text:
    The People of the State of Illinois ex rel. Henry Stuckart, County Collector, and Robert M. Sweitzer, Clerk of the County Court of Cook County, Defendants in Error, v. Mrs. J. G. Campbell et al., Plaintiffs in Error.
    Gen. No. 21,794.
    1. Courts, § 32

      —invalidity of court rule as to appearance fees. A County Court rule providing that a separate appearance fee shall be paid by every property owner objecting to the sale of property on application for judgment by the county collector for delinquent general taxes, held to be contrary to section 33, ch. 53, Rev. St. (J. & A. If 5634), providing that the defendant or defendants, respondent or respondents, appellee or appellees shall pay $3 before he, she or they shall be entitled to enter his, her or their appearance or file any pleas, answer or demurrer in any suit at law or in equity, and to be void.
    2. Costs, § 58*—what is authority of clerk of court to tax. Costs were not taxable at common law, and the authority of the clerk of court to tax same is by virtue of the statute.’
    3. Costs, § 3*—how statutes relative to are construed. Statutes imposing costs are penal in character and strictly construed.
    4. Taxation, § 450*—what is nature of proceedings by county collector for judgment for delinquent taxes. The application of the county collector for judgment and order of sale for delinquent taxes is in the nature of an action at law, in which the publication provided by section 182 of the Revenue Act (J. & A. 1f 9401), is the process or summons; the judgment, sale, redemption and forfeiture record of the delinquent lands, required by section 188 of that Act (J. & A. If 9407), to be filed with the clerk of the court serves the office of a declaration, and the owners of the several tracts of such lands are the defendants.
    5. Taxation, § 492*—what is proper procedure as to judgment by county collector for taxes. While section 191 of the Revenue Act (J. & A. If 9410) requires that a judgment by the county collector for delinquent taxes shall be several, this has reference only to the manner of satisfying the judgment, to prevent holding the property of one person for the damages assessed against another, and the proper procedure is, after all objections have been disposed of, to enter one judgment and order of sale against the delinquent lands.
    6. Taxation—when different property owners may join in objections to application by county collector for judgment of sale for delinquent taxes. Where the same objections are made by each of the owners of the several tracts of land included in an application by the county collector for judgment and order of sale for delinquent general taxes to such application, and no contention is made that the objections are not applicable to the property of each, all such owners may properly join in such objections upon payment of a single appearance fee of $3.
    Error to the County Court of Cook county; the Hon. John H. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed March 8, 1917.
    Lloyd S. Bailey, for plaintiffs in error.
    Maclay Hoyne, for defendants in error.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this writ of error, plaintiffs in error seek to reverse the action of the County Court of Cook county in denying their motion to retax costs in the matter of the application of the county collector for judgment and order of sale of certain lands, for failure to pay the general taxes for the year of 1914.

The record shows that plaintiffs in error, thirty-six in number, by their counsel prepared objections to the application of the collector. These objections, nine in number, were set out in one paper or document. The document was presented to the county clerk for filing and $3 appearance fee tendered. The clerk refused to accept and file the document until an appearance fee of $3 for each objector, or $108 was paid. The clerk based his demand upon a rule then in force in the County Court, which is as follows:

“Rules on application for judgment in tax matters. Appearance fee—‘ General. ’
“Rule I. A separate appearance fee shall be paid by every property owner objecting to the sale of his property on application for judgment by the county collector for delinquent general taxes.”

After a hearing on the objections at the July term, they were sustained. At the August term, the objectors, plaintiffs in error, moved the court to retax the costs and require the clerk to refund to them $105, which motion was denied.

The authority of the clerk of the court in taxing costs is by virtue of the statute, as none were taxable at common law. Fish v. Farwell, 33 Ill. App. 242; Brueggemann v. Young, 128 Ill. App. 200; Roby v. Chicago Title & Trust Co., 194 Ill. 228. Statutes imposing costs are to be strictly construed, since they are penal in their character. Gehrke v. Gehrke, 190 Ill. 166. The authority for the imposition of costs in a proceeding such as the one at bar is derived from section 33, ch. 53, Rev. St. (J. & A. ¶ 5634). That section, so far as material in this case, provides:

“And the defendant or defendants, respondent or respondents, appellee or appellees, before he, she or they shall be entitled to enter his, her or their appearance or file any pleas, answer or demurrer in any suit at law or in equity shall pay to the clerk of the court the sum of three dollars to be taxed as costs in the suit, which * * * shall be in full payment of and for all services rendered, or to be rendered by the clerk, for or on behalf of the defendant or defendants,” etc.

The application of the county collector for judgment and order of sale for delinquent taxes is in the nature of an action at law. The publication provided for in section 182 of the Revenue Act (J. & A. ¶ 9401) is the process or summons, Fortman v. Ruggles, 58 Ill. 207. The judgment, sale, redemption and forfeiture record of the delinquent lands, required to be filed with the clerk of the court by section 188 of the Revenue Act (J. & A. j[ 9407), serves the office of a declaration. Wiggins Ferry Co. v. People, 101 Ill. 446. The owners of the several tracts of delinquent land, and for which judgment and order of sale are asked, are the defendants. The proper procedure is, after all objections have been disposed of, to enter one judgment and order of sale against the delinquent lands; and, while it is true that the statute (section 191 of the Revenue Act, J. & A. ¶ 9410) declares that such judgment shall be several, this has reference only to the manner of the satisfaction of the judgment, so as to prevent the judgment from holding property of one person for damages assessed against another. People v. Gary, 105 Ill. 332. Each of plaintiffs in error made the same objections to the application of the collector, and there is no contention that the objections were not applicable to the property of each. Under these circumstances it was proper that they all join in such objections. People v. Keener, 194 Ill. 16; People v. Welch, 252 Ill. 167.

