text:
    National Croation Society of the United States of America, Appellee, v. Mary Pavlic, Appellee, and Veronika Pavlic. Jurs Pavlic, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Logan county; the Hon. T. M. Habéis, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Rehearing denied December 11, 1915.
    Statement of the Case.
    Bill of interpleader by National Croation Society of the United States of America, complainant, against Mary Pavlic, widow of Kresimir Pavlic, and Jurs Pavlie and Veronika Pavlic, father and mother of Kresimir Pavlic, defendants, to determine the right to the proceeds of a policy of insurance on the life of Kresimir Pavlic. From a decree in favor of defendant Mary Pavlic, after the overruling of a motion by the other defendants to set aside a judgment by default, defendant Jurs Pavlic appeals.
    Abstract of the Decision.
    1. Judgment, § 146

      —when affidavit in support of motion to set aside default insufficient. An affidavit in support of a motion to set aside a judgment by default, held insufficient where it appeared that the affiant had a power of attorney to represent the party and he delayed more than one month, after he learned of the institution of the suit, to represent the interests of the party.
    2. Insubance, § 827*—how change of beneficiary made. Where an insured had the right to change the beneficiary and he did all that he could to make such change, by writing to the lodge in another State, where his certificate was, that he wanted to make such change and to send the certificate to a lodge in the town where he was living, and wrote the secretary of the local lodge to make such change and to find the certificate for him, but the certificate was not obtained, held that the change must be deemed to have been made.
    W. J. Reardon, . for appellant; W. B. Cooney, of counsel.
    McCormick & Murphy, for appellees.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Eldredge

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Charles D. Johnson, Plaintiff in Error.
    (Not to he reported in full.)
    Error to the County Court of McLean county; the Hon. Homes W. Hall, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Charles D. Johnson, defendant, for selling intoxicating liquor in violation of the Local Option Law (J. & A. 4637 et seq.). From a judgment of conviction, defendant brings writ of error.
    There was ample evidence that the defendant sold a malt liquor containing various percentages of alcohol called “Temp Brew.” It was contended that the court erred in giving certain instructions on be- • half of the People, which in substance, told the jury that the words “Intoxicating Liquor” include all distilled,, spirituous, vinous, fermented and malt liquors, regardless of whether said liquors would, as a matter of fact, produce intoxication. The plaintiff offered several instructions, which were refused by the court, stating, in substance, that the burden was upon the prosecution to prove beyond all reasonable doubt that he sold liquor which was, in fact, intoxicating, and the refusal to give them was also assigned as error.
    Quinn & Quinn, Heyl & McGrath and D. J. Sammon, for plaintiff in error.
    . Miles K. Young, for defendant in error; W. B. Leach, of counsel.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision.

1. Intoxicating liquors, § 158 —when instruction as to what constitutes correct. On a prosecution ,for selling intoxicating liquor in violation of the Local Option Law (L & A. 1 4637 et seq.), an instruction in the language of the statute (L & A. If 4637) that the words “intoxicating liquor” “include all distilled, spirituous, vinous, fermented and malt liquors,” regardless of whether said liquors would, as a matter of fact, produce intoxication, held correct.

2. Intoxicating liquors, § 5*—when statutory definition valid. The Legislature has the power and right to declare malt liquor to be an intoxicating liquor, irrespective of its intoxicating character.

3. Intoxicating liquors, § 159*—when instructions on burden of proof properly refused. On a prosecution for selling intoxicating ■ liquor in violation of the Local Option Law (J. & A. If 4637 et seq.), the refusal of requested instructions on behalf of defendant that the burden was upon the prosecution to prove beyond all reasonable doubt that he sold liquor which was, in fact, intoxicating, held proper.


text:
    The People of the State of Illinois, Defendant in Error, v. Adolph Schlick and Bernhart Kile, Plaintiffs in Error. The People of the State of Illinois, Defendant in Error, v. George Schenk, Plaintiff in Error. The People of the State of Illinois, Defendant in Error, v. Charles Seibert and John Seibert, Plaintiffs in Error. The People of the State of Illinois, Defendant in Error, v. Anthony Shearer and Harry Meisenhelter, Plaintiffs in Error.
    (Not to be reported in full.)
    Writs of error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Prosecutions by the People of the State of Illinois, plaintiff, against Adolph Schlick ánd Bernhart Kile, defendants; against George Schenk, defendant; against Charles Seibert and John Seibert, defendants; against Anthony Shearer and Harry Meisenhelter, defendants, for violation of the Local Option Law (J. & A. 4637 et seq.). Prom judgments of conviction, the defendants bring writs of' error.
    By agreement of the parties all the writs of error were consolidated in this court. Trial by jury was waived in all the cases and they were tried by the court on agreed stipulations of fact. The stipulations of fact in these cases were identically the same as those which appear in the case of City of Decatur v. Schlick, 269 Ill. 181, with the exception that in the latter case the judgments appealed from were obtained by prosecutions brought .under a city ordinance of the City of Decatur, while the judgments from which the writs of error were prosecuted from this court were obtained by prosecutions under the statute. The above case is referred to for these stipulations.
    Abstract of the Decision.
    1. Intoxicating liquors, § 80

      —when defendants guilty of violating Local Option Law by shifts and devices. On prosecutions for selling intoxicating liquor in violation of the Local Option Law (J. & A. If 4637 se seq.), all the writs of error being consolidated, held, following Oity of Decatur v. Schlick, 269 Ill. 181, that the defendants were guilty of violating such act by means of shifts and devices.
    2. Courts, § 150*—when opinion of Supreme Oou-rt on same facts binding. The decision of the Supreme Court upon the same facts involved in a criminal prosecution is res judicata and binding on the Appellate Court.
    The only question involved in these writs of error was whether the several defendants in error were guilty of violating said act by means of shifts and devices.
    Charles C. Le Forges and Vail & Miller, for plaintiffs in error.
    Jesse L. Deck and Charles F. Evans, for defendant in error.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Michael Elliott and Otho Jennings, Plaintiffs in Error.
    (Not to he reported in full.)
    Error to the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case,
    Prosecution by the People of the State of Illinois, plaintiff, against Michael Elliott and Otho Jennings, defendants, for selling intoxicating liquor in anti-saloon territory and for keeping a place where intoxicating liquor was sold, in violation of the Local Option Law (J. & A. ft 4637 et seq.). From a judgment of conviction, defendants bring error.
    The Town of Decatur by a vote of the People on the 7th day of April A. D. 1914, became dry territory. The evidence for the People showed conclusively that the defendants, who had been in the saloon business before the town became dry territory, continued to run their dramshop in the City of Decatur within said town openly for a long period of time thereafter. The defendants did not testify themselves, nor offer any evidence, and made no defense whatever. The court imposed the minimum fine and the miulmum jail sentence under each count against each defendant, and it was urged that the aggregate punishment was excessive.
    In entering judgment the court ordered and adjudged, in substance, that the defendant Otho Jennings make his fine unto the People of the State of Illinois, in the sum of twenty dollars on each of the first seventy counts, and that he make his fine unto the People of the State of Illinois in the sum of fifty dollars on the last, or seventy-first count, of the said indictment; that he be confined in the common jail of Macon county for a period of 10 days on each of the first seventy counts of said indictment; that he he confined in the common jail of Macon county for a period of 20 days on the last, or seventy-first count, of the said indictment; that the jail sentences imposed herein run consecutively, making a total of 720 days in jail; that he stand committed until said fine and costs are fully paid, or until he shall be otherwise discharged according to law. Substantially the same form of judgment was entered as to the defendant Michael Elliott.
    Abstract of the Decision.
    1. Intoxicating liquors, § 161

      —when punishment not excessive. On a prosecution for selling intoxicating liquor in anti-saloon territory and for keeping a place where intoxicating liquor was sold, in violation of the Local Option Law (J. & A. j[ 4637 et seq.), a judgment imposing the minimum fine and minimum jail sentence under each count fixed by statute against each defendant, held not excessive.
    2. Intoxicating liquors, § 161*—when judgments proper in form. On a prosecution for selling intoxicating liquor in anti-saloon territory and for keeping a place where intoxicating liquor was sold, in violation of the Local Option Law (J. & A. j[ 4637 et seq.), judgments held proper in form. .
    J. C. Lee and Fred Hamilton, for plaintiffs in error.
    Jesse L. Deck and Charles F. Evans, for defendant in error.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    George P. Van Cleave, Appellant, v. P. H. Fitzsimmons and Katie E. Knox, Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Usury, § 47

