptions made since the passage of the amendment, since it must be assumed that had the Legislature intended to change the construction of the section in this respect, it would have made its purpose clear by explicit language, and would not have left it in any way uncertain.
    2. Courts, § 146*—how opinions construed. The language of the Supreme Court in rendering opinions is always to be construed in the light of the particular facts of the case in which it is used.
    3. Adoption, § 8*—when petition sufficient though residence of child’s parent not alleged. The Adoption Act, sec. 2 (J. & A. If 194), providing that “the petition shall also state the residences of such parties, so far as the same are known to the petitioner,” is complied with although the residence of the mother and sole surviving parent of a bastard child sought to be adopted is not expressly alleged, where the name of such parent is set out in the petition, with an allegation that she consented thereto, and where the court affirmatively finds, presumably on competent evidence properly received, that both mother and child resided with petitioners in Chicago at the time of the adoption, since it is jurisdictional facts which give a court jurisdiction, and not the manner in which they are stated.
    4. Adoption, § 8*—when petition sufficient as to stating cause for adoption. Although the Adoption Act, sec. 2 (J. & A. If 194), requires petitioner to “state one or more causes for adoption,” a petition is not fatally defective in stating “love and affection” as such a cause where the petition actually states sufficient causes for adoption within the meaning of the statute, but does not characterize them as such.
    5. Adoption, § 1*—nature of act. While the Adoption Act (J. & A. jf 193 et seq.) is in derogation of the common law in so far as judgments under it deprive parents of their natural rights to the custody of their children, it is on the other hand highly remedial and charitable in that it provides a method whereby children who would otherwise be the objects of public charity are suitably provided for by persons who assume a legal duty to do so.
    6. Adoption, § 1

      —how statute construed. Although in- order to sustain an adoption the provisions of the Adoption Act (J. & A. If 193 et seq.) must be substantially complied with, its construction should not be so narrow or technical as to invalidate proceedings where every material provision of the statute has been complied with.
    Tatlob, J., dissenting.
    Error to the Circuit Court of Cook county; the Hen. Osgar M. Tobrison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed November 15, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Mechem, Bangs & Harper, for plaintiff in error; Charles S. Cutting, of counsel.
    Dtmmitt C. Hutchins and Bobert H. Eberle, 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 Goodwin

delivered the opinion of the court.

Plaintiff in error seeks to reverse the judgment of the Circuit Court entered December 8th, 1915, in a habeas corpus proceeding giving custody of Vincent Harry Warner," an infant, to relators.

Plaintiff in error is the sole living natural parent of the infant involved in the case, who was bom out of wedlock, and was, at the time of the judgment, about the age of two years and eight months. Defendants in error, as relators, claimed the right to custody by virtue of a decree of adoption entered in the County Court of Cook county, December 26, 1913. Although plaintiff in error consented in writing to this decree of adoption she now insists that it is a nullity for the following reasons: First, because no summons was issued against the child or publication made for him; second, because the petition does not contain a statement of the residence of the mother; and third, because it does not set out a legal cause for adoption.

The contention that the infant himself is a necessary party to an adoption proceeding is based upon the second section of an act to revise the law in relation to the adoption of children, approved February 27, 1874, as amended by an act approved May 25, 1907. The portions of section 2 necessary to a determination of this question are as follows:

“2. Form of petition—notice to defendants—adoption notice.] § 2. The petition shall state one or more causes for adoption, the name, if known, the sex and the approximate age of the child sought to be adopted and if it is desired to change the name, the new name, and either the name, or that the name is unknown to petitioner (a) of the person having the custody of such child; and (b) of each of the parents or of the surviving parent of a legitimate child or of the mother of an illegitimate child; or (c) if it allege that both such parents are or that such mother is dead, then of the guardian if any of such child or (d) if it allege that both such parents are, or that such mother is dead and that no guardian of such child is known to petitioner, then, of a near relative, or that none such is known to petitioner; the petition shall also state the residences of such parties so far as the same are known to such petitioner. All persons so named in such petition shall be made defendants by name and shall be notified of such proceedings by summons if residents of this state in the same manner as is now or may hereafter be required in chancery proceedings by the laws of this state except only that the summons shall be made returnable at any time within twenty days after the date thereof. All persons, if any, who or whose names are stated in the petition to be unknown to petitioner shall be deemed and taken as defendants by the name or designation of ‘all whom it may concern:’ Provided, however, that in all cases where the peTsons or any of them hereinabove required to be made defendants shall have been deprived of the custody of the child sought to be adopted by a court of competent jurisdiction and such court in the order appointing a guardian of the person of such child shall have authorized such guardian to consent to the adoption of the child without (notice) to or assent by such person or persons, such person or persons need not be made defendants and no person other than such guardian need be made a defendant to such proceedings, and the consent by such guardian shall be sufficient to authorize the court before which the adoption proceedings are pending to enter a decree of adoption as hereinafter provided. The petition shall be verified by the affidavit of the petitioner.” (Hurd’s Rev. St. 1913, p. 34, J. & A. ¶ 194.)

The question immediately arises as to whether the words “all persons so named in such petition shall be made defendants” include the child. The original act in relation to the adoption of children, which remained in force from 1874 until it was amended in 1907, very clearly did not require the minor child to be made a defendant or to be.represented by a guardian ad litem. The court, therefore, must at the outset meet and determine the question of whether the amendment of 1907 was intended to change the public policy of the State in this regard. Some colpr for the contention that it was the intention of the Legislature to require the change to be made is found in the language contained in the body of section 2, which requires that the petition shall state the name of the child, and declares that “all persons so named in such petition shall be made defendants by name.” On the other hand, it is claimed that the grouping under letters (a), (b), (c) and (d) of parents and persons standing in loco parentis indicated that the persons so enumerated were the only ones intended to be made defendants. However, it seems to the court that the meaning of the words is made certain by the proviso “that in all cases where the persons or any of them hereinabove required to be made defendants shall have been deprived of the custody of the child sought to be adopted by a court of competent jurisdiction,” etc. This statement of circumstances under which “the persons or any of them hereinabove required to be made defendants” may be deprived of the custody of the child can have no other meaning than that all the persons required to be made defendants may be deprived of the custody of the child, and this, of course, necessarily excludes the child himself from the category of those required to be made defendants. We would not, of course, be justified in giving the language of the provision this restrictive effect which its literal sense logically requires, if an intention to make the child a necessary party was made apparent by language used in other portions of the statute or by the language of the statute as a whole. It is, moreover, to be noted that as the child had never been required to be made a party to adoption proceedings by the law as it existed prior to the amendment of 1907, it must be assumed that had the Legislature intended to make a radical change in this regard, it would have made its purpose clear by the use of clear and explicit language, and would not have left it in any way uncertain. The conclusion which the court has reached on this point is in harmony with the practical construction placed upon the act by court and counsel. For us now to place upon the act an interpretation which would invalidate a large portion, if not most, of the adoptions made in good faith during the past nine years, and so disinherit many who would otherwise be entitled to share in the estates of their adoptive parents, would, in the absence of language making such a ruling necessary, be, in pur opinion, an act of inexcusable injustice.

Counsel for appellant next contend that the failure of the petition to recite the residence of the mother of the child was fatal to the jurisdiction of the County -Court, because section 2 provides, “the petition shall also state the residences of such parties so far as the same are known to such petitioner.” The first case arising in Illinois in which the question of jurisdiction in adoption cases is discussed is Barnard v. Barnard, 119 Ill. 92, in which the mother appeared and consented to the adoption, but the father did not appear and no. allegation was made that he was dead or had abandoned the child. In support of the adoption the court said, at page 98:

“It is not important, here, to inquire,—this record coming before this court collaterally,—whether the County Court erred, simply, in decreeing as it did. The question is, did it have jurisdiction to make any decree in the matter. If it had jurisdiction to decree in the case, the decree, until reversed, however erroneous, merely, must stand. It will be observed the statute clearly gives the court power to decree as to the subject-matter, and the only question, therefore, is, whether the parties required by the statute to be before the court, in order that such a decree be rendered, were in fact before the court. The presumption, in the first instance, is, that the court had jurisdiction, unless it is apparent from the act itself that the court could not have had jurisdiction in any contingency, or unless the statute empowering the court to act requires the record to ■ affirmatively show, precedent to its decree, some fact which it fails to show.
******
“We have seen, the statute requires that the name of the father shall be stated, and that he consents to the adoption; but this is only in the event that he is alive, and has not abandoned the child, for, if he be _ dead, or, if he be alive and has abandoned the child, it is only necessary to state the name of the mother, and that she consents to the adoption. The fact of the father’s death or abandonment is not required to be affirmatively stated.”

This view of the matter, however, does not appear to be in harmony with the case of Watts v. Dull, 184 Ill. 86, in which the court said, at page 92:

“The petition, thus required by the act, is jurisdictional in its character; and the facts, which are required by the statute to give the court jurisdiction, must appear upon the face of the petition itself.”