In the Welch case, supra, the court said, p. 170:

“The principal contention of the appellee in support of the action of the court in sustaining the motion to strike the objections is, that the several landowners did not have the right to join in making the objections, for the reason that their interests are not identical and that they have no joint interest in the lands sought to be sold. It appears from the application for judgment and sale that the objectors, owned separate tracts of land. They all joined in the objections, and under the holding in People v. Keener, 194 Ill. 16, this was a proper method of procedure, provided all the objections made applied to the lands of each of the objectors. In that case, in passing upon the question whether, in such a proceeding as this, different owners may properly join in the objections, we said: ‘Where the objections are identical, and in the absence of anything to show that confusion or embarrassment will be produced by their being permitted to do so, we see no substantial reason for holding that they may not so join. To hold otherwise would often, in effect, produce a multiplicity of suits and cause delay and unnecessary expense without corresponding benefits.’ Unless it should be apparent from the objections themselves, when considered in connection with the application, that confusion or embarrassment would be produced by permitting the objectors to join, the court would not be warranted in sustaining a motion to strike them upon that ground.”

We think this decision of the Supreme Court is authority for plaintiffs in error to join in filing their objections, and under section 33 of the statute above quoted (J. & A. ft 5634), they were entitled to file them upon the payment of an appearance fee of $3. The rule, therefore, of the County Court above set forth is contrary to said section 33, and is void.

The judgment of the County Court is reversed and the cause remanded with directions to retax the costs in accordance with the views herein expressed.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Anna Bradley, Appellee, v. Siegfried (alias Sigmund) Schrayer, Appellant.
    Gen. No. 21,810.
    (Not to be reported in full.)
    Abstract of the Decision.
    Breach of marriage promise, § 22

      —when instruction is erroneous. In an action to recover damages for breach of a contract of marriage, an instruction that the jury should find for the plaintiff if they believed from the evidence that there was a contract of marriage between the parties, and the defendant failed to carry out the contract “without good and legal cause therefor,” and plaintiff was damaged by reason of such failure, heló, to be erroneous in leaving the jury to determine what was a good and legal cause which would warrant the defendant in refusing to marry the plaintiff, as that was a question of law for the court and not one of fact for the jury.
    Appeal from the Superior Courrt of Cook county;" the Hon. Mabcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 8, 1917.
    Statement of the Case.
    Action by Anna Bradley, plaintiff, against Siegfried (alias Sigmund) Schrayer, defendant, to recover damages for breach of a contract of marriage. From a judgment for plaintiff for $5,000 on remittitur, defendant appeals.
    Alexander H. Heyman, for appellant. .
    Leslie H. Whipp, for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Andrew Rybarczyk, Appellee, v. John Weglarz, Appellant.
    Gen. No. 21,852.
    1. Justices of tab peace, § 175

      —when appeal is not perfected. Where the docket of a justice of.the peace failed to show any appeal bond was filed in a case decided by him, and none was in fact filed, although one had been approved by the justice and delivered with a transcript of the judgment to the party applying for the same, who thereafter filed such bond and transcript in the Circuit Court, held that no appeal was taken, and a. judgment entered by the Circuit Court upon such filing was without jurisdiction of the parties or of the subject-matter and void.
    2. Judgment, § 298*—when may he set aside after term. A trial court has power to set aside a void judgment after the term at which it was entered.
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed March 8, 1917.
    Walter H. Eckert, for appellant.
    William Sherman Stahl, for appellee; Stanley C. Armstrong, of counsel.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Andrew Rybarczyk brought suit before a justice of the peace in and for the Town of Elk Grove, Cook county, Illinois, against John Weglarz for $175. The case was tried November 14, 1914, and a judgment was entered in favor of the plaintiff for $10. After-wards, and within twenty days, plaintiff had an appeal bond approved by the justice and obtained a transcript of the proceedings. The bond was not filed with the justice, but it, together with the transcript, was taken by the plaintiff and, on December 2, 1914, filed by him in the office of the clerk of the Circuit Court of Cook county. January 27,1915, the cause came on for hearing before the Circuit Court. The defendant was defaulted and there was a finding and judgment in favor of the plaintiff for $184.75. After the expiration of the term of court at which the judgment was entered, an execution was levied on defendant’s property. On the next day defendant moved the Circuit Court to vacate the judgment and for leave to defend, and in support of this motion submitted the affidavits of himself and the justice of the peace.

The justice swears that on November 4, 1914, after a full hearing, he entered judgment in favor of the plaintiff for $10; that there was no appeal taken at that time; that afterwards the defendant came to his court and paid the amount of the judgment to him; that a few days prior to such payment, the plaintiff asked for a transcript of the record and for the approval of an appeal bond; that he approved the appeal bond; that it was never filed with him, but it, together with the transcript of the record, was taken and retained by the plaintiff; that plaintiff at that time stated that he retained the bond and transcript for the reason that he might afterwards decide to appeal from the judgment, but that he had not then decided whether he would appeal; that at the time defendant paid the judgment, the justice told him that the bond had not been filed and the case had not been appealed; that if the plaintiff should appeal he would notify the defendant.

The defendant in his affidavit swears that, at the time the judgment was entered against him for $10, no appeal was taken; that he afterwards paid the justice $10 who stated that he would satisfy the judgment and turn the money over to the plaintiff; that he again saw the justice who stated that he had sent a check to the plaintiff in payment of the judgment and that the judgment was satisfied; that the defendant heard nothing further in the matter until the execution was levied by the sheriff, February 15, 1915; that the records of the justice did not show that any appeal bond had been filed; that he had no way of determining whether an appeal had been taken, except by an examination of the justice’s docket and interviewing the justice. The affidavit further set up a meritorious defense.

Plaintiff filed a counter-affidavit, wherein he sets forth that before he filed the bond and transcript in the office of the clerk of the Circuit Court, he called on the justice of the peace with his bondsman; that the justice approved the bond and at the same time delivered to him the transcript of the judgment; that he told the justice at that time he was going to appeal the case and furnished the bond for that purpose. The affidavit further set up that the defendant was indebted to the plaintiff in the amount of the judgment entered by the Circuit Court.

The court refused to set aside the judgment, evidently on the ground that the term at which the judgment was entered having expired the court had lost jurisdiction.