      —how to he pleaded. It is not sufficient to plead in general terms that a transaction is usurious, but the facts constituting the usury must be set forth.
    2. Usury, § 48*—when insufficiently pleaded. In an action on two promissory notes, a special plea averring that the supposed promissory notes in said declaration mentioned were for the payment of interest at a greater rate than is allowed by law, that they were not taken nor received by the plaintiff in the usual course of trade, and that the plaintiff, at the time he received the said notes under the indorsement thereof to him, well knew the consideration of the making, executing and delivering of the same, held insufficient as a plea of usury.
    "Appeal from the County Court of Macon county; the Hon. O. W. Smith, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded with directions.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by George P. Van Cleave, plaintiff, against P. H. Fitzsimmons and Katie E. Knox, defendants, on two promissory notes. A judgment by confession had originally been taken in vacation, but at a later term of court, on motion of defendants, the judgment was opened up and defendants given leave to plead. From a judgment in favor of defendants after overruling of a demurrer to a special plea, plaintiff appeals.
    Bedmon & Hogan, for appellant.
    J. C. Lee, for appellees.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


author: Mr. Presiding Justice Eudredge

text:
    The People of the State of Illinois, Appellee, v. William Coleman, Jr., Appellant.
    (Not to. he reported in full.)
    Appeal from the County Court of Jersey county; the Hon. Habry W. Pogue, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Bastardy proceedings by the People of the State of Illinois, plaintiff, against William Coleman, Jr., de- • fendant. From a judgment for plaintiff on a verdict of the jury finding defendant to be the father of the bastard child of Ora Tucker, defendant appeals.
    On August 26, 1914, Ora Tucker filed her complaint before the justice of the peace charging, “that on or about the-day of April, 1914, the crime of bastardy was committed in said county, and named defendant as guilty of said crime. ’ ’ The child was born October 28,1914, and the prosecutrix testified that the acts of intercourse which caused her condition took place on the evening that she attended a show with defendant at the Modem Woodmen hall in the Town of Fidelity, which was on the last Wednesday in January, 1914, and also on the following Sunday evening. Defendant admitted in his testimony to having had many acts of intercourse with the prosecutrix, but that she having positively testified as to the particular dates when such acts took place which caused her condition that she must prove those acts as of such particular dates, and as the preponderance of the evidence showed that he was not with her in Fidelity at those times, the verdict was contrary to the evidence. The prosecutrix was corroborated in her testimony in this regard by several witnesses who were at least as disinterested as those who testified for defendant.

      Abstract of the Decision.
    1. Bastabds, § 33

      —when question whether" defendant was with prosecuting witness at times claimed for jury. In bastardy proceedings, where the evidence was conflicting as to whether defendant was with the prosecuting witness at the times claimed by the latter, held that such Question was for the jury.
    It was further contended that as the complaint charged that the acts of intercourse took place in April, 1914, and as the prosecutrix testified on the trial that they were committed in January, 1914, defendant was taken by surprise, and did not have sufficient opportunity for procuring evidence to contradict her testimony, and in support of the motion for a new trial, affidavits were filed by seyeral officers of the Fidelity Camp of the Modem Woodmen to the effect that- no entertainment of any kind was given in the Modem Woodmen hall on behalf of the Modern Woodmen on the evening of the last Wednesday in January, 1914, and one affidavit stated that no entertainment of any kind was given on behalf of said camp in said hall on any night during said month of January. But it appeared that said hall was also used by a society known as the Boyal Neighbors of America, and the affidavit did not state, and no affidavit was filed, stating that there was not in fact an entertainment given on behalf of the Boyal Neighbors of America in said hall, or one given under some other auspices, on some night during the month of January.
    Ferns & Sumner, for appellant.
    W. J. Chapman, for appellee.

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

   Mr. Presiding Justice Eudredge

delivered the opinion of the court.

2. Bastards, § 19*—when exact day of intercourse immaterial. It is immaterial, in bastardy proceedings, on what particular days alleged acts of intercourse took place, if, in' fact, the defendant is the father of the bastard child.

3. New trial, § 99*—when affidavit in support of new trial on ground of surprise insufficient. In bastardy proceedings where the complaint charged that the acts of intercourse took place at a certain time, but the prosecutrix testified that they took place three months earlier, affidavits in support of a motion for new trial on the ground of surprise, held insufficient. •


text:
    L. M. Woods, Appellee, v. James N. Bowman and Samuel Hardin. James N. Bowman, Appellant.
    1. Trial, § 168

      —when character of relationship, question for court. Where the facts are undisputed, the existence of the relationship of master and servant or bailor and bailee between two persons is a question for the court.
    2. Bailment, § 3*—when garage man bailee for hire. A garage -man who receives an automobile for repairs from the administrator of an estate, so that it may be in proper condition for a public sale, is a bailee for hire, and not a servant.
    3. Master and servant, § 1*—who is servant. A servant is one who is employed to render personal service to his employer otherwise than in the pursuit of an independent calling, and who remains entirely under the control and direction of the latter.
    4. Master and servant, § 1*—when garage man not servant. A garage man who receives an automobile for repairs from the administrator of an estate, so that it may be in a proper condition for public sale, is not a servant, but a bailee for hire.
    5. Bailment—when bailor not liable for acts of bailee. A bailor is not liable to third persons for injuries' received through the negligence of the bailee.
    6. Automobiles , and garages, § 2*—when administrator not personally liable to third person for negligent act of garage man. An administrator of an estate who hires a garage man to repair automobiles belonging to the estate for the purpose of a public sale, being a bailor, is not personally liable to a third person for personal injuries caused by the garage man while returning from the premises belonging to the estate, where he had delivered a repaired car, in one of such cars, for the purpose of taking out another repaired car to such premises.
    7. Touts, § 32

      —when joint judgment void as to both wrongdoers. A joint judgment which is invalid as to one wrongdoer is void as to the other.
    8. Appeal and error, § 1802*—when cause reversed and remanded. Where a joint judgment is void as to one wrongdoer because invalid as to the other, it must be reversed as to both and the cause remanded.
    Appeal from the Circuit Court of Christian county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Rehearing denied December 11, 1915.
    C. H. Shamed and E. O. Neff, for appellant.
    J. E. Hogan and J. A. Merry, for appellee.

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

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Appellee recovered a judgment in the sum of $1,800 against James N. Bowman, appellant, and Samuel Hardin, in an action on the case for damages for personal injuries received by him from being hit by an automobile driven by said Hardin belonging to the estate of John Bowman, deceased, of which James N. Bowman, appellant, was administrator. The original declaration made James N. Bowman a party defendant as administrator of said estate. This was subsequently amended so as to make appellant Bowman a party defendant in his own proper person and not as such administrator. Bowman alone prosecuted this appeal.

Many assignments of error have been presented in the argument of counsel for appellant, but from the view we take of the case but one will be necessary to be noticed as it will dispose of the others.

The evidence shows that John Bowman in his lifetime was a farmer, living about a mile and a half west of the Village of Stonington. He was a bachelor, and upon his death his cousin, James N. Bowman, appellant, was appointed administrator of his estate. Among other items of personal property owned by the deceased at the time of his death were five automobiles. Appellant, as such administrator, took possession of the personal property and advertised the same, including these automobiles, for sale at an administrator’s sale, held on the 3rd day of November, A. D. 1913. In order to prepare these automobiles for the sale, appellant Bowman, as administrator, made an agreement with his codefendant, Hardin, who ran a garage, to go out to the farm, get the cars, take them to the garage, repair them and return them to the farm for the sale. On the morning of the day of the sale, Hardin and his assistant began taking the cars from the garage to the farm. The method pursued was as follows: The assistant would drive one of the cars to the farm and Hardin would follow him with another car so as to bring back the assistant. Several cars had been delivered in this manner, and it was while Hardin was returning with his assistant in one of the cars in order to take out another car that the accident happened. There were many people, including appellee, walking along the highway to the farm for the purpose of attending the sale, and it is charged in the declaration that Hardin so negligently drove the car that he caused it to strike appellee producing the injuries complained of.

The theory of appellee on which he bases his claim of liability against appellant Bowman is, that Hardin was the servant and employee of Bowman and that the latter was therefore responsible for Hardin’s negligence. It is the contention of appellant that the relation of bailor and bailee existed between him and Hardin, and that as bailor he was not responsible for the bailee’s negligence. It is first insisted by appellee that it was a question of fact for the jury to determine from the evidence, whether there was created the relation of bailor and bailee, or master and servant. This might ordinarily be true if there was any conflict of evidence upon these propositions, or if there was any evidence tending to show that the relation of master and servant existed. But the facts in regard to these questions are as have been heretofore stated herein, and are undisputed. Whether a certain uncontroverted state of facts creates the relation of master and servant or that of bailor and bailee is a question of law.

When a garageman receives an automobile for repairs to be made for the mutual benefit of the owner and the repairer he becomes a bailee for hire. Ford Motor Co. v. Osburn, 140 Ill. App. 633. A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling, and who remains entirely under the control and direction of the latter. Appellant had no control over Hardin, nor did he give any directions as to what repairs should be made, nor how they should be done. Hardin was engaged in the independent calling of running a garage and making repairs on automobiles. He was not in any sense the employee of appellant. Appellant contracted with him to take the cars from the farm to the garage, repair them, return them to the farm, and demonstrate them at the sale, and it was while Hardin was fulfilling that part of the contract of returning the cars to the farm that the injury happened. That a bailor is not liable to third persons for injuries received through the negligence of a bailee is well settled. McColligan v. Pennsylvania R. Co., 214 Pa. 229.