At page 93, the court continues:

“Furthermore, section 2 of the act requires that the petition shall state ‘ the name and residence of the parents of the child, if known to the petitioner.’ The petition in the case at bar states that the father of the child was dead, but it does not state the name and residence of the mother of the child, although the latter appears from the petition to have been alive. Of course, the name and residence of the parents of the child are only to be stated, if they are known to the petitioner. Inasmuch as this petition does not state whether such name and residence were known to the petitioner or not, the question arises whether it will be presumed that such name and residence were unknown because there is no allegation on the subject. Under the general doctrine already announced, that everything will be presumed to be without the jurisdiction of the court, when proceeding under a special statute, which does not distinctly appear to be within it, it would seem that such presumption as to the name and residence being unknown would not be entertained, but that the petition, by omitting any allegation on the subject, is fatally defective.”

The court attempts, however, to distinguish the. Barnard case, supra, by saying, at page 94:

“It will be noted, however, that, in the Barnard case, the mother filed her written consent to the adoption of the child. Here, however, it does not appear that the mother of the plaintiff in error gave her consent to the adoption.”

While it is said in Watts v. Dull, supra, that the petition was fatally defective because the court could not indulge in any presumption that the name and residence of the father were unknown, it does not, of course, attempt to say that it would still remain fatally defective if that fact appeared otherwise of record; it merely said that the court could not indulge in such a presumption. Necessarily, if the court found that the father was dead or had abandoned his family, no presumption would be necessary in aid of the petition, for the petition would then state all the facts required to give the court jurisdiction. The language of the court is, of course, always to be construed in the light of the particular facts of the case in which it is used, and it is on that ground that Watts v. Dull may be harmonized with Flannigan v. Howard, 200 Ill. 396, where the petition for adoption failed to give the residence of the child’s parents. In the latter case, as in the case at bar, the petition complied with the requirement that the names of the parents of the adopted child be stated, and alleged that they consented to her adoption by the petitioner. The written consent gave the residence of the parents. Mr. Justice Cartwright, in delivering the opinion of the court, said, at page 400:

“There must be a substantial compliance with the provisions of the statute, but the construction of the statute should not be so narrow or technical as to invalidate proceedings where every material provision has been complied with. Every purpose of stating the place of residence of the parents was fully satisfied by the statement in the written consent, which was referred to in the petition and filed with it as a part of the application. The statute was substantially complied with. The court had jurisdiction over the petitioner, the plaintiff in error, who resided with petitioner in La Salle county, and the natural parents. All the jurisdictional facts appeared from the record of the County Court, and the order is not open to collateral attack in this proceeding. ’ ’

It will be noted in the case at bar that not only is the name of the sole parent of the adopted child given and allegation made that she consented to the adoption, but it appears also, as it did in Flannigan v. Howard, supra, that at the time of the adoption the sole parent and the child resided with the petitioners, and the court affirmatively found that the mother resided in the City of Chicago. If it is true that, as Mr. Justice Cartwright says, “Every purpose of stating the place of residence of the parents was fully satisfied by the statement in the written consent, which was referred to in the petition and filed with it as a part of the application,” it is equally true that every purpose of stating the place of residence of the parents is fully satisfied here by the finding of the court in regard to her residence. In Flannigan v. Howard, the statement in the consent that the parents resided in Lostant was unnecessary and immaterial as a part of the consent, and was of no probative force whatever; it might or it might not be true.

In the ease at bar, however, the residence of the sole parent is affirmatively found by the court, and presumably that finding was based upon competent evidence properly received. The cases cannot, in our opinion, be distinguished on the ground that the consent accompanied and was referred to in the petition for it was not made a part of the petition by reference or otherwise. The doctrine of the case, as stated by the learned justice, is that if “all the jurisdictional facts” appear “from the record of the county court the order is not open to collateral attack” and that if the place of residence of the parents is omitted from the petition, it will not deprive the court of jurisdiction if that fact appears otherwise of record, since “every purpose of stating the place of residence of, the parents” is thereby fully satisfied. This clearly is in harmony with reason, because it is jurisdictional facts which give a court jurisdiction, and not merely the manner in which they are stated, and this is particuiarly the case, where the sole party who could have objected to. the petition has consented to the adoption.

Counsel for appellant also contend that the petition is fatally defective because, while the statute requires it to state one or more causés for adoption, “love and affection” is not one of the causes therein enumerated. Counsel admit that this petition actually states matters which are “causes for adoption,” but say “they are not stated as causes for adoption.” This contention is clearly without merit.

In construing this statute it must, of course, be remembered that while it is in derogation of the common law so far as judgments entered under it deprive parents of their natural right to the custody of their children, it is, on the other hand, highly remedial and charitable in its purpose, in that it provides a method whereby children who would otherwise be the objects of public charity become the legal children and heirs of adopted parents who are able to give them suitable maintenance and education and who assume a duty to do so. It would be most unfortunate if so technical a construction should be given it as to render invalid adoptions in cases where all the essential facts appeared of record, although they might not be stated in the form or in the particular document mentioned in the statute. As innumerable adoptions have taken place since the decision of the court was handed down in Flannigan v. Howard, supra, to depart now from "the enlightened rule there laid down that “there must be a substantial compliance with the provisions of the statute, but the construction of the statute should not be so narrow or technical as to invalidate proceedings where every material provision has been complied with, ’ ’ would be to cause, without justification, obvious and unnecessary hardship.

For the reasons above stated, the judgment of the Circuit Court will be affirmed.

Affirmed.

Mr. Justice Taylor dissents.


source: Caselaw Access Project

author: Mr. Justice Goodwin

license: Public Domain

text:
    Evangelical Lutheran St. Matthews Congregation of Lemont, Illinois, Appellee, v. Rolland E. Bethards, sued as Rev. E. Bethard, Appellant.
    Gen. No. 22,740.
    (Not to he reported in full.)
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed.
    Opinion filed November 15, 1916.
    Statement of the Case.
    Bill in chancery hy the Evangelical Lutheran St. Matthews Congregation of Lemont, Illinois, complainant, against Holland E. Bethards, sued as Bev. E. Bethard, defendant, to restrain defendant from audibly performing any religious services in complainant’s cemetery. From an interlocutory order granting a preliminary injunction, defendant appeals.
    Herman Week and Jesse Wilcox, for appellant.
    Coburn & Bentley, for appellee.
    Abstract of the Decision.
    1. Trusts, § 198

      —when parties plaintiff deficient in suit for injunction hy trustees. On a hill by a religious corporation to restrain an individual from holding religious services in a cemetery belonging to complainants, a petition for an injunction is insufficient where the petitioners describe themselves as trustees, and where it does not appear from the petition that petitioners are a majority or all of such trustees, and petitioners are therefore not entitled to relief in their official capacity, since a minority of such trustees have no power to represent the rights of their cestui que trust without showing good and sufficient reasons therefor.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

2. Injunction, § 182 —when allegation in bill insufficient as conclusion of law. On a bill by a religious organization to restrain an individual from holding a certain sort of religious service in a cemetery belonging to the organization, where it appeared that a member of the organization had a permit issued by complainant to bury his family in the cemetery, an allegation in a petition for an injunction restraining defendant from conducting services in such cemetery on the death of such member, alleging that the permit was “subject to the rules and regulations of the congregation,” held insufficient to enable the court to determine the nature of the permit or the conditions attached to it, the quoted allegation being a mere conclusion of law.

3. Injunction, § 185*—when allegation of irreparable injury insufficient: Since the principle which lies at the foundation of the injunctive process of a court of equity is the inability of courts of law to afford adequate redress, it is not sufficient to entitle complainant to injunctive relief to allege irreparable damage, but he must aver facts from which, if true, the court can fairly draw that conclusion.

4. Injunction, § 181*—when prayer insufficient. A petition for an injunction is insufficient where the bill merely prays for an injunction “as above prayed,” but contains no other prayer for an injunction, or for any other relief, either specific or general.


author: Mr. Justice Taylor

text:
    La Salle Extension University, Appellee, v. Hamilton College of Law, Appellant.
    Gen. No. 21,369.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Weixs, Judge, presiding. Heard in the Branch Appellate Court at the Miarch term, 1915.
    Affirmed.
    Opinion filed November 15, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by La Salle Extension University, plaintiff, against the Hamilton College of Law, defendant, in the Municipal Court of Chicago, to recover on four promissory notes. To reverse a judgment for plaintiff for $2,099.63, defendant appeals.
    It appeared that defendant and a corporation called the Cree Publishing Company made a contract volving the performance to defendant of certain contractual duties in reference to a quantity of books, in consideration of which defendant gave to it certain notes. In order to be able to make the contract with defendant, the Cree Company arranged with parties named De Bower and Chapline to surrender, for a consideration, their exclusive rights of sale of the books in a certain territory, for which they were to receive half the profits of the contract with defendant. The maturity of the notes was arranged so that they became due successively, and defendant had the privilege of paying half of a note and renewing the balance for four months. The four original notes were indorsed by the Cree Company without recourse and delivered to De Bower and Chapline, who delivered them to plaintiff, the transaction being shortly after the date of the contract. De Bower and Chapline, who were president and vice president of plaintiff corporation, knew of the contract. Later two of the notes were presented by plaintiff to defendant, which paid part of one note, and gave two renewal notes for the balance. Before suit was brought the Cree Company went into bankruptcy, but not until nearly a year after the delivery of the notes to De Bower and Chapline. Defendant gave the Cree Company $18,000 in notes and paid about $6,200 on them. The notes were complete and regular on their face, and acquired in good faith, in the regular course of business and for a consideration.
    The contract provided for the delivery of 1,000 sets of the books to defendant, of which the Cree Company had delivered about 343 sets before bankruptcy.
    Rankin, Howard & Donnelly, for appellant.