A justice of the peace is required by statute to keep a docket showing a record of all proceedings that had been before him. (Paragraph 7021, J. & A. Statutes.)

Paragraph 6976, J. & A. Statutes, provides that appeals may be granted upon the filing of a bond with the justice of the peace, and that when such bond is so filed “the justice shall return all the papers in the case and a transcript of his docket in the case to the clerk of the court to which the appeal is taken, with a certificate under his hand that said transcript and papers contain a full and perfect statement of all the proceedings before him.”

The transcript of the justice’s docket does not show that the appeal bond was filed. In fact the affidavit of the defendant and of the justice of the peace specifically state that the bond was not filed with the justice, and this was not denied by the plaintiff in his affidavit. Where an appeal is perfected before the justice of the peace, both parties are required to follow the appeal without further notice, no summons or process of any kind being required. The only way in which a party can determine whether an appeal has been taken is by an examination of the docket of the justice of the peace. The justice’s docket having failed to show that any appeal bond was filed, and the same in fact not having been filed, no appeal was taken. The Circuit Court therefore acquired no jurisdiction of the parties or of the subject-matter, and the judgment entered against the plaintiff for $184.75 was void. The court has power to set aside a void judgment after the term at which it was entered has expired. Keeler v. People, 160 Ill. 179; Prouty v. Moss, 111 Ill. App. 536. It necessarily follows that the Circuit Court erred in refusing to set aside the judgment, and for such error, the judgment must be reversed, but as no appeal was ever perfected, it will not be necessary to remand the cause. The judgment of the Circuit Court is reversed.

Reversed.


text:
      A. W. Curran, Appellant, v. Emma C. Good, Appellee.
    Gen. No. 21,865. Gen. No. 21,931.

      1. Judgment, § 347

      —what degree of proof is required in bill to enjoin collection of judgment. Where a bill is filed to enjoin the collection of a judgment and award a new trial on the ground of want of service of process and the lack of service does not appear on the face of the record, the evidence to sustain such want of service must be clear and satisfactory.
    2. Judgment, § 336*—when equity will not interfere to prevent enforcement of. A court of equity will not interfere to prevent the collection of a judgment even though it was rendered without service of process unless a meritorious defense is shown.
    3. Judgment, § 347*—when burden of proof is on party seelcing to enjoin collection of. In a suit to enjoin the collection of a judgment for lack of service • of process, the complainant has the burden of proving such lack of service and also of showing a meritorious defense.
    4. Judgment, § 347*—when evidence is sufficient to sustain finding that complainant had not established lack of service of process. The finding of the trial court that the complainant had not established the lack of service of process upon him in an action at law in which judgment was entered against him, or shown he had a meritorious defense in such action, or that a different result would be had if a new trial were awarded, or that such judgment was shown by a preponderance of the evidence to be excessive, held not manifestly against the weight of the evidence, in a suit to enjoin the collection of such judgment on the ground of lack of service of process in such action.
    5. Judgment, § 347*—when evidence of parties is admissible upon merits of defense to action in which judgment was rendered. In a suit to enjoin the collection of a judgment and award a new trial on the ground of lack of service of process, evidence of both parties would be admissible upon the merits of complainant’s defense to the action in which such judgment was rendered.
    6. Appeal and ebbob, § 450*—when contention as to admissibility of evidence may not be made. A contention as to the admissibility of evidence not made in the trial court cannot be made for the first time on review.

      Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 8, 1917.
    Foster, Paine, Reynolds & Sass, for appellant.
    A. H. Ranes, for appellee; Harry F. Brewer, of counsel.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Cook county dismissing a bill for want of equity. A. W. Curran filed a bill against Emma C. Good, which sought to enjoin the collection of a judgment recovered against him, and to have a new trial awarded.

It appears from the evidence that on December 4, 1912, the defendant brought an action against the complainant to recover damages for personal injuries; that complainant was defaulted and judgment entered against him for $1,700. Complainant moved the court to set aside the judgment, but the motion was denied, and thereupon this bill was filed. After issue joined, the cause was heard before the chancellor, and a decree entered dismissing the bill for want of equity.

The bill sought to set aside the judgment on the ground that no service of process was had on the complainant in the action for personal injuries. Where a bill is filed to enjoin the collection of a judgment and award a new trial on the ground of want of service of process and the lack of service does not appear on the face of the record, the evidence to sustain such want of service must be clear and satisfactory. Davis v. Dresback, 81 Ill. 393; Kochmam v. O’Neill, 202 Ill. 110. And the law is equally well settled in this State that courts of equity will not interfere to prevent the collection of a judgment, even though it was rendered without service or process, unless a meritorious defense be shown. Colson v. Leitch, 110 Ill. 504; Reed v. New York Nat. Exch. Bank, 230 Ill. 50. And the burden of proof on each of these propositions is upon the complainant. The law as above stated is not disputed, but the complainant contends that he has met the requirements of the law in this regard; that he has shown by clear and satisfactory evidence that the return of the sheriff showing service was untrue, and that he had a meritorious defense.

The chancellor saw and heard the witnesses in open court and found that the complainant had not established by clear and satisfactory evidence that he had not been served with process in the action at law, and also that he had not shown a meritorious defense, or that there would be a different result if a new trial were awarded, and that he had not shown by a preponderance of the evidence that the judgment in the action at law was excessive. It would serve no useful purpose to set forth an analysis of the evidence, but after a careful consideration of all the evidence in the record, we cannot say that "the finding of the chancellor is manifestly against the weight of the evidence.

Counsel for complainant place great reliance on the case of Kochman v. O’Neill, supra. The testimony in that case was substantially the same as in the case at bar, and the court sustained a decree enjoining the collection of a judgment. The principal point of difference between the two cases, however, is that the chancellor, who saw and heard the witnesses, found that the complainant there proved by clear and satisfactory evidence that no service was had in the action at law, while in the case at bar the chancellor found to the contrary.