The decisions are substantially unanimous in holding that an owner of an automobile is not responsible for injuries to third persons caused by the negligence of bailees, of servants using said cars for their own personal pleasure, or business, or of persons over whom the owner had no control. Thus it was held in the late case of Segler v. Callister, 167 Cal. 377, that the owner of an automobile who had delivered it to a mechanic to repair was not liable for personal injuries resulting to a third person from a collision due to the negligence of the mechanic while testing the car in the due performance of his work by operating it on a public street.

In the case of Woodcock v. Sartle, 84 Misc. (N. Y.) 488, 146 N. Y. Supp. 540, it was held that a mechanic engaged by the owner of an automobile to repair his car on his premises at a specified sum per week was an independent contractor, it appearing that the repairs were left entirely to his judgment, and that the owner was not liable for an injury to a third person which occurred through the negligent operation of the car while the mechanic was testing it.

In the case of Hartley v. Miller, 165 Mich. 115, it was held that the owner of an automobile riding in his own car, but as the guest of a person who had borrowed and was driving the machine, was not liable to a third person injured by the driver’s negligent operation thereof. See also, note 51 L. R. A. (N. S.) 772.

From the undisputed facts shown by the record in this case there can be no liability against appellant Bowman, and as he alone perfected an appeal, it is unnecessary to decide any of the other questions raised; but as the judgment is against him and Hardin jointly, it must be reversed as to both and the cause remanded. South Side El. R. Co. v. Nesvig, 214 Ill. 463; Seymour v. O. S. Richardson Fueling Co., 205 Ill. 77; West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288; Claflin v. Dunne, 129 Ill. 241; Jansen v. Varnum, 89 Ill. 100. The judgment is reversed and cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Appellee, v. Jasper Tice et al., Appellants.
    1. Bastards, § 4

      —what is nature of action. Proceedings under the Bastardy Act (J. & A. If 703 e£ seq.) are criminal in form, but the action itself is a civil one, and is intended to compel the putative father to contribute to the support of his illegitimate child.
    2. Bastards, § 50*—nohat is nature of bond. A bond given under the provisions of the Bastardy Act (J. & A. If 703 et seq.) is a civil obligation given to secure the payment of a debt.
    3. Bastards—when surety on bond not discharged. The rule that a surety on a recognizance in a criminal case is absolved from any liability thereon by the death of the principal has no application to a bond given under the Bastardy Act (J. & A. If 703 et seq.), as the bond is a civil obligation given to secure the payment of a debt.
    4. Statutes, § 212*—when presumed that Legislature did not intend to release sureties on bond upon death of bastard’s father. It must be presumed that the Legislature, because of the fact that in sections 14, 15, of the Bastardy Act (J. & A. Iflf 716, 717) are enumerated events which shall render the bond for the support of the child void, not including the death of the putative father, intended that the death of. the principal should not have the effect of releasing the sureties on the bond.
    Appeal from the County Court of Brown county; the Hon. W. Y. Baker, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    J. F. Began and B. E. Vandeventer, for .appellants.
    O. T. Briggs, for appellee.

      See Illinois Notes Digest, Vols, XI Í9 3£V? and Cumulative Quarterly, same topic and section npmbey.

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

Albert Tice was found to be the father of the bastard child of Agatha Wagner by the County Court of Brown county, Illinois, at its January term, A. D. 1914, and was ordered by the judgment of said court to pay to the clerk thereof the sum of $100 for the first year after the birth of said child, and $50 per year for nine years thereafter, said payments to be in equal quarterly instalments and to be paid on the 19th day of the months of December, March, June and September respectively of each year, for the support, maintenance and education of such child, and it was also ordered that he be required to give a bond with sufficient surety to be approved by the judge of said court in the penal sum of $800, conditioned for the due and faithful payment of said sums to the clerk of said court. The bond was executed by said Albert Tice, as principal, and by Jasper Tice and John Craven, as sureties thereon. Agatha Wagner, on November 27, 1914, filed her petition in said court alleging the facts above stated, and further, that said Albert Tice paid the first three instalments of $25 each as ordered by the court, but that the fourth instalment of $25, which was due September 19, 1914, has not been paid; that said Albert Tice died July 18, 1914, and that said sureties knew of his death and the nonpayment of said fourth instalment, and prays that said sureties may be cited to appear in said court on the 1st day of December, A. D. 1914, and show cause, if any they have, why execution should not be issued against them for the amount of said fourth instalment. Appellants filed their answer to the petition, which admitted all the facts therein, and further alleged that the death of Albert Tice was caused by tuberculosis, and that by reason of his death he was rendered incapable by the act of God from further complying with or performing the terms of said judgment and bond, and that they, as sureties thereon, were therefore relieved and discharged from making any further payments. Upon the hearing the court rendered judgment against appellants for said fourth instalment due September 19, 1914, for the sum of $25, from which judgment this appeal is prosecuted.

The only question involved is: Were the sureties on this bond discharged from their obligations thereon by the death of their principal, Albert Tice? Although proceedings under the Bastardy Act are criminal in form, the action itself is a civil one. Rawlings v. People, 102 Ill. 475; McFarland v. People, 72 Ill. 368; Peak v. People, 71 Ill. 278; McCoy v. People, 71 Ill. 111; Davis v. People, 50 Ill. 199; People v. Starr, 50 Ill. 52; Allison v. People, 45 Ill. 37; People v. Noxon, 40 Ill. 30; Mann v. People, 35 Ill. 467; Maloney v. People, 38 Ill. 62; Holcomb v. People, 79 Ill. 409. Section 8 of the Act (J. & A. 710) provides that the order and judgment of the court shall be for the payment of a sum of money in certain instalments for a period of ten years, “for the support, maintenance and education of such child,” and that the bond shall be “conditioned for the due and faithful payment of said yearly sum, in equal quarterly instalments.” Section 10 of the Act (J. & A. Tf 712) provides: “The money, when received, shall be laid out and appropriated for the support of such child in such manner as shall be directed by the court; and when a guardian shall be appointed for such bastard, the money arising from such bond shall be paid over to such guardian.” Section 11 of the Act (J. & A. 713) provides that if default be made in the payment of any of the quarterly instalments, a petition for citation and judgment may be rendered for the amount due against the principal and sureties on the bond, and execution shall issue thereon. Section 12 (J. & A. ft 714) provides, among other things, that this judgment may be made a lien upon the real estate of the principal and sureties by filing a transcript thereof in the office of the clerk of the Circuit Court. It is clear from these sections of the statute that an action thereunder, though in form criminal, is essentially of the nature of a civil action, the object being not the imposition of a penalty for an immoral act, but merely to compel the putative father to contribute to the support of his illegitimate child. This is well settled by a great many decisions in this State. Scharf v. People, 134 Ill. 240, and cases cited. The rule that a surety on a recognizance in a criminal case is absolved from any liability thereon by the death of the principal has no application to bonds given in accordance with the provisions of this act. In our opinion such a bond, given under the provisions of the Bastardy Act, is a civil obligation given to secure the payment of a debt.

Keeping in mind that the bond is conditioned for the due and faithful payment of a certain sum of money in instalments for a period of ten years for the support, maintenance and education of the child, it is necessary to ascertain in what instances the sureties may be discharged from their obligations. The statute itself enumerates the circumstances which will avoid the bond. Section 14 (J. & A. ft 716) provides that the bond shall become void if the child shall not be born alive, or, being born alive, shall die at any time. Section 15 (J. & A. jf 717) provides that the bond shall become void if the mother and reputed father shall at any time after its birth intermarry. The statute having thus enumerated in what events the bond shall become void, and having omitted to include in such enumeration the death of the reputed father, as a rule of statutory construction it must be presumed that the Legislature did not intend that his death should háve the effect of releasing the sureties on the bond.