      Newman, Poppenhusen & Stern, for appellee; Edward R. Johnston, of counsel.
    Abstract of the Decision.
    1. Bills and notes, § 50

      —when consideration sufficient. In an action to recover on promissory notes, the defense of no consideration is not available to defendant where the notes contain a recital that they were given “in consideration of the permission to go ahead and make the contract with the Hamilton College of Law,” it also appearing that the notes were given in pursuance of a contract for the sale of certain books, which contract could not be made until parties having the exclusive agency for the sale of the books in a certain territory had released their rights, which was the permission referred to.
    2. Bills and notes, § 259*—when failure of consideration no defense against hona fide holder. An indorsement in the usual course of business of notes regular on their face passes a good title to the indorsee although the notes were given in performance of an executory contract imposing certain duties on the payee in favor of the maker, of which contract the indorsee has notice, where at the time of the indorsement there has been no default in the performance of the contract, although later there is default, since in such case an indorsee is not bound to keep watch as to the performance of the contract.
    3. Bills and notes, § 479*—when alteration cannot he considered on appeal. In an action to recover on nates, the maker is estopped to object that the notes sued on have been materially altered after execution and delivery by adding the words and figures “with interest at 6%,” where the affidavit of merits admitted the making and signing of such notes, and where the objection was not made in the trial court.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Margerete Hengen, Appellee, v. Edward P. Skene, Appellant.
    Gen. No. 21,379.
    Appeal and error, § 1870

      —when merger of interlocutory order in final decree does not discharge appeal bond on former. Although in a technical, legal sense an interlocutory order for the payment of alimony pendente lite in a proceeding for separate maintenance is merged in a final decree granting permanent alimony, yet where as a prerequisite to the allowance of an appeal from the interlocutory order a bond is given conditioned to prosecute the appeal with effect or in the event of affirmance to pay the amount provided by the order, etc., the rights of the obligee against the surety are not affected by such final decree, rendered after the affirmance, although such final decree finds as a fact that no part of the sums provided by the order have been in fact paid, ascertains the amount due, and orders its payment forthwith, since as a practical matter, apart from legal fictions, the final decree merely supplements the interlocutory order, and does not vacate or suspend it, but leaves it unaltered, merely adding the right to an execution.
    Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed November 15, 1916.
    Archibald Cattell, for appellant; Clinton A. Stafford, of counsel.
    Manierre & Pratt, for appellee; Carl H. Zeiss, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.

On April 9, 1914, a suit in debt by appellee against appellant was begun in the Municipal Court of the City of Chicago. The suit was on an appeal bond, dated July 25, 1911, which bond (signed by Gustave B. Hen-gen as principal and Edward P. Skene as surety) was in the penal sum of $2,000, and was given to secure a decree for “the payment of one hundred and fifty dollars per month as alimony pendente lite and a decree for two hundred dollars, solicitors’ fees, said alimony being payable on the first day of each month hereafter until the further order of the court, the first instalment being payable on the first day of August, 1911, and the solicitors’ fees being payable on the 15th day of September, 1911.”

The condition of the bond was that, “If the said Gustave B. Hengen (principal in the bond) shall duly prosecute his said appeal with effect, and moreover pay the amount of the decree, interest, damages and costs rendered and to be rendered, against him in case the said decree shall be affirmed the obligation to be then void, otherwise to remain in full force and virtue.”

The case in the Municipal Court was tried on November 23, 1914, before the court without a jury, and on December 3, 1914, a judgment for $2,000 was entered in favor of the appellee.

The decree in the original case, from which an appeal to the Appellate Court of the First District of Illinois was taken, and in which case the bond in question was given, was affirmed by that court on October 9,1913. [182 Ill. App. 25.]

On June 24, 1914, a final decree was entered in the Circuit Court. The decree ordered the payment by Gustave B. Hengen (defendant in the separate maintenance suit) of $100 a month as permanent alimony beginning July 1, 1914, and until the further order of the court; the payment of $300 for suit money expended by Margerete Hengen (appellee); the payment of $1,200 as additional solicitors’ fees, to be paid on or before July 1,1914; and also found that no part of the alimony or solicitors’ fees awarded by the decretal order of July 14,1911, and which amounted to $5,450 had been paid; and decreed that Gustave B. Hengen pay to the appellee that amount forthwith.

The amount $5,450 includes all the alimony and solicitors’ fees arising by reason of the decree of July 14, 1911.

The obligation on Hengen to pay both temporary and permanent alimony arose as the result of two orders in the separate maintenance suit. On account of our methods of procedure, Hengen was allowed to appeal from the first order of July 14, 1911, but only on condition that, as a prerequisite, a bond was given. Accordingly, Hengen as principal and appellant as surety gave bond and therein bound themselves to the appellee, the obligation being either to succeed" in the appeal or to pay the amount due under the decree.

The appeal was tried, the decree was affirmed, and the obligation on Hengen and appellant to pay remains unfulfilled.

Appellant now contends, although he admits he has never paid what he agreed to pay, that the entry of the decree of June 24, 1914, in which the court finds the entire amount due appellee as alimony and solicitors’ fees pendente lite and decrees the same to be paid to appellee forthwith, entirely merges and extinguishes the decree of July 14, 1911 (the decree appealed from), and that the decree appealed from being extinguished, the appeal bond given to perfect that appeal thereby becomes of no effect and an action could not be maintained thereon against appellant as surety.

The decree of June 24, 1914, did not conflict with the ■order of July 14, 1911; it did not extinguish the rights arising by reason of the latter order, it, in truth, only emphasized them. It must be borne in mind that the concrete obligations in their present form arose by operation of law and not by the voluntary personal agreement of the parties themselves. The chancellor made the orders, not the parties. Certainly the app ellee is not to blame, nor to suffer because the court, in compliance with the law, pursued the conventional method of first ordering the payment of alimony pendente lite, and then, subsequently, in the final decree, fixing the amount that had then accrued, and decreeing, in addition thereto, permanent alimony.

In the instant case the court was at work determining the rights of the parties in the separate maintenance suit and had arrived at the conclusion that the appellee was entitled to a certain amount as alimony pendente lite and entered an order accordingly; then an appeal from this order was taken in medias res, as it were, a bond was given, the order was sustained in the Appellate Court, and the lower court then proceeded to conclude the litigation and entered a final decree.

Anomalous, indeed, would it be, if the surety could play fast and loose in such a way, and contend that he was bound by the interlocutory decree, but released the moment the court proceeded to end the litigation by entering a final decree.

The appellee has not been guilty of misrepresentation, nor concealment, nor fraud; nor any misfeasance, and the only change which has taken place in the status of either creditor, principal or surety is that the court on June 24, 1914, entered a further order or decree in the same case to the effect that not only is a certain amount of alimony pendente lite due, but, in addition, permanent alimony and certain solicitors’ fees and costs.

In a technical, legal sense, the order of June 14,1911, may be said to be merged in the decree of June 24, 1914, but in no way, legal or practical, can it be said to be extinguished.

Viewed as a practical matter (apart from legal fictions), the final decree merely supplemented the preliminary order. The order for the payment of temporary alimony remained unaltered; it was not vacated nor suspended. The final decree, in fact, merely added the right to an execution.

Many cases have been cited, but upon examination none of them is found to be apposite; they are cases where, in general, the creditor by some voluntary act has changed his contractual status with the principal or surety or both.

We are aware that the grounds of reversal which are urged upon this court were not raised in the lower court; but we have seen fit to consider the merits of the controversy, and on that ground we are of the opinion that the judgment of the lower court should be affirmed.