Complainant further contends that it was error to permit the defendant to introduce evidence tending to disprove that the complainant had a meritorious defense to the action at law, the argument being that the complainant in such case is only required to show a prima facie defense on the merits; that the proceeding is similar to a motion to set aside a default judgment where counter-affidavits are not permissible on the question as to whether there is a meritorious defense. We think that the rule is not as contended for. In Colson v. Leitch and Reed v. New York Nat. Exch. Bank, supra, it was clearly held that even where there was no service of process in an action at law, the judgment would not be set aside in a suit in equity, unless it was shown that there would be a different result in 'the action at law upon another trial. This of course could not be determined without hearing evidence on behalf -of both parties. This contention of complainant, however, is not properly before us, because no such point was urged or intimated in the trial court, and it is elementary that it cannot be raised for the first time in a court of review.

Finding no substantial error in the decree of the Circuit Court of Cook county, it will be affirmed.

Affirmed.


text:
    George E. Dierssen et al., Appellees, v. Williamsburg City Fire Insurance Company, Appellant.
    1. Assignments—when judgment is properly rendered in favor of assignee of cause of action. In an action brought in the Municipal Court by three plaintiffs, where,, after verdict in their favor and pending a motion for a new trial, they assigned their interest in the case, and the assignments were filed with the clerk of the court, and, on motion by two of such plaintiffs, the assignee was substituted, without objection by the defendant, for the third plaintiff, and thereafter the motion for a new trial was denied and judgment was entered on the verdict, held that the judgment was not erroneous, notwithstanding the assignments filed with the clerk may not have been brought to the attention, of the 'trial judge, as contended, or that the assignee was not substituted also for the other two plaintiffs.
    2. Time, § 1

      —how computed. The proper mode of computing time where an act is to be performed within a particular period from or after a specified day is to exclude the day named and include the day on which the act is to be done.
    3. Time, § 2*-—when Sunday excluded in computing. Where the last day specified in a contract within which an act is to be performed falls on Sunday, that day also is excluded, under Rev. St. ch. 131, sec. 1, par. 11 (J. & A. If 11102), and Rev. St. ch. 100, sec. 6 (J. & A. H 7860), in computing the time when such act is to be performed, and performance’ of such act on the following day would be in apt time.
    4. Insurance, § 441*—what constitutes waiver' of provision in policy for filing of proofs within specified time after loss. Where, upon a loss accruing under an insurance policy, negotiations for adjustment were begun by the insurer prior to the filing of proofs of loss and were continued after same were filed, without objection that such proofs had not been filed in time, held that there was a waiver by the insurer of the provision of the policy that such proofs should be filed within a specified time after loss.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 8, 1917.

      Schuyler & Weinfeld, for appellant.
    Beach & Beach and Laurence Jacobs, for appellees.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Doctors William E. Code and Wálter A. Code and Ben E. Dyer brought suit against the Williamsburg City Fire Insurance Company on a policy of insurance covering certain personal property. The case was tried before the court without a jury and there was a finding in favor of the plaintiffs for $1,064.38. Pending the motion for a new trial, plaintiffs assigned their interest in the suit to appellee Greorge E. Dierssen. These assignments were filed with the clerk of the Municipal Court, and afterwards, on motion of the plaintiffs, an order was entered amending all records, papers and proceedings by substituting Greorge E. Dierssen in place of Ben E. Dyer. The motion for a new trial was then overruled and judgment entered.

No evidence was offered on behalf of the defendant, but at the close of plaintiffs’ case the defendant moved for judgment in its favor, which motion was overruled. No complaint is made that the policy did not cover the property in question, nor as to the amount of the judgment.

The defendant first contends that the judgment is erroneous, in that it is not in favor of the proper parties, the argument being that the assignments to appellee Dierssen filed with the clerk of the court were not brought to the attention of the trial judge, and no evidence was introduced or could properly be introduced in reference to them, and therefore the substitution of appellee Dierssen for Dyer was erroneous. A further contention is made that, even if the assignments were properly before the court, the judgment is erroneous in that while it shows an assignment from the Doctors Code to Dierssen, he was not substituted in their stead. The record shows that the substitution was made by the court on motion of the plaintiffs and no objection was made by the defendant. Whether the assignments were properly before the court is immaterial. We must assume that the court had sufficient facts before it to warrant the substitution. The record clearly shows that the suit was predicated on a particular insurance policy, which was offered in evidence, and there can be no contention that the defendant can in any way be affected by the substitution.

The defendant next contends that there is reversible error in the record, because proofs of loss were not filed “within sixty days from the time of the fire,” as provided in the policy. While the policy was introduced in evidence, it is not contained in the record, so we are unable to determine the exact provision in this regard. But if we assume that the statement made in defendant’s affidavit of merits is' correct, i. e., that the policy provided that proofs of loss should be made “within sixty days from the time of the fire,” we are clearly of the opinion that defendant’s contention cannot be maintained. The fire occurred September 18th, and the proofs of loss were filed November, 18th.

The defendant argues that under the common law, which it contends is applicable to this case, the proper method of computing the time is to include the day on which the fire occurred, and the sixtieth day, although it fell upon a Sunday, should be included also. Defendant has not cited any case sustaining this contention. It has long been firmly established in this State that the proper mode of computing time when an act is to be performed within a particular period from or after a specified day is to exclude the day named and include the day on which the act is to be done. Ewing v. Bailey, 5 Ill. (4 Scam.) 420; Protec tion Life Ins. Co. v. Palmer, 81 Ill. 88; Pugh v. Reat, 107 Ill. 440; United States Mut. Acc. Ass’n v. Mueller, 151 Ill. 254; Colonial Mut. Fire Ins. Co. of Philadelphia v. Ellinger, 112 Ill. 302; Cummins v. Holmes, 11 Ill. App. 158.

In Ewing v. Bailey, supra, the court in passing on the question whether an appeal had been properly taken from a judgment rendered by a justice of the peace, said (p. 421): “The proper mode of computing time, where an act is to be performed within a particular period from or after a specified day, is to exclude the day named, and include the day on which the act is to he done.”

The Palmer case, supra, was an action on a life insurance policy. In determining whether the assured was delinquent in the payment of his assessments, the condition of the policy being that payment must be made within thirty days from the date of notice of' the assessment, it was held the day on which the notice was received should be excluded.