In our opinion the judgment of the County Court is right and it is therefore affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Sam D. Price, Appellee, v. C. A. Askins, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action of mandamus by the People of the State of Illinois ex rel. Sam D. Price, petitioner, against C. A. Askins, respondent, to compel respondent to turn over the books, funds, etc., held by him as school treasurer. From a judgment against respondent, an appeal was taken.
    Respondent was school treasurer of Township 10, Range 3 East of the third principal meridian in Shelby county, Illinois. It appeared from the record that the trustees of said school, district met on April 11, 1914, for the purpose of electing a president and treasurer. At this time respondent was holding the office of treasurer, having been appointed thereto by the old board. The record of the meeting was as follows: ‘‘ State of Illinois, Shelby County, ss. April 11,1914.
    “Trustees of Schools of Township Ten (10), Range Three (3) met at No. 6 School, District No. 47, directly after the election of trustee, and proceeded to organize by electing H. M. Archey, president of the Board of Trustees. '
    “S. A. D. Howe nominated C. A. Askins for treasurer of the board for the ensuing term.
    “ J. F. Banning nominated Sam D. Price,
    “H. M. Archey decided the nomination by favoring Sam D. Price for treasurer for the coming term.”
    The record of this meeting was written up by respondent as clerk of said board. The relator, Sam D. Price, was not at the meeting of the board, but, upon being notified subsequently of his election as treasurer, executed a bond in proper form, which was approved by each member of the board, and delivered it to the County Superintendent of Schools, who indorsed thereon: ‘/Received, approved and filed in my office May 4, 1914. Lee W. Frazer, County Superintendent.” Thereafter the relator made a written demand upon respondent to turn over to him the school funds, books and properties as treasurer of said school district. This respondent refused to do.
    Abstract of the Decision.
    1. Appeal and error, § 1301

      —when presumed that court heard only competent evidence. It must be presumed on appeal from a judgment after a trial by a court without a jury that the court considered only competent evidence.
    2. Appeal and error, § 1414*—when finding of court not disturbed as unsupported by evidence. The finding of a trial court will not be disturbed on appeal as unsupported .by the evidence where there is sufficient competent evidence in the record to sustain the judgment of the court.
    3. Ofeicebs, . § 35*—when former school treasurer estopped to claim irregularity in form of record of a meeting. A former school treasurer, respondent in mandamus proceedings to compel him to turn over the books, funds, etc., of the office, is estopped to complain that the record did not show that relator was elected treasurer in such action, where he, respondent, wrote up the record of the meeting of the board of directors at which relator was elected school treasurer.

      The principal contentions of respondent were: First, that the record of the meeting did not show that the relator was elected treasurer; second, that the record of the meeting not having been signed by the president and clerk of the board of trustees, it was not authenticated and should not have been received in evidence; and third, that there was no proper approval of the bond of the relator by the County Superintendent of Schools.
    George B. Rhoads, for appellant.
    Whitaker, Ward & Pugh, 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 Eldredge

delivered the opinion of the court.

4. Oeetcebs, § 35 —when former school treasurer estopped to claim defects in minutes of meeting. A former school treasurer, respondent in mandamus proceedings to compel him to turn over the books, funds, etc., of the office, is estopped to claim, in such action, that the minutes of the meeting of the board of directors at which relator was elected school treasurer did not constitute a proper record because not signed by the president and clerk as required by law, where he himself acted as clerk and failed to fulfil his duty by signing the minutes.

5. Schools and school distblcts, § 41*—what power school trustees have to remove township treasurer. School trustees have the power to appoint a township treasurer for the term of two years, and to remove him for sufficient cause, and this power of removal requires no formal charge, no notice to the incumbent, no form of procedure, and is not subject to review.

6. Schools and school districts, § 61*—when bond of school treasurer properly approved. A bond of an appointed school treasurer which was approved by the board of trustees in due form and approved by the county superintendent by indorsing thereon the words: “Received, approved and filed in my office May 4, 1914. Lee W. Frazer, County Superintendent,” held properly approved by the county superintendent.

7. Schools and school districts—when duty of county superintendent to give certificate to appointed school treasurer. Where a bond of an appointed school treasurer is in proper form, and is duly approved and accepted by the board of directors and county superintendent, it is the duty of the latter to give the treasurer a written certificate that he is such officer, and the fact that such certificate is not given cannot defeat his right to such office.

8. Schools and school districts—when appointed school treasurer entitled to funds. An appointed school treasurer, relator in an action of mandamus to compel a former treasurer to turn over the books, funds, etc., of the office, has the prima facie right to the office and is entitled to the funds, etc., where his bond has been duly approved by the board of directors and by the county superintendent, although he has not received a certificate from the school superintendent.

9. Mandamus, § 49*—how title to office may not be tried. The title to an office cannot be tried in an action of mandamus.


text:
    W. S. Richey, Appellee, v. State Bank of Latham, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 74

      —when competent as part of res gestee. In an action by a depositor against a bank to recover the balance of proceeds from the sale of property on the farm of which plaintiff was tenant, the entire proceeds of which sale were deposited in defendant’s bank, and such balance paid over to the landlord by the bank cashier on the alleged order of the depositor, after satisfaction of a claim of the bank, a question on cross-examination of plaintiff as to whether he owed the bank some money that was taken out of the sale money, held competent as' part of the res gestee.

    2. Banks and banking, § 118

      —when evidence admissible to show authority of bank to pay out deposit to creditor of depositor. In an action by a depositor against a bank to recover the balance of proceeds of a farm sale turned over by defendant’s cashier to plaintiff’s landlord, after satisfaction of a claim of the bank, a question on cross-examination whether he did not tell a certain person that all the proceeds of the sale were to he paid or turned over to the landlord, held competent as tending to corroborate the testimony of defendant’s cashier on the disputed question that plaintiff authorized the cashier to turn over such proceeds.

      Appeal from the Circuit Court of Logan county; the Hon. Thomas M. Habéis, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by W. S. Richey, plaintiff, against the State Bank of Latham, defendant, to recover funds deposited in defendant’s bank. From a judgment for plaintiff, defendant appeals.
    Humphrey & Anderson, for appellant.
    King & Miller, 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 Eldredge

delivered the opinion of the court.

3. Banks and banking, § 118*—when evidence admissible in action by depositor to recover deposit. In an action by a depositor against a bank to recover the balance of proceeds of a farm sale remaining after the satisfaction of a claim of the bank, and which balance was turned over to the plaintiff’s landlord by the bank cashier, but, as plaintiff claimed, without authority, held that a question on cross-examination of plaintiff as to whether he did not tell the cashier on the morning of the sale that all the proceeds of the sale were to be turned over to the landlord as a credit on the debt to the latter, held competent.

4. Banks and banking, § 118*—when evidence admissible in action by depositor to recover deposit. In an action by a depositor against a bank to recover the balance of proceeds of a farm sale remaining after the satisfaction of a claim of the bank, and which balance was turned over to the plaintiff’s landlord by the bank cashier with the claimed consent of plaintiff, a question on cross-examination of the plaintiff if he did not owe the landlord a note about that time for a specified sum, held competent.

5. Banks and banking, § 118*—when evidence admissible in action by depositor to recover deposit. In an action by a depositor against a bank to recover the balance of proceeds of a farm sale remaining after the satisfaction of a claim of the bank, and which balance was turned over to plaintiff’s landlord by defendant’s cashier with the claimed consent of plaintiff, a question on cross-examination of plaintiff if he did not know what notes the landlord held against him, held proper.

6. Banks and banking, § 118a*—when evidence sufficient to show authority to pay deposit to creditor. In an action by a depositor against a bank to recover the balance of proceeds of a farm sale remaining after the satisfaction of a claim of the bank, and which balance was turned over to plaintiff's landlord by defendant’s cashier with the claimed consent of plaintiff, evidence held sufficient to show that plaintiff authorized the payment of such balance to the landlord to be applied on his indebtedness to the latter.

7. Banks and banking, § 118a*—when evidence sufficient to show ratifiation by depositor of payment of deposit to creditor. In an action by a depositor against a bank to recover the balance of proceeds of a farm sale remaining after the satisfaction of a claim due the bank, and which balance was turned over to plaintiff’s landlord by defendant’s cashier with the claimed consent of plaintiff, evidence held sufficient to show that even if plaintiff had not verbally authorized defendant to turn over the balance of such proceeds to the landlord, he had afterwards ratified its action in so doing.


text:
    Charles P. Wilson, Appellee, v. Hartford Fire Insurance Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by Charles P. Wilson, plaintiff, against the Hartford Fire Insurance Company, a corporation, to recover for a loss by fire based on an oral contract to renew a policy in force. From a judgment for plaintiff, defendant appeals.
    The case was before the court in a former appeal, 188 Ill. App. 181, where it was reversed and remanded on the ground that the declaration was insufficient. More than a year after the loss an additional count was filed.
    O. M. Jones and Babgeb & Hicks, for appellant; C. O. Caelson, of counsel.
    Lindley, Penwell & Lindley, for appellee; Waltee C. Lindley, of counsel.

      Abstract of the Decision.

      Insurance—when action may be maintained on oral contract to renew fire policy. Though a fire insurance policy provided that no recovery could be had thereunder unless an action was commenced' within one year after the loss, held that a recovery could be had on an oral contract to renew such policy though the action was not commenced within the period named in the policy.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    L. L. Butterfield, Appellee, v. Simon Diekman, Appellant.
    1. Appeal and error, $ 269

      —what is final judgment. A judgment on a motion to quash an execution is a final judgment, and an appeal will lie therefrom.
    2. Judgment, .§ 252*—when cleric no authority to amend record. A clerk has no authority, on his own motion, to amend the record of a judgment in vacation.
    3. Judgment, § 112*—when judgment by default sufficient in form. Where the defendant, in a case appearing upon the judge’s docket under its correct number, but with the first name of the defendant incorrect, was defaulted, held that the judgment was in fact rendered against the real defendant in the case as appeared in the pleadings.
    4. Execution, § 113*—when special execution should be quashed. Refusal to quash a special execution issued on a judgment, the record of which had been altered by the clerk of his own volition by changing the first name of the defendant, held error.
    Appeal from the Circuit Court of McDonough county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded with directions.
    Opinion filed October 13, 1915.
    Elting & Mainline, for appellant.