Affirmed.


text:
    Charles Kraatz et al., Appellees, v. Rinard Workman, Appellant.
    Gen. No. 21,410.
    (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 March term, 1915.
    Affirmed.
    Opinion filed November 15, 1916.
    Rehearing denied November 28, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action of forcible entry and detainer by Charles Kraatz et al., plaintiffs, against Kinard Workman, defendant, in the County Court of Cook county, to recover possession of land. From a judgment for plaintiffs, defendant appeals.
    The parties were adjoining landowners, and a fence was built forty or more years before the action was brought, which fence separated the land of the parties. The land sought to be recovered was on plaintiffs ’ side of the fence, and was about twenty-five feet wide at one end of the fence and ten feet wide at the other. The fence was originally of rails, which about twenty years before the action was brought was removed and a wire fence erected. Plaintiffs cultivated the land to the fence and were in obvious and continuous possession. Defendant, on purchasing his property in 1905, made a survey, in consequence of which he claimed title to the land sought to be recovered, and after notice to plaintiffs that he would remove the fence and re-erect it on what he claimed was the correct line, carried his threat into effect, against the protest of plaintiffs, who ordered defendant to desist. Defendant then took possession of the strip of land in question.
    George McMahon, for appellant.
    Thomas McEnbrny, for appellees.
    Abstract of the Decision.
    1. Fobcible entby and detained, § 24

      —when entry under elaim of right no defense. The invasion of land obviously in possession of another against the wish and protest of the owner, and the removal of fences and their re-erection in another place, constitutes a forcible .entry and will enable the owner to maintain an action of forcible entry and detainer, although defendant acted under a claim of right to the land.
    2. Fobcible entby and detainee, § 73*—what evidence inadmissible as defense. In actions of forcible entry and detainer, evidence of a paramount title in defendant is incompetent, the action being wholly statutory and involving only possessory rights, so that rights derived from a paramount title can only be claimed in ejectment or other appropriate proceeding.

      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 Taylor

delivered the opinion of the court.

- 3. Forcible entry and detainer, § 60 —when description of premises not materially defective. In an action of forcible entry and detainer, a description of the premises sought to be recovered as “a strip of land belonging to the east 40 acres taken off the east side of the north fraction of the northwest quarter of section nineteen (19),” held not materially defective where it appeared that all parties to the action knew exactly what property was intended to be designated.

4. Forcible entry and detainer, § 108*—what objection cannot be raised for first time on appeal. Objection that description of premises is defective cannot be raised for the first time on appeal.


text:
    C. Edgar Wallace, Appellee, v. Clara Amalia Meldahl and Alice Eline T. West, Individually and as Trustees, Appellants.
    Gen. No. 22,630.
    (Not to be reported in full.)
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed November 15, 1916.
    Rehearing denied November 29, 1916.
    Statement of the Case.
    Petition by C. Edgar Wallace against Clara Amalia Meldahl and Alice Eline T. West, respondents, both in their individual rights and as trustees, in the Superior Court of Cook county, for an interlocutory order restraining respondents from proceeding with certain other litigation in the courts of a foreign State pertaining to matters already involved in the litigation in the case in which the petition was filed. From an order granting the prayer of the petition, respondents appeal.
    The petition arose out of litigation between the same parties, one branch of which was taken to the Supreme Court in Meldahl v. Wallace, 270 Ill. 220, where a detailed statement of the facts and proceedings may be found. The litigation arose over a trust deed made by the mother of respondents and of petitioner’s wife, of certain real and personal property for the benefit of the daughters. Petitioner’s wife having died, the main question at issue was what equitable right petitioner had in the granted property. The Supreme Court held that he had a vested right both as administrator and as heir in such property as had vested in his deceased wife, and that the trial court erred in sustaining demurrers to his bill asserting such rights and praying for a partition, and in dismissing the bill.
    The petition recites that after the decision of the Supreme Court, respondent West instituted proceedings in the Circuit Court of Walworth county, Wisconsin, . mailing respondent Meldahl a defendant, and obtained an order appointing a commissioner to divide the same property now in the custody of the Superior Court of Cook county; that the commissioner reported, in effect, that he had made such a division; that said report was approved and that said ‘ ‘proceeding was commenced and conducted without any notice or knowledge on the part of your petitioner and without the consent of the court.”
    Adolph L. Benner and Charles E. Pope, for appellants; E. K. Smith, of counsel.
    James D. Wallace, William H. Gruver, William Karr Steele and Morse Ives, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

1. Injunction, § 159 —when jurisdiction sufficiently appears on petition for interlocutory restraining order. In proceedings in equity to determine the rights of parties in certain real and personal property, where one of the parties seeks by interlocutory order to restrain the other parties from litigating the same questions in the courts of another State, the objection of want of jurisdiction to entertain the petition for the interlocutory order is not maintainable where it appears on appeal from orders sustaining demurrers to petitioner’s bill that the Supreme Court reversed the trial court and ordered a decree entered overruling the demurrers, since such decision could only have been on the ground that the trial court had jurisdiction of the property rights claimed by petitioner.

2. Injunction, § 168*—when court has jurisdiction to restrain proceedings in foreign court. In proceedings in equity to determine the rights of parties in certain real and personal property, where the court had jurisdiction of the property rights claimed in the proceeding, a petition by one of the parties thereto to restrain other parties from litigating the same questions in the courts of another State is maintainable where the domestic court obtained jurisdiction of the parties and property prior to that of the foreign court.

3. Injunction, § 159*—when petition for interlocutory order to restrain proceedings in foreign State sufficient. In a proceeding in equity to determine the rights of parties in certain real and personal property, where the facts and proceedings are involved and complicated, a petition to restrain some of the parties from litigating the same questions in the courts of another State need not, to be sufficient, set up in exhaustive detail all such facts and proceedings and all that the record discloses, since the matter arises after the court has acquired jurisdiction, and is only ancillary to the main issue, in which case the court will take judicial notice of all which the record discloses, and in such case very little is required in the way of a petition or pleading.


author: Mb.. Presiding Justice McSurely

text:
    The People of the State of Illinois ex rel. Clarence D. Blachly, Appellee, v. Percival B. Coffin et al., Civil Service Commissioners, et al., Appellants.
    Gen. No. 22,396.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Chables M. Walkeb, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.
    Rehearing denied December 11, 1916.
    Statement of the Case.
    Petition by the People of the State of Illinois, on the relation of Clarence D. Blachly against Percival B. Coffin et al., as civil service commissioners, et al., respondents, in the Circuit Court of Cook county, for a writ of mandamus to compel the reinstatement of relator in the position of superintendent of the bureau of social surveys, and to compel the city treasurer and comptroller of Chicago to pay relator his back salary from the date of removal to the date of reinstatement. From an order granting the prayer of the petition and awarding the writ, respondents appeal.
    Samuel A. Ettelson, for appellants; Boy S. Gas-kill, of counsel.
    Francis X. Busch, for appellee.
    Abstract of the Decision.
    1. Mandamus, § 139

      —when petition for reinstatement in public office sufficient. On petition for mandamus to compel the reinstatement of relator in a public office, where respondents demurred to the petition, petition examined and held to contain sufficient allegations of ultimate facts to entitle relator to the writ.

      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.

   Mb.. Presiding Justice McSurely

delivered the opinion of the court.

2. Civil service, § 30 —when petition for reinstatement sufficiently avers existence of ordinance creating office. In a petition for mandamus to compel the reinstatement of relator in a public office, an averment that on a certain date a city established a certain department by an ordinance set out in the petition in haec verba, held a sufficient averment of the passage and existence of the ordinance, although the different steps taken in passing it were not alleged.

3. Civil service, § 30*—when petition for reinstatement sufficiently avers efficient performance of duties. In a petition for a writ of mandamus to compel the reinstatement of relator in a public office, an allegation that petitioner had efficiently performed the duties of such position to the absolute and complete satisfaction of his superior officer, held a sufficient averment of the efficient performance of his duties, since such averment could not have been made more complete without averring in detail everything which relator had done in the discharge of such duties, which would involve the pleading of evidence, which is not required.

4. Mandamus, § 139*—what petition for reinstatement in public office must show. One seeking reinstatement in an office by a writ of mandamus must show the legal existence of the office and his right thereto as a matter of law.

5. Municipal corporations, § 108*—what ordinance created bureau of social surveys of Chicago. On a petition for a writ of mandamus to compel the reinstatement of relator in the office of superintendent of the bureau of social surveys in Chicago, an ordinance of such city creating a bureau of social surveys in the department of public welfare, prescribing the functions of such bureau, and providing that the chief officer of such bureau shall be known as the “superintendent of the bureau of social surveys,” held to create the office in which relator sought to be reinstated.

6. Municipal corporations, § 108*—what word “bureau” implies. The word “bureau,” as applied to a division of an administrative department, implies not only a division where business is to be conducted under certain rules and regulations, but includes the operating force as well.

7. Civil service, § 12*—how period of probation computed. The ordinary rule that in computing time the first day of a period must be excluded and the last included does not apply to the probationary period provided by the Civil Service Act, sec. 10 (J. & A. T 1808), where the commission passes a rule that time served on probation, whether continuous or not, shall be credited on the period of probation, so that the exclusion of the first day the probationer works would conflict with the rule of the commission.

8. Civil service, § 12 .—when probationary period expires. The probationary period under the Civil Service Act, sec. 10 (J. & A. If 1808), of a civil service employee whose first day of service was November 13th, held to expire at the end of the working day of May 12th of the following year.