The Ellinger case, supra, was an action brought on a fire insurance policy. It was there held that in the computation of time within which suit should he brought after á specified time, the day named is to he excluded and the day on which the act is to be done should be included. The court said (p. 307): “The question therefore arises, was the suit commenced within the time thus stipulated? In this State the proper mode of computing time when an act is to be performed within a particular period from or after a specified time, is to exclude the day named and include the day on which the act is to be done. Ewing v. Bailey, 4 Scam. 420.”

The same rule was again stated in the Mueller case, supra, which was an action in assumpsit on a life insurance policy.

Following the rule announced in these cases and excluding the day on which the fire occurred, September 18th, the sixtieth day thereafter would be November 17th, and it appears that this day was Sunday.

Paragraph 11, see. 1, eh. 131, Rev. St. (J. & A. Ti 11102) provides: “The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday, and then it also shall be excluded.” Section 6, eh. 100, Rev. St. (J. & A. ¶ 7860) provides: “In computing the time for which any notice is to be given, whether required by law, order of court or contract, the first day shall be excluded and the last included, unless the last day is Sunday, and then it also shall be excluded.”

We think the two sections just quoted are controlling, and the same rule of computing time applies even in the absence of statute. Endlich on Interpretation of Statutes, sec. 393; 2 Benjamin on Sales, 893, note: English v. Williamson, 34 Kan. 212; Edmundson v. Wragg, 104 Pa. St. 500; 2 Wharton on Contracts, sec. 897.

Excluding Sunday, the plaintiffs would have all day of the 18th of November in which to file their proofs of loss, and the proofs having been made on that date, they were in apt time.

Furthermore, the evidence shows that shortly after the fire a representative of the defendant attempted to adjust the loss with plaintiffs; that .negotiations continued until a day or two before the proofs of loss were filed; that after the proofs were filed, further negotiations of the same character were had, and it does not appear that any objection was made that the proofs had not been filed within the time provided for. The trial court held that there was a waiver of the provision requiring proofs to be filed within sixty days after the fire, and we are of the opinion that the court was justified in so holding.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


text:
    George E. Dierssen et al., Appellees, v. National Ben Franklin Fire Insurance Company, Appellant.
    Gen. No. 21,932.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 8, 1917.
    Statement of the Case.
    Action by George E. Dierssen et al., plaintiffs, against National Ben Franklin Fire Insurance Company, defendant, to recover on an insurance policy for a loss thereunder. From a judgment for plaintiffs for $1,596.57, defendant appeals.
    Judgment affirmed on stipulation of parties that the decision of the Appellate Court in an action by Dierssen v. Williamsburg City Fire Insurance Co., ante, p. 240, which was affirmed, should govern.
    Schuyler & Weinfeld, for appellant.
    Beach & Beach and Laurence Jacobs, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    George E. Dierssen et al., Appellees, v. Albany Insurance Company, Appellant.
    Gen. No. 21,933.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 8, 1917.
    Statement of the Case.
    Action by George E. Dierssen et al., plaintiffs, against the Albany Insurance Company, defendant, to recover on an insurance policy for a. loss' thereunder. From a judgment for plaintiffs for $1,064.38, defendant appeals.
    Judgment aErmed on stipulation of parties that the decision of the Appellate Court in an action by Dierssen v. Williamsburg City Fire Insurance Co., ante, p. 240, which was. aErmed, should govern.
    Schuyler & Weinfeld, for appellant.
    Beach & Beach and Laurence Jacobs, for appel- . lees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Edward Thompson, Defendant in Error, v. John Gibson Hale, Plaintiff in Error.
    Gen. No. 22,059.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court op Chicago, § 31

      —when judgment should "be affirmed. Where, after a judgment in the Municipal Court on trial by the court without a jury, a motion to set aside the judgment was filed, and denied, with a “statement of the case” showing the proceedings and assignments of errors had on such motion, which the Appellate Court struck from the files, held that the judgment should be affirmed on motion.
    Error to the Municipal Court of Chicago; the'Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed March 8, 1917.
    Statement of the Case.
    Action by Edward Thompson, a corporation, plaintiff, against John Gibson Hale, defendant, to recover the purchase price of certain books. From a judgment for plaintiff, defendant brings error.
    John Gibson Hale, pro se.

    Berkley, More & Tallmadge, for defendant in error.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Goodwin

text:
    Abraham Silbar, Defendant in Error, v. Frank W. Engwald, Plaintiff in Error.
    Gen. No. 21,727.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1410

      —when verdict not set aside as against manifest weight of evidence. Where the only witnesses in a case were the two parties thereto whose testimony was contradictory, held that it would be impossible to say the finding was against the manifest weight of the evidence.
    Error to the Municipal Court of Chicago; the Hon; Patrick B. Flanagan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 8, 1917.
    Statement of the Case.
    Action by Abraham Silbar, plaintiff, against Frank W. Engwald, defendant, to recover rent under a lease. From a judgment for plaintiff, defendant brings error.
    P. J. Tuohy, for plaintiff in error.
    Morris Loeff and Herman Herson, for defendant in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    William B. Prouty, Defendant in Error, v. Julian Armstrong, Plaintiff in Error.
    Gen. No. 21,742.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Order reversed and cause remanded.
    Opinion filed March 8, 1917.
    Statement of the Case.
    Action by William B. Prouty, plaintiff, against Julian Armstrong, defendant, in which judgment for $190 was taken by confession under power of attorney contained in a lease. From a denial of a motion by defendant to open up the judgment and for leave to plead, defendant brings error.
    The lease contained the stipulation: “Lease is drawn subject to the attached further agreement signed by both parties to this lease. The lease is made subject to the following:” followed by eleven items of improvements to be made by the lessor by a certain date. The defendant set up in his motion that the improvements referred to were not completed until two months. after the specified date, that the premises were not ready for occupancy until the end of said two months, and that the defendant was damaged as a result of such failure of the plaintiff to comply with his covenants to the amount of $243.
    Eastman & White, for plaintiff in error; Ralph R. Hawxhurst, of counsel.
    Frank N. Reed, for defendant in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Judgment, § 72 —what should he considered as a defense on motion to open up judgment by confession. . On a motion to open up a judgment by confession for rent on a lease and for leave to plead, the court should consider like any other defense an allegation of damages on account of the plaintiff’s failure to keep certain covenants on his part in the lease set up by the defendant as a matter of recoupment only.