      Vose & Creel and Flack & Lawyer, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

This is an appeal from the judgment- of the Circuit Court of McDonough county overruling a motion to quash a special execution issued on a judgment in attachment in favor of appellee.

Appellee instituted his suit in attachment in said court to the May term, A. D. 1914, thereof. The affidavit for attachment and all the papers necessary for the institution of the suit filed in the case named appellant by his proper name, Simon Diekman. The case bore the general number 3329, and when it came to be docketed upon the judge’s docket or minute book by inadvertence it was docketed as L. L. Butterfield vs. Charles Diekman. On May 11, 1914, judgment was entered by default and the memoranda appearing upon the judge’s minute book are as follows: “No. 3329. L. L. Butterfield vs. Charles Diekman. Dfdt. called—i defaulted—evidence heard judg. in attachment against dfdt. in favor of pltf. for $500.00 and costs. Special execution awarded.” The clerk, following the entries in the minute book, wrote up the judgment in the record as against Charles Diekman, and on August 6, 1914, a general execution was issued against Charles Diekman. After the May term had been adjourned, the clerk, in vacation, attempted to amend the record of the judgment by striking out the word “Charles” and inserting in lieu thereof the word “Simon.” He also at the same time procured the general execution which had been given to the sheriff to serve and made similar amendments therein. On September 3, 1914, which was still in vacation, on motion of appellant, the general execution was quashed on the ground that the clerk had no authority to amend it after it had been delivered to the sheriff, and not upon the ground that it should have been a special and not a general execution. On September 12, 1914, the court still being in vacation, a special execution was issued on said judgment against appellant in his proper name, Simon Diekman. On September 19th, the same being one of the days of the September term of said court, appellant made a motion to quash this special execution, which was overruled, and it is from the judgment overruling this last motion that this appeal is prosecuted.

It is first urged by appellee that a judgment on .a motion to quash an execution is not a final judgment and no appeal will lie therefrom. There is a conflict in the decisions of the courts of foreign States and jurisdictions upon this question, but we believe that the principles of right and justice support the theory that an appeal or writ of error will lie from such judgment, because, if they did not, a person would be powerless in a rightful case to save his property from being confiscated by a void legal process. In the case of Sloo v. State Bank of Illinois, 1 Scam. (2 Ill.) 428, it was contended that a judgment on a motion to set aside a judgment or to restrain an execution from being issued thereon because the judgment was void was not a final judgment from which a writ of error could be prosecuted. But the Supreme Court held: “The expressions used in the statute defining the jurisdiction of this court, we agree, are not to be extended to give this court cognizance of cases in proceedings or judgments merely interlocutory; but we aver thaf whenever a decision takes place in any of the Circuit or inferior courts of record of this State, which is final, and of which a record can be made, and which shall decide the right of property or personal liberty, complete jurisdiction is conferred on this court to hear and determine the same. * * * It seems to us, that, if the reasoning of the defendants’ counsel was correct, the adoption of his doctrine would lead to an almost entire subversion of the objects for which this tribunal was created. ’ ’ In the case of Jenkins v. Merriweather, 109 Ill. 647, the appeal was taken from the judgment of the Circuit Court in refusing to quash an execution venditioni exponas, and while no question seems to have been raised in that case as to whether such judgment was a final one and an appeal could be taken therefrom, yet the Supreme Court assumed jurisdiction of the appeal and decided the matter upon its merits. The fact that the Appellate tribunals of this State do, of their own motions, if none are made for the purpose, dismiss appeals which they have no jurisdiction to entertain, leads to the conclusion that the Supreme Court in assuming jurisdiction of the appeal in the latter case considered that judgment a final one.

It is urged by appellant that the clerk had no authority to amend the record of the judgment in vacation on his own accord. That this is true is too clear for argument. Even the court, after the term has expired, has no power even at a subsequent term to order an amendment to the .record in matters of form except upon notice to the parties to the suit and when there are some memoranda, minutes or notes of the judge, or something appearing on the records or files to amend by. Babcock v. McCamant, 53 Ill. 214; Swift v. Allen, 55 Ill. 303; Bryant v. Vix, 83 Ill. 11; Ayer v. City of Chicago, 149 Ill. 262. But it is urged that the judgment was, in fact, rendered against Simon Diekman, and that on the authority of People v. Petit, 266 Ill. 628, appellee was entitled to his special execution regardless of whether any judgment was actually recorded by the clerk or not. We agree that the judgment was actually rendered against Simon Diekman. This is shown by the minutes made by the judge. The minutes pertaining to the case were made in the case “No 3329,” and show that the defendant in that case was defaulted, judgment rendered against him in favor of appellee, and that a special execution was awarded. These minutes are not the record of the judgment. The judgment would have been just as much a judgment if no minutes thereof had been made at all; but having been made they may be resorted to as a memorandum of what the judgment was. They were made in a case bearing a general number 3329, and it is wholly immaterial that the minutes also contained an incorrect title to the case, or whether they contained any title or not. The minutes are identified with the case having the general number 3329. In the case of People v. Petit, supra, which was a mandamus proceeding instituted in the Supreme Court, it appears that the relator, Halbrook, on October 17, 1913, procured a judgment in his favor in an action of assumpsit for $9,500 damages against one Lawton, on which an execution was issued on November 18th. At the time the execution was issued no record of the judgment had been written by the clerk, and on December 4th, Lawton made a motion to expunge the entries of the clerk from the dockets and files in the case, or in alternative, if the court should hold the judgment to be valid, that the judgment for certain alleged errors of fact occurring in the proceedings be vacated and set aside. Upon the filing of the motion the court entered an order staying the execution and forbidding the clerk to spread of record any further orders in the case until further notice. Thereupon the relator, who was the plaintiff in the court below, instituted mandamus proceedings in the Supreme Court to compel the judge to expunge from the record that part of his order forbidding the clerk to spread of record any further orders in the case. The Supreme Court held that it was not necessary to the validity of the execution that the judgment should have been written by the clerk in the court record at the time of the issuance of the execution, and that the judgment existed from the time the court rendered it and not from the time it was formally recorded upon the record. It was further held that after the lapse of the term at which the judgment was rendered the power of the court over the judgment was gone, and that it could not in any way vacate, modify or interfere with it, and had no authority at that time to order that the judgment rendered at a previous term should not be written in the record. This is the extent of the holding of the Petit case, supra, in so far as the issues in this case are concerned.

While an execution can be issued on a judgment before the record thereof is made, it is clearly upon the theory that the law presume's that when the record of the judgment is written it will be written correctly and in the same manner that it was made, but after the formal record thereof has been made, then such record is the evidence of the judgment which ordinarily" can only be proved by the record. The record, so written, is a finality and cannot be changed, modified . or altered by the clerk of his own volition. Judgments are the solemn declarations of the courts adjusting the rights of property and the liberty of the persons of the litigants who come before them, and would have no value if they had no stability. The amended record of the judgment in this case is void, and the special execution issued by virtue thereof is also void and should have been quashed. Appellee should have made a motion to amend the record of the judgment as there is abundant proof in support thereof, and then have his special execution issued on the proper judgment. He can suffer no injury by following such a course as the levy of the attachment writ retains the lien upon the property levied upon.

The judgment is reversed and cause remanded with directions to sustain the motion to quash the special execution.

Reversed and remanded with directions.


text:
    Joseph Schlitz Brewing Company, Appellant, v. J. R. Miller et al., Appellees.
    Intoxicating liquors—when recovery may he had on bond for payment of purchase price of interstate shipment. Recovery may be had on a bond given to secure a payment of the purchase price of beer shipped by a dealer outside the State to a point within dry territory in the State and consumed there.
    Appeal from the Circuit Court of Shelby county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Chafee, Chew & Baker, for appellant.
    Whitaker, Ward & Pugh, for appellees.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

On the 11th day of April, 1910, appellee J. B. Miller, of the City of Shelbyville, Illinois, and the Jos. Schlitz Brewing Company, of Milwaukee, Wisconsin, entered into a written contract in which Miller agreed to handle exclusively the beers of said brewing company for a period of five years at certain stipulated prices free on board cars at Shelbyville, Illinois, to be paid by him to said brewing company. On the back of the agreement was the following: “No order or agreement for the purchase of beer will be considered as binding upon the company until received and accepted at the general office in Milwaukee. All sales of beer, however, ordered, delivered or paid for, are understood and agreed to be made and fully consummated in Milwaukee, Wisconsin. All shipments will be made f.o.b. Milwaukee, and are at the risk of the purchaser from the moment when delivery is made to a regular common carrier.” On the same day appellee Miller, as principal, and Boss Ward and W. O. Wallace, of Shelbyville, as sureties, executed a bond in the sum of $1,500 payable to said brewing company, which contains the following provisions, among others: “Whereas, the above bounden principal has agreed to purchase for and during the next five years from the date hereof beer brewed by the Jos. Schlitz Brewing Company (a corporation engaged in the manufacture of beer at Milwaukee, Wisconsin), to the exclusion of all other malt beverages, in consideration whereof said Jos. Schlitz Brewing Company has consented to sell and ship upon the order of said principal from time to time as needed in his business its various brands of beer in conformity to the by-laws, rules and regulations established in that behalf and printed on the back hereof, and at the following prices, to-wit: * * * and to extend to said principal on such purchases a running credit not exceeding $1,500 (inclusive of the amount due and owing the defendant), as long as all purchases in excess of said credit are promptly paid, and the above bounden purchaser complies with all of his obligations in the premises, etc.