9. Civil service, § 7*—when appointment of probationer complete. The Civil Service Act, sec. 10 (J. & A. If 1808), providing that an employee in the classified service may be discharged “at or before the expiration of the period of probation,” and that if not then discharged his employment shall he deemed complete, is to be construed as meaning that the appointee, under the provisions and method prescribed by the act and rules, may be discharged at any time within the six months, to take effect at once or at the end of the period of probation, but if not discharged within such period the appointment is complete.

10. Civil service, § 12*—when discharge of probationer void. The discharge on May 13th of a civil service employee whose probationary period commenced on November 13th of the previous year, which was also -his first day of work under his appointment, held void.

11. Mandamus, § 139*—when petition for reinstatement in office not obnoxious to general demurrer. A petition for a writ of mandamus to compel the reinstatement of relator in a public office is nat obnoxious to general demurrer although it seeks both reinstatement and hack salary, since, if the relator in his petition has asked some relief to which he is entitled, the petition is still good although he may have also sought some relief which he cannot obtain.


author: Mr. Presiding Justice McSurely

text:
    The People of the State of Illinois ex rel. J. Norman Jensen, Appellee, v. Percival B. Coffin et al., Civil Service Commissioners, et al., Appellants.
    Gen. No. 22,397.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.
    Rehearing denied December 11, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Petition by the People of the State of Illinois, on the relation of J. Norman Jensen against Percival B. Coffin et al., as civil service commissioners, et al., respondents, in the Circuit Court of Cook county, for a writ of mandamus to compel the reinstatement of relator in the office of architectural engineer in the department of buildings in the City of Chicago, and to compel the city treasurer and comptroller to pay relator the salary to which he was entitled. From an order granting the prayer of the petition and awarding the writ, respondents appeal. In some features this case is like People ex rel. Blachly v. Coffin, Gen. No. 22,396, ante, p. 100.
    Samuel A. Ettelson, for appellants; George Cur-ran and Boy S. Gaskill, of counsel.
    Francis X. Busch, for appellee.
    Abstract of the Decision.
    1. Civil service, § 30

      —when petition to reinstate sufficiently alleges ordinance creating office. A petition for a writ of mandamus to compel the reinstatement of relator in a public office, setting out in haec verba the ordinances relied on as creating the office in which relator sought reinstatement, held sufficiently to allege such ordinances and also ultimate facts as distinguished from conclusions, although the different steps taken in passing the ordinances are not alleged.

      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. Presiding Justice McSurely

delivered the opinion of the court.

2. Municipal corporations, § 108 —what constitutes creation of office. On a petition for a writ of mandamus to compel the reinstatement of relator in the office of architectural engineer in the department of buildings in Chicago, an ordinance creating such department and providing for certain architectural engineers therein, and prescribing their qualifications, together with the fact that the annual appropriation ordinance provided for the salary of such officer, held to create the office in which relator sought reinstatement.

3. Civil service, § 30*—when lack of legally passed appropriation ordinance immaterial on petition for reinstatement. On a petition for a writ of mandamus to compel the reinstatement of relator in a public office, the fact that the annual appropriation ordinance providing for the salary of the office in which relator sought reinstatement was not passed by a two-thirds vote, 'held immaterial where it appeared that the office was not created by such ordinance, but by a prior ordinance which was passed unanimously.

4. Civil service, § 24*—when proceedings removing employee not reviewable. Where the Civil Service Commission has proceeded according to law in removing from office an employee in the classified service, the justice of its decision cannot be reviewed.

5. Civil service, § 10*—what commission may not do. Under the Civil Service Act, sec. 12 (J. & A. If 1811), providing that no officer or employee in the classified service shall be removed or discharged except on written charges and after an opportunity to be heard in his own defense, and under a rule passed under authority of section 4 of the same act (J. & A. Tf 1802), providing that such officer or employee who shall be guilty of certain offenses shall be subject to removal or discharge, the Civil Service Commission of Chicago has power only to find such officer or employee not guilty, or to find him guilty and discharge him, and has no power to separate the officer or employee from the department to which he was originally appointed and restore him to the eligible list for certification in another department.

6. Civil service, § 30*—when finding on petition for mandamus for reinstatement requires award of writ. On a petition for a writ of mandamus to compel the reinstatement of relator in a public office from which he was discharged hy the Civil Service Commission after charges and a hearing, a finding that the evidence was “insufficient to warrant the removal” of relator “from the service of the City of Chicago,” held to he in substance a finding that the charges were not sustained by the evidence, and to require the commission to restore relator to his office.

7. Mandamus, § 139 —when petition for reinstatement in office not obnoxious to general demurrer. On a petition for a writ of mandamus to compel the reinstatement of relator in a public office, petition held not obnoxious to general demurrer in that it sought both reinstatement in the office and also salary.


text:
    The People of the State of Illinois ex rel. Jacob L. Jacobs, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 22,398.
    1. Civil service—what is status of commission of Chicago. The Civil Service Commission of Chicago is not an independent corporate body but is one of the departments or bureaus of such city.
    2. Civil service, § 2*—whom applicable to. Employees of the Civil Service Commission are employees of the city, and come under the provisions of the Civil Service Act, sec. 3 (J. & A. 1f 1801), which therefore requires their classification as provided by the section.
    3. Civil service, § 10*—what commissioners may not do. The Civil Service Commissioners have no power either to create or abolish an office.
    4. Civil service, § 1*—when appropriation of salary not affected by act. Nothing in the Civil Service Act (J. & A. If 1799 et seq.') prohibits a city council from creating an office and assigning it to any department of the municipality deemed by the council to be desirable, and when such an office is legally created and assigned to the commission, an appropriation for the salary thereof is not affected by section 18 of the Act (J. & A. If 1817), limiting the expenses of the commission for clerk hire, etc., to $5,000 a year, the latter provision being intended to limit the commissioners in the expenses which they might incur, and not to limit the city council in its appropriation.
    5. Officers, § 2

      —what does not prohibit creation of office. The failure of a provision for the salary of an office does not necessarily prohibit the creation of the office.
    6. Civil service, § 1*—how appropriation of salary affected by amendment to act. While the amendment of the Civil Service Act, sec. 18 (J. & A. If 1817), providing that the civil service commissioners may “incur expenses not exceeding the amount appropriated therefor by the city council,” does not affect the creation of an office assigned by the council to that department, it does operate to remove any question of the legality of the salary of such office for which the council has appropriated.
    7. Civil service, § 27*—when petition for reinstatement sufficient. In a petition for a writ of mandamus to compel the reinstatement of relator in a. public office, averments setting out the ordinances and orders relied on in haec verba, held to aver sufficient material facts to make out a case for petitioner and not to aver conclusions, although some averments were subject to question.
    8. Municipal corporations, § 85*—when language of ordinance creating office sufficient. It is not necessary that the city council in creating an office shall declare in express words that such office is created, it being sufficient if any language is used showing the intent to create the office.
    9. Municipal corporations, § 85*—when ordinance shows intent to create office. In a petition for a writ of mandamus to compel the reinstatement of relator in a public office, ordinances set out in the petition in haec verba, relied on as creating the office in which relator .sought reinstatement, construed and held to show an intent to create such office.
    10. Municipal corporations, § 85*—when office created by implication. Express language in an ordinance creating the title to an office by implication creates the office itself.
    11. Civil service, § 27*—when petition for reinstatement sufficiently alleges creation of office. A petition for a writ of mandamus to compel the reinstatement of relator in a public office sufficiently alleges the creation of the office in which relator seeks reinstatement where it sets out in haec verba ordinances which show an intention to create such office..
    12. Mandamus, § 27*—when petition for reinstatement in office not demurrable. A petition for a writ of mandamus to compel the reinstatement of relator in a public office is not obnoxious to general demurrer in that it seeks two different kinds of relief.

      13. Mandamus, § 190

      —when erroneous award of costs against municipality corrected on appeal. On a petition for a writ of mandamus to compel the reinstatement of relator in a public office, it is error to award an execution against the municipality for costs, and such error will be corrected by an order in the Appellate Court directing the trial court to amend its records in this respect.
    Appeal from the Circuit Court of Cook county; the Hon. Charles ML Walker, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.
    Rehearing denied December 11, 1916.
    Samuel A. Ettelson, for appellants; Boy S. G-as-kill, of counsel.
    Francis X. Busch, 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 McSurely

delivered the opinion of the court.

The relator, Jacob L. Jacobs, sought by petition for mandamus to be restored to the position or office of “Expert on System and Organization” with the Civil Service Commission, and to be paid back salary. To his petition a general demurrer was filed which the court ordered overruled. Bespondents electing to stand by their demurrer, a writ of mandamus was awarded as prayed. A reversal of this order is sought by this appeal.