2. Judgment, § 56*—when judgment by confession should he opened up. A defendant to a judgment by confession- taken under a power of attorney contained in a written lease should be permitted to open up the judgment where he presents an affidavit showing that by reason of the plaintiff’s failure to comply on his part with the lease the -defendant is entitled not merely to defeat the action but to recover a judgment against the plaintiff.

3. Judgment, § 88*—when writ of error lies to review overruling of motion to open up judgment by confession. Where a cognovit waives all errors in a judgment taken by confession, a writ of error will not lie to review the judgment itself, but where timely motion is made to set it aside, such writ will lie to review the overruling of such motion.


text:
    Benjamin Brook (James P. Pio, Defendant in Error), v. George F. Smerling and Fred Smerling, Plaintiffs in Error.
    Gen. No. 21,752.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed except as to plaintiff’s costs.
    Opinion filed March 8, 1917.
    Rehearing denied March 26, 1917.
    Statement of the Case.
    Action by Benjamin Brook, plaintiff, against George F. Smerling and Fred Smerling, defendants, to recover for personal injuries alleged to have resulted from defendants’ negligence. From a judgment for James P. Pio, petitioner, for an attorney’s lien for three hundred dollars, defendants bring error.
    Abstract of the Decision.
    1. Appeal and error, § 1301

      —when presumed that evidence is sufficient to sustain finding of court. It must be presumed that the evidence is sufficient to sustain the finding of the court in the absence of a bill of exceptions.
    2. Trial, § 2*—when attorney deemed to have due notice of time ease is set for hearing on application. Where an attorney had timely and actual notice of the fact that an application to have a case set for hearing would be made to the court on a certain day and was fully advised of a change in the time of making such application and made no objection to it, held that the attorney should be considered as having been duly notified of the time the case was set for hearing on such application, notwithstanding the question whether the applicant had agreed to inform such attorney of such time.

      The petitioner was attorney for the plaintiff in the action and filed his petition alleging that notice of his attorney’s lien had been served upon the defendants, and that a settlement of the action had been made with the plaintiff without the knowledge or consent of the petitioner. Upon motion by the defendants to vacate the judgment for the petitioner, the court announced the judgment would be set aside upon the defendants paying fifty dollars attorney’s fee, to which the petitioner objected. Time for such payment was given and extended, and upon expiration of the extended time the court vacated the order setting aside the judgment upon payment of fifty dollars attorney’s fee, on account of the defendants’ failure to pay that amount.
    Josiah Burnham, for plaintiffs in error.
    Jambs P. Pío, pro se.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

3. Judgment—when court may impose terms upon vacation of. Where a judgment for the petitioner was rendered upon a petition for an attorney’s lien, held that it would be within the discretion of the judge to impose terms upon vacation of a judgment in favor of the petitioner.

4. Judgment—when party estopped to object against imposition of terms upon vacation of. Where counsel for a party seeking to vacate a judgment against him stated in open court that an order vacating the judgment upon payment by such party of a certain sum as attorney’s fee was satisfactory to him, held that such party would not be in a position to object that it was not within the discretion of the judge to impose such terms upon the vacation of the judgment.

5. Attobney and client—when client’s costs may not be included in judgment for attorney petitioning for lien. The plaintiff’s costs in a case may not be included in a judgment for the petitioner on a petition filed in the case by the plaintiff’s attorney for an attorney’s lien.


text:
    Michael D. Harnett, Defendant in Error, v. City of Chicago, Plaintiff' in Error.
    Gen. No. 21,790.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John C. Wokk, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed March 8, 1917.
    Statement of the Case.
    Action by Michael D. Harnett, plaintiff, against City of Chicago, defendant, to recover the difference between the salary of a patrolman and that of a sergeant in the police service of the defendant during the interim in which he was acting as a patrolman after demotion as a sergeant. From a judgment for plaintiff for $937.50, defendant brings error.
    Abstract of the Decision.
    1. Officers, § 68

      —what must "be proved by party seeking to recover salary of office. Where a party seeks to recover the salary of an office, he must show the legal existence of the office and his right to hold it.
    2. Municipal corporations, § 134*—what ordinance of City of Chicago did not create position of sergeant in police department. The ordinance of April 18, 1881, of the City of Chicago, creating the police department and certain positions, did not create the position of detective sergeant, patrol' sergeant, desk sergeant, or sergeant, hy the use of the words “such number of lieutenants, detective sergeants, patrol sergeants, desk sergeants, patrolmen, and other employees as may be provided hy ordinance,” but left such positions to he thereafter created by ordinance.
    3. Municipal corporations, § 134*—how office of police sergeant in City of Chicago not created. The Act of 1863 relating to the charter of the City of Chicago did not create the office of sergeant of police.

      The plaintiff was certified by the Civil Service Commission as eligible for the position of police sergeant March 18,1907, when he was appointed as sergeant and acted as such to February 17, 1908. He was then demoted to police patrolman, and acted as such to August 9, 1911, when he was promoted to detective sergeant, and acted thereafter for two years as patrol sergeant and one year as desk sergeant.
    Samuel A. Ettelson, for plaintiff in error; Boy S. Gaskill and George A. Curran, of counsel.
    A. G. Dicus, for defendant in error.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

4. Municipal corporations, § 134 —how office of police sergeant is not created. The office of sergeant of police was not created by the sixty-sixth and sixty-eighth clauses of section 1 of article V of the Cities and Villages Act [J. & A. tf 1334(66), 1334(68)].