“Now, therefore, the condition of this obligation is such that if the above bounden principal, his heirs, executors, or administrators shall faithfully comply with said agreement and shall well and truly pay or cause to be paid to the above named Jos. Schlitz Brewing Company, its successors or assigns, all sums of money which may or shall be owing to said Jos. Schlitz Brewing Company at any time or times when the same become payable according to the agreement aforesaid, and the regulations endorsed on the back hereof without fraud or delay then this obligation to be void, etc.”

On the back of the bond were the same stipulations as were upon the back of the agreement. These stipulations, both on the back of the bond and the agreement, purported to be “By order of the Board of Directors, August TJihlein, secretary.”

On June 6, 1912, there was a balance due appellant from Miller under the agreement for the sale of beer of $703.58, which Miller refused to pay, and to enforce the payment of which appellant brought this action of debt upon the bond.

The trial was had before the court without a jury, and a finding and judgment was rendered in favor of appellees, to reverse which this appeal is prosecuted.

It is contended by appellees that the agreement for the sale of beer, and the bond, were each made and executed in the City of Shelbyville, while the same was anti-saloon territory, and are, therefore, void as contrary to the public policy of this State as evidenced by section 13 of the Local Option Act (J. & A. if 4649). Section 13 is as follows: “the giving away or delivery of any intoxicating liquor for the purpose of evading any provision of this Act, or the taking of orders or the making of agreements, at or within any political subdivision or district while the same is anti-saloon territory, for the sale or delivery of any intoxicating liquor, or other shift or device to evade the provision of this Act, shall be held to be an unlawful selling.”

The question which has been largely argued is whether the contract and bond and the sales of liquor sued for were executed in Shelbyville or in Milwaukee, Wisconsin. There is an apparent conflict between the provisions of the contract itself signed by the parties thereto, and the stipulation upon the back thereof. The provision in the contract is that the beer shall be delivered f.o.b. cars at Shelbyville, while that in “the stipulation on the back thereof states that the sale shall be considered as having been made in Milwaukee, Wisconsin, and completed upon delivery to the common carrier at that place. The contract also provides that the beer was to be delivered subject to the rules and regulations printed on the back thereof. The bond contains no reference as to where the beer should be delivered.

The Town of Shelbyville is a township in the county of Shelby which is under township organization, and the City of Shelbyville is situated within the township. On April 7, 1908, the Town of Shelbyville became anti-saloon territory under the Local Option Act. On April 21, 1908, the City of Shelbyville became anti-saloon territory under the same act. On April 7,1910, the proposition: “Shall the Town of Shelbyville continue to be anti-saloon territory?” was submitted to a vote of the town and a majority voted against the proposition, so that the township ceased to be anti-saloon territory. On May 9, 1910, the City Council of the City of Shelbyville passed an ordinance granting liquor licenses within the city on the theory that the last vote of the township above mentioned which embraced the city within its limits took the city with it out of anti-saloon territory. On May 1,1911, a license was issued by the city to appellee Miller and saloons were continued to be operated in the city until the opinion in the case of Stead v. Fortner, 255 Ill. 468, was rendered in October, 1912. The decision of the Supreme Court in that case held that where a township, and a city within the township, have each voted to become anti-saloon territory, but the township subsequently votes against the proposition to continue to be anti-saloon territory, the township vote does not make the city saloon territory nor authorize the issuance of license or the sale of intoxicating liquor in such city. After the above decision was rendered, appellee refused to pay the balance he owed appellant.

Many cases have been cited by appellee in support of the argument that where the public policy of a State has been declared by a legislative enactment forbidding the sale of intoxicating liquors within its border that a contract for the sale of such liquors is void and no recovery can be had for the price thereof. But all these cases are by the courts of States that have enacted State wide prohibition laws, and in most of which there are provisions declaring such contracts to be void. We do not think that because the Local Option Law of this State grants certain territorial subdivisions thereof the privilege of making themselves anti-saloon territory that a public policy is thereby declared against the sale of intoxicating liquors within the State. The laws of this State give cities, towns and villages the right to license, regulate, tax and prohibit many trades, pursuits and callings; to illustrate, they have the power to license, tax, regulate, suppress and prohibit hawkers and peddlers. Does such a law declare a public policy of the State against the sale of merchandise to hawkers and peddlers because they might attempt to sell it within territory which has prohibited its sale? The answer is too plain for argument. Whether the contract and bond should be held to have been executed within this State, or within the State of Wisconsin, as this beer was shipped from the latter State into this State it was, as held in the case of F. W. Cook Brewing Co. v. Vaccaro, 188 Ill. App. 387, undoubtedly an interstate shipment. But it is urged that section 13 of the Local Option Act above quoted declares that the sale of intoxicating liquor under such contract is an unlawful selling. The answer to this proposition is that in the case of People v. McBride, 234 Ill. 146, where the constitutionality of the Local Option Act was involved and attacked on the ground that this section of the act violates the interstate commerce clause of the Federal Constitution, the Supreme Court said: “The act does not purport to control in any manner the importation of liquor from other States.” There is no statute in this State prohibiting a recovery upon such a contract, and we are in accord with the views expressed by the court in the case of F. W. Cook Brewing Co. v. Vaccaro, supra, that where intoxicating liquors are imported from another State into this State, as there is no statute prohibiting a recovery, therefore a recovery can be had for the sale thereof. The judgment is reversed and the cause remanded.

Reversed and remanded.

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


text:
    Charles Johnson Hardware Company, Appellant, v. Board of Education of School District No. 96, Fulton County, Illinois, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Fulton county; the Hon. Robert J. Grieb, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Bill by Charles Johnson Hardware Company, complainant, against the Board of Education of School District No. 96, Fulton County, Illinois, defendant, to establish a mechanic’s lien. From a decree dismissing the bill, the complainant appeals.
    The complainant sold material to a contractor, W. H. Card, engaged in the construction of a public building. It served the following notice on the president of the board of education:
    “Peoria, Ill., Nov. 10, 1913.
    “Mr. W. H. Card,
    Bought of Chas. Johnson Hardware Co.,
    2023 South Adams Street.
    “No. 1, Contract Job, Roofing,
    Gralvd. Iron and Tin

      Abstract of the Decision.
    I. Mechanics’ liens, § 5

      —how act construed. The Mechanics’ Liens Act must be strictly construed.
    2. Mechanics’ liens, § 67*—when notice of mechanic’s lien insufficient. A notice under section 23 of the Mechanics’ Liens Act (J. & A. 1 7161) by a materialman who had furnished materials to a building contractor, which did not claim any lien for the unpaid balance of its account, did not show what materials were furnished the contractor and did not state that the materials furnished were for the construction of the building in which the lien was sought, held insufficient.
    Work and Sky-lights
    on Cuba Schools____1,160.00
    Cr.
    “Sept. 15, By Cash.............. 500.00 660.00.”
    H. H. Atherton and I. O. Pinkney, for appellant.
    Chiperfield & Chiperfield, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Congregation of Bnai Abraham, Appellant, v. Sarah Kanner, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Sangamon county; the Hon. Nobman L. Jones, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action in assumpsit by the Congregation of Bnai Abraham, a corporation, plaintiff, against Sarah Kanner, defendant. From a judgment for defendant, plaintiff appeals.
    The action was brought upon the following instrument:
    “February 23, 1914.
    “I, Sarah Kanner, in consideration of my love and fond memory of my late husband, Isadore Kanner, and in further consideration of the funeral rites performed and to be performed- upon my said late husband, hereby promise to pay the present encumbrance upon this congregation, Bnai Abraham, at Seventh and Mason streets, amounting to $1,900.00, within six months from date. I hereby further empower the trustees of the said congregation to enforce my said promise.
    “Sarah Kanner.
    “Witness.”
    Smith & Friedmeyer, for appellant.
    William L. Patton and Thomas J. Condon, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the -court.

Abstract of the Decision.