The petition alleges the adoption of the Civil Service Act by the City of Chicago and the appointment of civil service commissioners; that on January 2, 1912, the city council of Chicago passed an ordinance creating the position of “Expert on System and Organization,” and the ordinance is set forth in haec verba; that subsequently ordinances were passed appropriating a salary for this-position; that on May 14, 1912, this position was duly classified by the civil service commissioners as an office or place of employment in the classified civil service of the City of Chicago; that an examination was had for this position which the relator took, and upon his markings stood second on the promotional eligible list; that afterwards, on July 15, 1912, in compliance with the Civil Service Law, «relator was appointed to this position and accepted the same and entered upon the performance of the duties of that position from that date until May 8, 1915; that on July 15, 1912, an ordinance was passed providing for advancement and increases of salaries within civil service grades, and this ordinance is also set forth in haec verba; that in accordance with this last ordinance the salary of relator was increased from $250 per month to $291.66% per month. The petition further avers that on May 8, 1915, there was unpaid and unexpended in said appropriation for the position of Expert on System and Organization the sum of $2,333.33; that this position is not one of those exempted from the operation of the Civil Service Law by the terms of section 11 of said law (J. & A. ¶ 1810). Petitioner avers that he discharged the duties of said position honestly and efficiently, and that on May 7, 1915, the commissioners sent to him the following communication :

“By direction of the commission, you are hereby suspended from duty pending an investigation of your conduct and actions. This order becomes effective at the close of official business Saturday, May 8, 1915.
(Signed) A. M. Swanson, Secretary.

The petition further alleges that during the period of thirty days thereafter there was no investigation of the conduct and actions of relator by the civil service commissioners or any one acting on their behalf; that on June 8th he reported to the office of the civil service commissioners and asked to be allowed to perform the duties of the position of Expert on System and Organization, and was informed by the commissioners that certain orders had been entered in the minutes of said civil service commissioners of date June 5, 1915, as follows:

“Whereas the commission did on May 5,1915, enter an order (7449 K) suspending Jacob L. Jacobs, Expert on System and Organization, salary $291.66% per month, pending investigation.
“And whereas the period of suspension of the said Jacob L. Jacobs expires by operation of law on June 7, 1915.
“It is therefore ordered that Jacob L. Jacobs be restored to duty.
“And it is further ordered that he be laid off as of June 8, 1915, on account of lack of funds.
“And it is further ordered that his name be returned to the eligible register from whence it came and that no salary be allowed the said Jacob L. Jacobs during the thirty day period of suspension, nor during’ any period of time his name remains upon the eligible register awaiting reinstatement.
“And it is further ordered that the position of Expert on System and Organization, salary 291.66% per month, be and the same is hereby abolished.”

Petitioner further alleges that on June 7th the civil service commissioners mailed a communication to him which is as follows:

“Dear Sir:
“On Saturday, June 5,1915, the Commission entered the following order on its minutes:
“Whereas the Commission did on May 5,1915, enter an order (7449 K) suspending Jacob L. Jacobs, Expert on System and Organization, salary $291.66% per month, pending further investigation.
“And whereas said investigation is in progress and incomplete.
“And whereas the period of suspension of the said Jacob L. Jacobs expires by operation of law on June 7,1915.
“It is therefore ordered that Jacob L. Jacobs be restored to duty.
“And it is further ordered that he be laid off as of June 8, 1915, on account of lack of funds.
“And it is further ordered that his name be returned to the eligible register from whence it came and that no salary be allowed the said Jacob L. Jacobs during the thirty day period of suspension nor during any_ period of time his name remains upon the eligible reg-' ister awaiting reinstatement.
“And it is further ordered that the position of Expert on System and Organization, salary $291.66% per month, be and the same is hereby abolished.
“Accordingly you are hereby notified of the expiration of your period of suspension, your restoration to duty and lay off. Attached hereto is a copy of an opinion rendered by the commission in connection with the entering of this order.”

Petitioner further alleg’es that his suspension by the commissioners was not in good faith and was not for the purpose of investigating the conduct and actions of petitioner but was a pretext and an attempt to deprive him of his position in order that the commissioners might fill the same with some other person,contrary to the terms and provisions of the Civil Service Law; that on June 5, 1915, there was not a lack of funds with which to pay the salary of this position, but on the contrary there was $2,333.33 that had been appropriated for the salary, which was then and still is unexpended and in the city treasury of Chicago; that the position of Expert on System and Organization has existed ever since June 5, 1915, and still exists ; that the commissioners refused and still do refuse to allow petitioner to perform the duties of said office, although petitioner has been willing to perform the same; that afterwards the commissioners designated one E. H. Davenport to perform the duties of the same, and that the commissioners are attempting to pay him for performing the duties of said position out of the treasury of the City of Chicago, and particularly from the fund originally appropriated by the city council to pay the salary of petitioner. It is charged that the said Davenport performs said duties illegally and in violation of the terms of the Civil Service Law; that no charges of any kind have ever been preferred against the petitioner and he has never been removed from his position; that the city treasurer and comptroller refuse to pay him his salary.

The prayer of the petition is that the respondents, the civil service commissioners, forthwith restore petitioner to the position of Expert on System and Organization and permit him to discharge the duties thereof, and that the city treasurer and comptroller be ordered to pay him his salary from May .8, 1915, up to and including the date that petitioner is restored.

At the outset we have the contention of appellants that the employees with the Civil Service Commission are not under civil service, and this is predicated upon the assertion that the Civil Service Commission is a body corporate, existing as an independent" board not subject to the control of the city council; hence it is said that the provision of the Civil Service Act (section 3, ch. 24, J. & A. 1801), requiring the classification of all employees of the city, does not apply. We cannot agree with this contention. Examination of the Civil Service Act discloses that the exercise of duties imposed upon the commission is in many ways connected with, related to and dependent upon the city council. Among other things the act provides that the mayor of the city shall appoint three persons as civil service commissioners of the city; that the mayor in his discretion may remove any commissioner, and shall report such removal to the city council with his reasons therefor. Section 3 provides that “said commissioners shall classify all the offices and places of employment in such city. ’ ’ The act also provides that the commissioners shall on or before January 15th of each year make to the mayor for transmission to the city council a report showing its action, rules and “the practical effects thereof, and.any suggestions it may approve for the more effectual accomplishment of the purposes of this act.” Section 17 (J. & A. ft 1816) requires that the officers of a city adopting the act aid the commission in all proper ways in carrying out the provisions of the act, and for this purpose shall allow reasonable use of public buildings for holding examinations, and suitable rooms are to be provided for the commission at the expense of the city. It is also provided that a city adopting the act shall appropriate a sufficient sum of money to carry out the provisions of the act. There are also other provisions touching the relations between the city and the commissioners, all of which indicate that the commission is not an independent body but is one of the departments or bureaus of the City of Chicago. It follows, therefore, that the persons in the positions or offices in this department are employees of the city and come under the provisions of the act requiring classification. In so holding we are following the reasoning in Brenan v. People, 176 Ill. 620; People v. Kipley, 171 Ill. 44; and People v. Loeffler, 175 Ill. 585. We find nothing decided in the cases cited by appellants which dissuades us from this conclusion. It occurs to us that it would be rather an anomalous situation for the employees of the Civil Service Commission, the guardian of efficiency and permanency in public service, to be unprotected themselves by the Civil Service Act.

If we are correct in the above conclusion, it follows logically that the civil service commissioners have no power either to create or abolish an office. This is self-evident and needs no citation of precedent to support it.

Prior to July 1, 1915, and at the time relator was appointed, section 18 of the Civil Service Act (J. & A. fl 1817) provided that the expenses for “clerk hire, printing, stationery, and other incidental matters” should not exceed $5,000 per year. It is argued from this that as the appropriations made exceeded this sum there was no valid appropriation for the position claimed by the relator, and hence his employment was prohibited. To this it is sufficient to reply that nothing in the Civil Service Act prohibits the city council from creating an office or assigning such office to any department of the municipality the council might deem desirable. If the council legally created the office of Expert on System and Organization, the appropriation for the salary attached thereto was not affected by section 18 of the Civil Service Act. Further, section 19 of the act (J. & A. 1818) provides that “a sufficient sum of money shall be appropriated each year by each city which shall adopt this act, to carry out the provisions of this act in such city.” In view of this section and other provisions of the act prescribing the duties to be performed by the commission, we hold that the $5,000 limitation in section 18 was designed to limit the commissioners in the expenses which they might incur, and not to limit the city council in the amount of its appropriation.

It also might be said that it does not necessarily follow that failure of the provision for salary prohibits the creation of an office. Bunn v. People, 45 Ill. 400; Throop on Public Officers, sec. 8.

On July 1, 1915, section 18, supra, was amended so as to authorize the commissioners to “incur expenses not exceeding the amount appropriated therefor by the city council”; and while we do not think this affects the creation of the office, it does operate to remove any question as to the legality of the salary. Town of Fox v. Town of Kendall, 97 Ill. 72.

Except as to the points above considered, this proceeding is essentially the same in character as People ex rel. Blachly v. Coffin, No. 22,396, ante, p. 100, and People ex rel. Jensen v. Coffin, No. 22,397, ante, p. 103, of this court, in which opinions are this day handed down. Much of what we said in those opinions is applicable to the instant case.