5. Municipal corporations, § 131*—when ordinance is not controlling as to demotion of police officer. Section 1909 of an ordinance of April 1, 1911, of the City of Chicago, is not controlling as to a demotion of a police officer from sergeant to patrolman on February 17, 1908, as such ordinance was not in effect at the time of such demotion.


text:
    Stephen J. Barry, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 21,769.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Patrick B. Flanagan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed March 8, 1917.
    Statement of the Case.
    Action by Stephen J. Barry, plaintiff, against City of ‘Chicago, defendant, to recover the difference between the salary of one police office and that of another in the police service of the defendant during the interim in which he was acting as a minor officer after demotion as a major officer. From a judgment for plflintiff for the difference in amount, defendant brings error.
    This case is governed by the decision in Harnett v. City of Chicago, ante, p. 252, the facts being similar, and the judgment is reversed.

      Samuel A. Ettelson, for plaintiff in error; Boy S. G-askill and George A. Curran, of counsel.
    A. G. Dicus, for defendant in error.
   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Patrick Woods, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 21,770.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. D. H. Wamseey, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed March 8, 1917.
    Statement of the Case.
    Action by Patrick Woods, plaintiff, against City of Chicago, defendant, to recover the difference between the salary of one police officer and that of another in the police service of the defendant during the interim in which he was acting as a minor officer after demotion as a major officer. From a judgment for plaintiff for the difference in amount, defendant brings error.
    This case is governed by the decision in Harnett v. City of Chicago, ante, p. 252, the facts being similar, and the judgment is reversed.
    Samuel A. Ettelson, for plaintiff in error; Boy S. Gaskill and George A. Curran, of counsel.
    A. G. Dious, for defendant in error.
   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Effie C. Kuebler, Appellee, v. George J. Kuebler, Appellant.
    Gen. No. 21,883.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 8, 1917.
    Rehearing denied March 28, 1917.
    Statement of the Case.
    Suit by Effie C. Kuebler, complainant, against George J. Kuebler, defendant, for divorce on the ground of extreme and repeated cruelty, for the conveyance of certain property, and for alimony and solicitor’s fees. From a decree for divorce and for alimony and solicitor’s fees, based upon an agreement between the parties, defendant appeals as to that part of the decree which relates to alimony and solicitor’s fees.
    Complainant in her bill claimed that certain property standing in the name of the defendant should be decreed to be hers in equity and good conscience. The defendant in his answer denied the charges ánd complainant’s title to the property, and filed a cross-bill for divorce for desertion, which complainant denied. The master to whom the case was referred reported the complainant’s interest in the property amounted to $481.40, which had subsequently been paid her, and that the property stood in the defendant’s name, subject to a trust for $3,000 and complainant’s dower interest, and that the household furniture belonged to the defendant, with exceptions; and he reported that the bill be dismissed as to the property. On trial by a jury, the defendant was found guilty and the cross defendant not guilty. Thereafter, in open court an agreement was made between the parties that the complainant would vacate the property occupied by her as a homestead and that the defendant would pay her $100 a month alimony and her solicitor’s fees of $400, and the court directed a decree to be prepared accordingly. The complainant vacated the property. She filed no exceptions to the master’s report. Thereafter the decree as directed was presented in court, and the defendant presented objections as to alimony and solicitor’s fees fixed therein in accordance with the agreement as excessive, unreasonable and beyond his financial ability.
    Abstract of the Decision.
    Divorce, § 64

      —when party estopped to repudiate terms of decree hosed upon agreement. A court of equity will not permit a party to enter into an agreement in regard to the terms of a decree of divorce and, after receiving the benefit to be derived from it, repudiate it.
    Albert H. Fry, for appellant.
    Charles M. Haft, for appellee.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Effie C. Kuebler, Appellee, v. George J. Kuebler, Appellant.
    Gen. No. 22,695.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Habby C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed March 8, 1917.
    Rehearing denied March 28, 1917.
    Statement of the Case.
    Suit by Effie C. Kuebler, complainant, against George J. Kuebler, defendant, for divorce, alimony and solicitor’s fees. Prom an order entered after a decree for divorce, alimony and solicitor’s fees from which the defendant had appealed as to that part thereof which related to alimony and solicitor’s fees, awarding complainant one hundred dollars a month alimony pending such appeal and' a certain amount for which the defendant was in arrears under said decree, and two hundred dollars to enable complainant to employ counsel, defendant appeals.
    The decree as to alimony and solicitor’s fees was entered by the court in accordance with an agreement between the parties as set forth in Kuebler v. Kuebler, ante, p. 256, and upon consideration of the defendant’s affidavit in regard to his expenses and disbursements covering a period of seventy-nine months prior to the entry of said decree. The proceedings before the master showed that after the decree was entered the defendant was sued by his brother for what was claimed to be the joint debt of himself and complainant, and that he permitted himself to be defaulted, and actively assisted- his brother in the "trial of that suit against complainant, in which the jury found in her favor. The defendant, however, turned the real estate in question over to his brother in satisfaction of the judgment thus obtained against him by default, and the master found the defendant had unnecessarily disposed of his interest in the property.
    Abstract of the Decision.
    Divorce, § 101

      —when .evidence is sufficient to sustain order of court as to alimony and solicitor's fees. The evidence in regard to the circumstances of the parties held to support the order of the court as to alimony and solicitor’s fees, in a suit for divorce and for alimony and solicitor’s fees.
    Albert H. Fry, for appellant.
    Charles M. Hart, for appellee.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Effie C. Kuebler, Appellee, v. George J. Kuebler, Appellant.
    Gen. No. 22,986.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Chables M. Thompson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 8, 1917.
    Rehearing denied March 28, 1917.
    Statement of the Case.
    Suit by Effie C. Kuebler, complainant, against George J. Kuebler, defendant, for divorce, alimony and solicitor’s fees. From an order committing the defendant for contempt for failing to comply with an order for allowance of suit money and solicitor’s fees, defendant appeals.
    Abstract of the Decision.
    1. Divorce, § 121