Conteacts, § 86 —when promise to pay off incumbrance unsupported by consideration. A promise by the widow of a deceased member of a religious congregation to pay off an incumbrance on church property in consideration of funeral rites performed and to be performed upon the deceased, and empowering the trustees of the congregation to enforce the promise, held not to be a promise by anybody to anybody, except to the maker thereof, and not founded upon a valid consideration.


text:
    Charles Crum, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    (Not to he reported in full.)
    Appeal from the County Court of Edgar county; the Hon. Dan V. Dayton, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by Charles Crum, plaintiff, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, defendant, for damages for failure to furnish proper cars for the shipment of live hogs. From a judgment for plaintiff, defendant appeals.
    . The declaration alleged that the defendant received from the plaintiff a number of live hogs for shipment from Paris, Illinois to East Cambridge, Massachusetts, and that the defendant failing in its duty to furnish proper cars, the plaintiff was compelled to and did ship them to Indianapolis, Indiana, and suffered damage as the result thereof.
    It appeared from the evidence that plaintiff requested defendant to furnish double deck cars for these hogs, but that plaintiff was unable to procure double deck cars, but did furnish single deck cars. It did not appear that plaintiff made any protest upon the character of the cars, but accepted the same and shipped his hogs to Indianapolis. Plaintiff testified upon direct examination that he ordered the cars for the purpose of shipping the hogs to Bast Cambridge, but on cross-examination he stated that he was not sure whether he ordered the cars in order to make the shipment to East Cambridge or to East Buffalo, New York. The records of defendant showed that his order was for cars in which to ship the hogs to East Buffalo, New York. The evidence showed that one carload of hogs was sold in Indianapolis at $9.50, and the second load at $8.95 per hundred pounds. Plaintiff further testified that just before he made the shipments he had telegrams from the J. P. Squire Company, pork packers at East Cambridge, that the price for top hogs at that place was $11.50 per hundred pounds dressed for pork. He also testified that the cost of shipping the hogs to' East Cambridge would be about $2.50 or $2.60 per hundred, and that the freight rate was 32% cents per hundred. A few of the hogs were sold to local parties at Paris, Illinois, for $8.50 per hundred pounds. There was no evidence as to what the hogs weighed at Indianapolis, or whether the price received for them there was for live hogs or for hogs dressed for pork. There was no evidence of the number or weight of the hogs sold at Paris. There was no evidence of any kind in regard to a shipment of hogs to East Buffalo, New York. There was no evidence that the cars furnished were not proper and suitable for the shipment of the hogs to East Cambridge except that of plaintiff himself. .
    George B. Gillespie, for appellant.
    J. K. Lauher, for appellee.

      Abstract of the Decision.
    1. Witnesses, § 209

      —when cross-examination of witness improper. Where, in an action by a shipper against a carrier for failure to furnish proper cars, the plaintiff, on being called by the defendant, testified as to the kind of cars he shipped in and that he made no complaint thereof, held that allowing him to state on cross-examination that such cars were not of the kind ordinarily used by well-regulated railroad companies for the purpose for which he desired them, and that cars of another kind were usually furnished for such purpose- by well-regulated carriers, was improper.
    2. Damages, § 190*—when evidence insufficient as basis for computation of damages. In an action by a shipper against a carrier for failure to furnish cars suitable for the shipment of live hogs, held, that there was no evidence from which the jury could estimate damages.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Harley J. White, Appellee, v. Margaret Holden, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myees, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Rehearing denied and opinion modified December 11, 1915.
    Statement of the Case.
    Action of forcible entry and detainer by Harley J. White, plaintiff, against Margaret Holden, defendant. From a judgment for plaintiff, defendant appeals.
    Murray & Morrissey, for appellant.

      Abstract of the Decision.
    1. Justices of the peace—when copy may be substituted for lost written complaint on appeal. If, on appeal from a justice of the peace to the Circuit Court, a written complaint is found to he missing from the files and has been' lost or destroyed, upon due proof made thereof, a copy may be substituted therefor.
    2. Appeal and error, § 1275

      —when presumed that ruling of Circuit Court dismissing case proper. In the absence of a bill of exceptions, held that the action of the Circuit Court in overruling the defendant’s motion to dismiss an action of forcible entry and detainer, appealed from a justice’s court, on the ground that there was no written complaint on file, would be presumed proper.
    M. A. Brennan and Ralph Heffernan, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Erwin & Maxwell, Appellees, v. R. F. Johnson, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Christian county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinon filed October 13, 1915.
    Rehearing denied December 11, 1915.
    Statement of the Case.
    Action "by Erwin & Maxwell, partners, plaintiffs, against R. F. Johnson, .defendant, for commissions for the sale of real estate. From a judgment for plaintiffs, defendant appeals.
    "W. B. McBride, E. E. Dowell and M. J. Fitzgerald, for appellant.

      Abstract of the Decision.
    1. Evidence, § 275

      —when telegram admissible. Where the plaintiffs took the initiative in sending the defendant a telegram, held that they thereby made the telegraph company their agent, and that the telegram delivered to the defendant could be introduced in evidence as the original.
    2. Contracts, § 377*—when evidence as to existence of contract admissible. In an action on a contract which one of the plaintiffs testified was verbal, where he admitted that he had received letters from the defendant to the same effect it was held that an objection to a question as to where the letters were was improperly sustained, on the ground that it was immaterial.
    3. Trial, § 45*—when statement of .court improper as invading province of jury. In an action on a contract, a statement by the court that a conversation detailed by a witness did not amount to an agreement, held to invade the province of the jury.
    4. Brokers, § 95*—when instruction erroneous. In an action for commissions for the sale of a tract of land where the defense was that commissions for the sale thereof were to be paid only in case a sale was made of another tract, an instruction directing a verdict for the plaintiffs and ignoring such defense, held erroneous.
    John E. Hogan and James H. Smith, for appellees.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.


text:
    Mabel Ware Anderson, Appellee, v. Decatur Railway & Light Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1401

      —when verdict not disturbed. In an action for personal injuries sustained as the result of the vehicle in which the plaintiff was riding, on a street car track, being struck by an overtaking street car, evidence held to justify the submission of the questions of negligence of the defendant and contributory negligence of- the plaintiff to the jury, and not to justify a reversal of the verdict as contrary to the evidence.
    2. Appeal and error, § 1466*—when admission of evidence harmless error. In an action for personal injuries, admission of testimony that a witness heard a remark made which indicated to her that an accident, such as claimed by the plaintiff, had happened,
      held not reversible error, if error at all, there being no controversy as to whether or not such accident had happened.

      Appeal from the Circuit Court of Macon county; the Hon. William K. Whitfield, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Rehearing denied December 11, 1915.
    Statement of the Case.
    Action by Mabel Ware Anderson, plaintiff, against the Decatur Railway & Light Company, defendant, for damages for personal injuries. From a judgment for plaintiff, defendant appeals.
    Crea & Housum, for appellant; George W. Burton, of counsel.
    Chester A. Smith, Charles F. Evans and Jesse L. Deck, for appellee.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

3. Instructions, § 118*—when not objectionable as not referring to evidence. An instruction stating an abstract proposition of law is not objectionable in that it does not refer to the evidence.

4. Carriers, | 482*—when instruction not erroneous. In view of the evidence, an instruction in an action by a street car passenger for personal injuries, held not erroneous as assuming a duty on the part of the motorman to sound a gong.

5. Instructions, § 114*—when should not be given. Instructions as to matters not in issue should not be given.

6. New trial, § 96*—when affidavit in support of motion for new trial insufficient. A new trial in a personal injury action, held properly denied on an affidavit stating that the plaintiff’s physician, in an interview with the defendant’s claim agent, omitted to state the details of the results of the plaintiff’s injuries, it not being claimed that, as the result of such omission, the defendant was taken by surprise as to the extent of such injuries, and there being nothing in such affidavit showing that any wilful misrepresentation had been made.


text:
    Two Rivers Coal Company, Appellant, v. J. B. Vaughn et al., Appellees.
    Appeal and error, § 800

      —what bill of exceptions must contain for purpose of review. A ruling on a motion to quash a writ of certiorari, to review proceedings of the industrial board under the "Workmen’s Compensation Act [Cal. Ill. St. Supp. 1916, If 5475 (1)' et seq.], will not be reviewed where it is not preserved in a bill of exceptions.
    Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the April term, 1915.
    Affirmed.
    Opinion filed October 13, 1915.
    Bradley, Harper & Eheim, for appellant; Samuel A. Harper, of counsel.

      Thomas A. Graham, for appellees.