As in those cases, it is contended by appellants that the petition avers conclusions instead of ultimate facts. We do not think so. All the ordinances and orders -pleaded are set forth in haec verba, and while some averments may be subject to question, yet there are sufficient material averments of fact to make out a case for the petitioner.

It is especially urged that it cannot be said that by the language used in the ordinances the position in question was created, and the cases of Moon v. Mayor, 214 Ill. 40, and Bullis v. City of Chicago, 235 Ill. 472, are presented as holding that an appropriation only for an office does-not create the office. We repeat what we have before said in our other opiilions that in these cases it appears clearly by definite language in the ordinances that the positions there under consideration should be afterwards created by another ordinance. That is not the situation before us. We are of the opinion that the correct rule is that it is not necessary for the creation of an office that the council declare in express words that such office is created. The' use of any language which shows the intent to create the office is sufficient. We believe this is supported by Wood v. Blanchard, 19 Ill. 38, and People v. McCann, 247 Ill. 130. The language used in the various ordinances before us contemplates more than an appropriation. The provision, which is essentially the same in all the ordinances, is that “the titles hereinafter set out, of positions under civil service, are, and shall be construed to be, the official civil service titles of the positions for which appropriations are made.” And again, “that the titles and compensation fixed herein for same, or positions under civil service, are, and shall be construed to be, the official civil service titles and the official compensation for same of the positions for which appropriations are made, in accordance with the classification of positions made under the provisions of an ordinance passed by the city council July 15, 1912, authorizing the classification of all civil service positions and providing for uniform grading and compensation in the classified service of the city based upon character and responsibility of duties and seniority and efficiency in the performance of same.” This clearly is language showing an intent to create the office. The express language creating the title of the office carries with it the implication of the creation of the office itself:

There is force in the contention of counsel for the appellee that the decision in Law v. People, 87 Ill. 385, that the appropriation of money for the payment of salary to an office necessarily presupposes and implies the existence of the office, has not been overruled by the decisions in the Moon and Bullís cases, supra. Undoubtedly the decision in the Law case was as claimed, the court saying that the city council “would not have been guilty of the extreme folly of making appropriations for paying the expenses of such offices when none existed.” However this may be, we base our opinion on this point upon our conclusion that the language of the ordinances under consideration is sufficient to show an intention to create the office, and this is all that is required. '

The petition is not obnoxious to general demurrer on the ground that it seeks two different kinds of relief. McArdle v. City of Chicago, 172 Ill. App. 142; People v. Stevenson, 272 Ill. 215. See also, what is said on this point in Nos. 22,396 and 22,397, ante, pp. 100, 103, this day filed.

Appellant is right in pointing out that the trial court was in error in awarding an execution against the municipality for costs. This was a technical error which may be corrected in this court, following the procedure authorized in Village of Itasca v. Schroeder, 182 Ill. 192. The error in ordering execution against the City of Chicago will be corrected by an order entered in this court directing the Circuit Court to amend its record in that respect. In all other respects the order and judgment of the Circuit Court will be affirmed.

Affirmed.


author: Mr. Presiding Justice McSurelt

text:
    Annie Mueller, Appellee, v. Frank M. Mueller, Appellant.
    Gen. No. 22,417.
    1. Equity, § 547

      —what essential to affirmance of decree. In chancery cases, the party in whose favor a decree granting relief is entered must preserve the evidence by a certificate of evidence or otherwise, or the decree must find the specific facts, proved at the hearing, and a recital of legal conclusions in the decree is not sufficient.
    2. Divorce, § 121*—what showing necessary for contempt order for failure to pay alimony. An order finding a husband in contempt for failure to pay alimony must be based on a showing that the husband’s financial ability and circumstances are such that he can pay the amount ordered.
    Appeal from the Circuit Court of Cook county; the Hon. George Kersten, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 27, 1916.
    Saltiel & Rossen, for appellant; Axel F. Lidman, of counsel.
    Gut H. Powell, for appellee; Arthur B. Clements, of counsel.

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

   Mr. Presiding Justice McSurelt

delivered the opinion of the court.

This is an appeal from an order finding appellant guilty of contempt for failure to pay alimony and committing him to jail.

The decree recites that the court heard testimony produced on behalf of the complainant and defendant. This testimony has not been preserved in the record before us and the decree contains no findings of fact. The argument therefore is that as there should be no imprisonment for contempt for failure to pay alimony where it is shown that “his disobedience had not been wilful, but was solely on account of his pecuniary inability, or some other misfortune over which he had no control” (O’Callaghan v. O’Callaghan, 69 Ill. 552), and as the record is silent on this point there must be a reversal. We regard this contention as sound. It is the well-settled rule of practice in chancery cases that the party in whose favor a decree granting relief is entered must preserve the evidence by a certificate of evidence or otherwise, or the decree must find the specific facts that were proven on the hearing. It is also the rule that a recital of legal conclusions in the decree is not sufficient. Village of Harlem v. Suburban R. Co., 202 Ill. 301; Mitchell v. Mitchell, 263 Ill. 165, and cases cited. The déeree before us contains no finding of facts and is wholly silent as to defendant’s pecuniary ability to obey the order of court.

It has been frequently held in this State that an order finding the husband in contempt for failure to pay alimony must be based on a showing that the husband’s financial ability and circumstances are such that he can pay the amount ordered. As was said in Blake v. People, 80 Ill. 11:

“Where the neglect or refusal to perform the decree is not from mere contumacy, but from the want of means, the result of misfortune, not induced by any fraudulent conduct on the part of defendant, the party will be compelled to adopt some mode other than imprisonment, to enforce the decree.”

See also, the O’Callaghan case, supra; Hengen v. Hengen, 192 Ill. App. 151; Ross v. Ross, 177 Ill. App. 542; Schuele v. Schuele, 57 Ill. App. 189; Wightman v. Wightman, 45 Ill. 167.

For the reason that there is no showing to this court that the defendant was able to pay the alimony he was ordered to pay, the order appealed from is reversed and the cause remanded.

Beversed and remanded.


author: Mr. Presiding Justice MoSurely

text:
    Sans Souci Park for use of Miles E. Fried, Appellee, v. Gilbert M. Anderson, Appellant.
    Gen. No. 22,423.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Sans Souci Park, a corporation, for use of Miles E. Fried, plaintiff, against Gilbert M. Anderson, defendant, in the Municipal Court of Chicago, to recover on a contract. From a judgment for plaintiff for $4,162.11, defendant appeals.
    The plaintiff entered into a written agreement with defendant giving to him the exclusive concession and license to conduct a theater in plaintiff’s premises known as the skating rink building, during the summer season. The defendant agreed to- build a stage and prepare the building for theatrical purposes at his own expense. He also agreed to pay plaintiff for lighting, advertising, etc. Defendant took possession and erected a stage in the skating rink building and prepared it for use as a theater.

      It was claimed by plaintiff that later the defendant requested to be permitted to change the grade of the floor so that patrons of the theater sitting in the rear could see the acting on the stage, and that it was agreed between the parties that defendant might construct a graded or sloping floor as a superstructure on the skating "rink floor, upon condition that at the conclusion of the summer season defendant would remove this superstructure and restore the skating rink floor to its original condition. Such a graded floor was erected and used during the summer season, but at the conclusion of the summer season defendant did not remove this superstructure, whereupon plaintiff had this done, and attempted by this suit to recover the cost incurred by it in so doing. Liability for the expense of this work and the correctness of the account for the same were the subjects of controversy.
    Frank & Lurie, for appellant.
    Sidney S. Pollock, for appellee.
    Abstract of the Decision.
    1. Landlord and tenant, § 221

      —what not a defense in action by landlord for cost of removing structure. Where a written lease provided that no alteration should be made in the premises without the written consent of the lessor, held that in an action by the lessor to recover money expended by it in removing a structure erected on the premises by the lessee under an oral agreement made subsequently to the making of the lease, whereby the lessee agreed to remove the structure at the termination of the tenancy, the lessee could not defend on the ground that the oral agreement was not binding, as being in violation of the terms of the lease, since the provision that the written consent of the lessor must he obtained was for the protection of the lessor and could he waived by it.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and -86011011 number..

      See Illinois Notes Digest, Vols. XI to XV, &i)ti Cumulative Quarterly, same topic and section ntimfeer.

   Mr. Presiding Justice MoSurely

delivered the opinion of the court..

2. Landlord and tenant, § 221 —when tenant liable for cost of removing structure. A lessee who had erected a structure on premises devised under a written lease, not providing for the erection, held liable to the lessor for money expended by him in removing the structure at the termination of the tenancy.

3. Trial, § 83*—when not abuse of discretion to reopen case. Where, after the plaintiff and the defendant had apparently rested, the court allowed the plaintiff, on his request, to introduce further testimony, held that there was no abuse of discretion in so doing.