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

   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

The appellant filed its petition in the Circuit Court of Vermilion county for a writ of certiorari to review the proceedings of the Industrial Board of the State of Illinois had under the Workmen’s Compensation Act of 1913 [Cal. Ill. St. Supp. 1916, ¶ 5475 (1) et 5eg.] in the matter of the application of John L. Bill-man for compensation under said act. Upon the return of the writ a transcript of all the evidence and proceedings before the committee of arbitration, and also a transcript of the additional evidence and proceedings on appeal to the industrial board from the decision of said committee, was filed in the Circuit Court. An award was made to Billman by the arbitration committee for temporary disability in the sum of $85.50, and for permanent disfigurement to his face in the sum of $463.20. The cause was heard in the Circuit Court upon the- motion of appellees to quash the writ and dismiss the petition for certiorari, which motion the court- sustained, quashed the writ, and dismissed the petition at petitioner’s costs. From the judgment of the court on this motion, this appeal is prosecuted. The record contains no bill of exceptions preserving any exceptions; consequently, there is nothing for this court to review. The rulings of trial courts upon motions generally can only be preserved for review on appeal by bills of exceptions, and this rule applies as well to motions to quash writs of certiorari as to other motions. In the case of Hersey v. Schaedel, 6 Ill. App. 188, the court held: “The record in this case contains no bill of exceptions, and although the clerk has recited as a part of the proceedings that a motion to quash the writ was interposed and overruled, and that an exception to such decision was taken, such matters can be made a part of the record, so as to be subject to review in an Appellate Court only by bill of exceptions.”

So also in the case of LaFevere v. Watson, 70 Ill. App. 646, the court said: “He brings the case to this court on a writ of error,' and assigns for error: 1, that the court erred in overruling plaintiff’s motion to quash the writ of certiorari and dismiss the appeal; and 2, that the court erred in rendering judgment for the defendants, and that the judgment should have been for the plaintiff.

“In order to have preserved these questions for the consideration of this court, the plaintiff in error should have saved them in a bill of exceptions, as otherwise there is nothing in the record for us to pass upon. There is no bill of exceptions in the record. The clerk has improperly inserted in the record what purports to be a motion to quash the writ of certiorari, and also a motion for a new trial, but this action of the clerk does not make these alleged motions a part of the record.”

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

Affirmed.


author: Mr. Justice Graves

text:
    In the Matter of the Estate of Cassius M. Coyle, Deceased. Alice L. Coyle, Executrix, Appellant, v. W. D. Castle, Surviving Partner, Appellee.
    (Not to be reported in full.)
    Appeal from the Circuit Court of McLean county; the Hon. Conostbst D. Myers, Judge, presiding. Heard in this court at the Octo-
    ber term, 1914.
    Affirmed.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Partnership accounting by a surviving partner. In the matter of the estate of Cassius M. Coyle, deceased, W. D. Castle, surviving partner. Alice L. Coyle, executrix, objector, against W. D. Castle, surviving partner, defendant. From a decree directing the objector to pay a certain sum to the defendant, the objector appeals.
    Welty, Sterling & Whitm:ore, for appellant.
    Stone, Oglevee & Franklin, for appellee.

      Abstract of the Decision.
    1. Jury, § 9

      —when parties no right to trial by jury. In a case settling up partnership añairs after the death of one partner, held the parties were not entitled to a trial by jury.
    2. Trial, § 289*—when propositions of law may be submitted. Propositions of law may only be submitted in cases where the right of trial by jury existed and the jury has been waived.
    3. Appeal and error, § 1166*-—-when propositions of law not reviewed. The correctness or incorrectness of rulings of the trial court on propositions of law submitted need not be considered on appeal where there was no right to submit propositions of law.
    4. Appeal and error, § 1712*—when assignments of error deemed waived. Assignments of error on appeal are considered waived if not argued.
    5. Appeal and error, § 1394*—when findings not disturbed as unsupported by evidence. On appeal in a partnership. accounting, rulings on objections to items of account will be sustained unless clearly against the manifest weight of competent evidence.
    6. Appeal and error, § 1265*—-when judgment, order or decree presumed correct. Unless all the evidence upon which a judgment, order or decree was based is preserved in the record on appeal, such judgment, order or decree will be presumed to be correct.
    7. Evidence, § 122*—when secondary evidence inadmissible. Where in a partnership accounting original books, accounts, checks, etc., are in evidence, transcripts and abstracts made therefrom by an expert accountant are not competent.
    8. Evidence, § 164*—what does not constitute admission against interest. Where a surviving partner in his account charged himself with a certain item, stating that the executrix of the deceased partner claimed that it was properly so chargeable but that he reserved the right to make proof of its correctness, held that the charging of such item was neither an admission against interest nor proof of its correctness.
    9. Evidence, § 366*—when inadmissible as conclusion of witness. Testimony of a witness that a surviving partner had admitted that certain items should be charged to him in his account and that the witness thought such items amounted to a certain sum, held inadmissible as being a pure conclusion of the witness.
    10. Partnership, § 404*—when presumed that items properly charged to firm’s account. Where a deceased partner had also been cashier of the bank on which checks payable to the surviving partner were drawn and charged to the firm’s account, held that on an accounting by the surviving partner it would be presumed that such items were properly so charged from the fact that the deceased partner had access to the books and there was no evidence that he objected to such procedure.

      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 Graves

delivered the opinion of the court.

11. Partnership, § 407*—when evidence sufficient to sustain allowance of item in action for accounting. A ruling of the trial court in a partnership accounting as to the correctness of a certain item as charged, sustained, though at variance with the deductions made by a partisan expert accountant from records not preserved in the abstract, where witnesses had been heard by the trial court and the expert’s deductions were shown to be unreliable.

12. Costs, § 73 —when appellant properly charged with cost of additional abstract. Where the appellant’s abstract on appeal was defective, the cost of an additional abstract furnished by the appellee was, on affirmance of the judgment, taxed against the appellant.


text:
    G. F. Bieber, Plaintiff in Error, v. Aetna Insurance Company of Hartford, Defendant in Error.
    (Not to be reported in full.)
    Error to the Circuit Court of Moultrie county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action by Gr. F. Bieber, plaintiff, against Ætna Insurance Company of Hartford, a corporation, defendant, under a fire insurance policy for loss. To reverse a judgment in bar entered against Mm, the plaintiff prosecutes a writ of error.
    Whitley, Fitzgerald & McLaughlin and Whitaker, Ward & Pugh, for plaintiff in error.

      Abstract of the Decision.
    1. Pleading, § 463

      —-when error in overruling demurrer waived. A party by replying to pleas after his demurrer thereto has been overruled loses his right to have such ruling passed upon by a reviewing court.
    2. Witnesses, § 21*—when incompetent to testify. In an action on a fire insurance policy, objection to a question asked the defendant company’s special adjuster, whose headquarters were at another city than where the headquarters of the company were, as to whether the company had received any notice from certain appraisers chosen by the parties to appraise the loss, held improperly overruled where it was not shown that the witness had any knowledge of the subject of the inquiry.
    3. Instructions, § 7*—when necessary that jury he accurately instructed. Where there is sharp conflict in the testimony, it is important that the jury be accurately instructed.
    4. Insurance—what not question for jury under plea in har. In an action on a fire insurance policy which provided that the insured should, at the request of the insurer, submit to an examination on oath, held erroneous to leave it to the jury to determine under a plea in bar to the action as a question of fact whether questions which the insured refused to answer at such hearing were material to the issue, since, if the question had been material, it could only be taken advantage of by a plea in abatement of the writ.
    5. Insurance—what questions in examination of insured under terms of fire insurance policy material. On an extrajudicial examination of an insured, before a notary, conducted under the terms of a fire insurance policy providing therefor, only such questions are material as have a bearing on the insurance and the loss.
    F. M. Harbaugh and Charles B. Obermeyer, for defendant in error.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Minnie Schoenle, Plaintiff in Error, v. Great Eastern Casualty Company, Defendant in Error.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Insurance, § 122

      —when application not part of accident pot-icy. An application for an accident insurance policy, held not to have been made a part of a .policy stating that such application had been made a part thereof by indorsement thereon of a copy of such application, where such copy differed materially, as to facts stated, from the original application.
    2. Insurance, § 331*—when insurer may not forfeit policy. An insurance company cannot forfeit a policy for causes known to the agent at the time he issued it.

      Error to the County Court of Sangamon county; the Hon. Charles J. Gehlbach, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 13, 1915.
    Statement of the Case.
    Action under an accident insurance policy by Minnie Schoenle, plaintiff, against the Great Eastern Casualty Company, defendant, for death of the insured. To review a judgment against her, the plaintiff prosecutes a writ of error.
    The defendant company’s agent knew at the time of the issuance of the policy and making of the application that a policy formerly held by the applicant in another company had been canceled, which fact the applicant failed to mention in the proper space in the application.
    Andrus & Trutter, for plaintiff in error.
    T. J. Sullivan, 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 Graves

delivered the opinion of the court.

3. Insurance—when knowledge by agent of facts concerning applicant which are ground for forfeiture question for jury. In an action on. an accident insurance policy, held a question for the jury whether the agent knew facts concerning the applicant at the time of issuance of the policy which, had he not known them, would 'have been ground for forfeiture.

4. Insurance, § 686 —when manner of death of insured question for jury. In an action on an accident insurance policy, the question whether the insured was a temperate man and met his death by accident or as a result of alcoholism, held for the jury, the evidence being conflicting.