4. Account stated, § 25*—when proof of individual items unnecessary. Where a statement of account of the plaintiff against the defendant was shown to the defendant who agreed to its correctness and promised to pay the amount at a later date, held that it was not necessary that the plaintiff, in order to recover, should introduce evidence in detail as to the various items.


text:
    Charles E. Sanderson, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,437.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthlll, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed with finding of fact.
    Opinion filed November 27, 1916.
    Rehearing denied December 11, 1916.
    Statement of the Case.
    Action by Charles E. Sanderson, plaintiff, against the Chicago City Railway Company, defendant, in the Circuit Court of Cook county, to recover for personal injuries sustained as a result of a collision between defendant’s car and a wagon which plaintiff was driving, causing plaintiff to be thrown from the wagon. From a judgment for plaintiff for $625, defendant appeals.

      John E. Kehoe and Frank L. Kriete, for appellant; W. W. Gurley and J. B. Guilliams, of counsel.
    A. H. Banes, for appellee.
    Abstract of the Decision.
    Street railroads, § 98

      —when driver of wagon guilty of contributory negligence. A driver of a wagon proceeding north on the east side of a street, who, after seeing an approaching southbound car two blocks to the north of him, stopped to allow a northbound car to pass and suddenly, without any previous indication of his intention of doing so, turned west across the southbound track immediately behind the northbound car while the southbound car was but fifteen feet away and running at from seven to ten miles an hour, and was struck by it before he could clear the track, held guilty of contributory negligence barring a recovery for the injury sustained as the result of the collision.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Byron W. Wanamaker, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,440.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas W. Taylor, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 27, 1916.
    Statement of the Case.
    Action by Byron W. Wanamaker, plaintiff, against the Chicago City Railway Company, defendant, in the Circuit Court of Cook county, to recover for personal injuries sustained by plaintiff in a collision between defendant’s street car and a wagon which plaintiff was driving, causing plaintiff to' be thrown from the wagon. From a judgment for plaintiff for $5,000, defendant appeals.
    About noon on October 23, 1912, the plaintiff was driving a team of light mules, hitched to a turntable stake wagon loaded with' vinegar and' pickle casks. He was an experienced teamster and had been driving this particular team of mules a little over a year. He went in an easterly direction on 59th street in Chicago, until he reached Wentworth avenue, where he turned southeasterly diagonally across the two street car tracks on Wentworth, over to the east curb of the street. He drew up alongside and parallel to the curb of the sidewalk, with the mules headed south, at a point 50, feet, móre or less, south of the 59th street building line. He made a delivery in a grocery store near this point, and after making such delivery remounted his wagon and turned his mules westward and northward, intending to drive north to the comer of Wentworth and 59th street and east on 59th. When plaintiff got on the seat of the wagon he saw a northbound car coming on the easterly track on Wentworth, and at this time it appeared to him to be 400 or 500 feet away. There was another vehicle directly south of him standing alongside of the curb, so that the only way he could turn was to drive his team directly onto the track. He started to turn towards the west, and when the mules were on the track he saw the street car then about 220 feet distant. There were street car tracks on 59th street, and plaintiff knew that the northbound car would have to come to a stop at the south side of 59th street. The wagon moved slowly and when the mules struck the track they commenced to slip, and plaintiff’s attention was occupied at this time in holding the mules with a tight rein so that they would not fall. The northbound car, however, proceeded and struck the wagon, while it was moving, near the left front wheel, shoving it along somewhat until the right front wheel broke, permitting the hub to drop to the surface of the street, and plaintiff was thrown from his wagon and received the injuries complained of. When plaintiff indicated to the motorman his intention to cross the tracks the car was over 200 feet away and going about fifteen miles an hour but slowing down. When it was within 20 to 25 feet of the wagon it was going seven or eight miles an hour, but the car was allowed to drift and the brake was not applied until the car was just about to hit the wagon.
    Benjamin F. Richolson and Watson J. Ferry, for appellant; J. R. Guilliams and W. W. Gurley, of counsel.
    George E. Gorman and Fred W. Reinhardt, for appellee.

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

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Street railroads, § 63 ^when evidence shows motorman guilty of negligence. In an action to recover for personal injuries to the driver of a wagon, resulting from its being struck by a street car while the driver was attempting to turn around in a street across the car tracks, evidence held to justify a finding that the defendant street car company’s motorman was guilty of negligence causing the injury.

2. Street railroads, § 91*—when driver of wagon not guilty of contributory negligence. In an action to recover for personal injuries to the driver of a wagon, resulting from his being struck by a street car while the driver was attempting to turn around in a street across the car tracks, evidence held to justify a finding that the plaintiff was not guilty of negligence contributory to the injury.

3. Instructions, § 120*-—when properly refused. It is not error to refuse to give instructions as to ordinances not applicable to the facts in the case.

4. Street railroads, § 149*—when refusal to give instruction as to impertinent ordinance not erroneous. In an action to recover for personal injuries to the driver of a wagon, resulting from his being struck by a street car approaching from the direction in which the wagon was facing, while the driver was attempting to turn around in a street across the car track, it is not error to refuse to give an instruction as to an ordinance which provides that vehicles shall not turn in a street until a signal is given, where the ordinance has reference to a signal which could be plainly seen in the rear.

5. Street railroads, § 149*-—when refusal of instruction as to ordinance requiring driver to signal not erroneous. In an action to recover for personal injuries to the driver of a wagon, resulting from its being struck by a street car, while the driver was attempting to turn around in a street across the car tracks, it is not error to refuse to give an instruction as to an ordinance requiring the driver to give a signal before making such a turn, where the movement of the driver and his team was a sufficient indication to the motorman of the driver’s intention to turn across the tracks.

6. Street railroads, § 149*—when refusal to instruct as to ordinance regulating street traffic not erroneous. In an action to recover for personal injuries to the driver of a wagon which had stopped with its left side next to the curb, resulting from its being struck by a street car approaching from the direction in which the wagon was facing, while the driver was attempting to turn around in the street across the car tracks, it is not error to refuse to give an instruction as to an ordinance providing that no vehicle shall stop with its left side to the curb, since in such a case the pivotal question is not the position of the wagon before it started to turn but whether it turned onto the track when the car was so close that it could not he stopped.

7. Street railroads, § 149 —when refusal to instruct as to right of way in streets not erroneous. In an action to recover for personal injuries to the driver of a wagon, resulting from its being struck by a street car while the driver was attempting to turn around across the car tracks, held not error to refuse to instruct the jury that street cars have a superior right over other vehicles upon that portion of the street occupied by the tracks, since such an instruction would have tended to mislead the jury.

8. Damages, § 124*—when verdict for broken leg not excessive. A verdict for $5,000 for injuries sustained by a teamster, resulting from a collision with a street car, consisting of a compound fracture of both bones of the left leg above the ankle and making, him a cripple for life, held not excessive.


text:
    Ernest Ellenbogen, Appellee, v. Frankfort General Insurance Company, Appellant.
    Gen. No. 22,452.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed November 27, 1916.
    Statement of the Case.
    Action by Ernest Ellenbogen, plaintiff, against Frankfort General Insurance Company, defendant, for loss under a policy of indemnity insurance and for return of unearned premiums. From a judgment for plaintiff, defendant appeals.
    W. C. Shockey and C. W. Greenfield, for appellant.

      Moses, Rosenthal & Kennedy, for appellee; Robert Baohraoh, of counsel.
    Abstract of the Decision.
    1. Insurance, § 150

      —Who has authority to receive premium payment. Where an insurance company delivers a policy to a party, to be delivered to the insured, it thereby clothes such party with authority to receive payment of the premiums, so that the receipt ,of payment by the party is receipt by the company.
    2. Insurance, § 151*—when payment of premium by Chech to agent is payment to company. In the absence of evidence that the attention of an insured was called to a recital in a bill for a premium, that checks should be made payable to the company, payment by check made payable personally to an agent delivering, the policy, held payment to the company.
    3. Insurance, § 679*—when insured’s hnowledge of scope of agent’s authority is question for jury. In an action on an insurance policy, evidence held to present a question for the jury as to whether the insured was, by recital in a bill for the premium that payment should be made by check to the company, put upon notice that payment to an agent presenting a bill would be at the risk of the insured.
    4. Insurance, § 661*—when evidence shows authority of agent. In an action on an insurance policy, evidence that the party who delivered the policy to the insured and who received a check in payment of the premium was charged with the premium on the books of the company and credited with the commission, and testimony of the company’s manager that only authorized agents were charged with premiums and held accountable therefor, and that he agreed to pay such party a commission for placing the policy, held sufficient to justify a finding that such party was an authorized agent of the company.
    5. Insurance, § 190*—what constitutes cancellation by insured. In an action to recover unearned premiums on insurance policies, held that the return of the policies by the insured, after refusal of the company to pay a loss, with a request that they be canceled was a cancellation by the insured within the meaning of a provision of the policy, which provided that in such case the amount of premium earned.should be calculated according to a certain specified rate.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.