      —when evidence sufficient to show ability of defendant to comply with order for allowance of suit money and, solicitor’s fees. Where the court in committing a defendant for contempt in failing to comply with an order for allowance of suit money and solicitor’s fees in a suit for divorce had before it the facts heretofore recited in the opinions of the Appellate Court sustaining such order and the original decree allowing alimony and solicitor’s fees, held that the court was justified in finding against the defendant upon the question of his ability to comply with the terms of such order, notwithstanding his affidavit stating his income had been insufficient to meet his necessary office expenses, maintain his practice, and live respectably, and comply with the order.
    2. Divorce, § 118*—when defendant is guilty of contempt in failing to comply with order for allowance of suit money and solicitor’s fees. Where the defendant in a suit for divorce after having agreed upon the amount of alimony and solicitor’s fees and having received the benefit of the decree had done all in his power to prevent the complainant in such suit from receiving the sums to which the court had decreed she was entitled, had transferred his real estate in question in such suit to his brother and assisted the latter in a suit against the complainant apparently for the purpose of so preventing her from receiving such sums, and for such purpose had prosecuted three appeals in such suit and presented records therein aggregating over 1,000 pages, held that there was no error in finding the defendant guilty of contempt in failing to comply with an order in such suit for allowance of suit money and solicitor’s fees.
    Appeal from original decree as to alimony and solicitor’s fees was decided in Kuebler v. Kuebler, Gen. No. 21,883, ante, p. 256, and the appeal from the order allowing suit money and solicitor’s fees, in Kuebler v. Kuebler, Gen. No. 22,695, ante, p. 258.
    Albert H. Fry, for appellant.
    Charles M. Haft, for appellee.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


author: Mr. Justice Taylor

text:
    William Fenimore Cooper, Appellant, v. Andrew M. Lawrence and Illinois Publishing & Printing Company, Appellees.
    Gen. No. 21,522.
    1. Libel and slandeb, § 46

      —what 'may be published concerning judicial officers. -Fair and reasonable comment and criticism upon the acts of judicial officers are publishable.
    2. Libel and slandeb, § 46*—what may not be published concerning judicial officer. A false statement of fact concerning a judicial officer may be published only at one’s peril.
    3. Libel and slandeb, § 46*—when words are actionable per se. If words charge incapacity and unfitness, the want of integrity or corruption in office, they are when published in reference to one holding an office of profit actionable per se, and it is unnecessary that the words go so far as to import a crime.
    4. Libel and slandeb, § 90*—when declaration in action for libel is sufficient. The several counts in a declaration based upon an alleged libel, held to set up a good cause of action, in an action based upon a certain publication as to the words and acts of the plaintiff as a judicial officer.
    5. Libel and slandeb, § 117*—when general issue is sufficient plea. In an action by a judicial officer for an alleged libel, if the words charged constitute fair criticism and are privileged only as fair criticism, such words are not libelous and a plea of general issue is sufficient.
    6. Pleading, § 374*—when special plea should be stricken from files. A special plea which sets up matter admissible under a plea of the general issue should, on motion, be stricken from the files.
    7. Pleading, § 191*—when demurrers to special plea should be overruled. Where general and special demurrers to a special plea which set up matter admissible under a plea of the general issue did not object to such special plea for that reason or ask that it be stricken from the files or for an election, held that such demurrers should be overruled.
    8. Pleading, § 229*—what is effect of allowing improper special plea to stand. The fact that a special plea which improperly sets up matter which is admissible under a plea of the general issue filed is allowed to stand of record on overruling of demurrers will not preclude or affect the defense of such matter.

      9. Libel and slander, § 104

      —what are requisites of plea of justification. A plea of justification in an action of libel must be as broad as the declaration.
    10. Libel and slander, § 103*—how plea of justification is construed. A plea of justification in an action of libel is construed strictly against the party pleading it.
    11. Libel and slander, § 104*—when pleas of justification are insufficient. The several pleas of justification held insufficient under the respective counts of the declaration, in an action for an alleged libel as to a judicial officer.
    12. Libel and slander, § 61*—what is insufficient justification for publication of alleged libel. It is immaterial in a plea of justification as to an alleged libel that the language stated in such libel as spoken by a third person was actually uttered, as a party is liable for what he publishes no matter whether the source is truth or falsehood.
    13. Libel and slander, § 62*—when justification for libel on judicial officer is insufficient. In an action for an alleged libel as to a judicial officer, a statement in a plea of justification that out of eighteen cases tried before such officer only a certain number of convictions were obtained and that certain results were obtained where new trials were allowed, held insufficient as determining the character and fitness of such officer.
    Appeal from the Circuit Court óf COok county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 8, 1917.
    Rehearing denied March 26, 1917.
    Joseph B. David, for appellant.
    Roy D. Keehn, for appellees; Edward Gk Woods, of counsel.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is an action on the case by appellant against appellees for an alleged libel. The appeal was from the final order and judgment of the Circuit Court in favor of the appellees. The questions that arise by reason of the appeal involve matters of pleading only.

The appellant (hereinafter designated plaintiff) is a judge of the Superior Court of Cook county, and the appellees (hereinafter designated defendants) are owners and publishers of a newspaper known as the “Chicago Examiner.” The alleged libelous matter for which suit was brought, as shown by the declaration, was published on June 2, 1913. The declaration consists of three counts.

The alleged libelous words set forth in the first count of the declaration are to the effect and meaning that the plaintiff, as a judge, is a peril to children; that he, as judge, makes conviction, in cases involving attacks on young girls, impossible; that it is to be doubted if there is in any civilized country a court in which crimes against children are treated with the tolerance which is shown such crimes in the plaintiff’s court; that in a certain case he hampered the prosecution in every way; that in another case, although the defendant admitted enough to convict him, he escaped because the plaintiff so ordained; that in plaintiff’s court the law does not protect women and children as it does men.

The alleged libelous words set forth in the second count are to the effect and meaning that the record of the plaintiff as a judge is an urgent demand for the recall of judges; that the sympathies of the plaintiff on or off the bench are with criminals rather than with the law-abiding citizens; that the plaintiff as a judge is unfit; that it is judges like the plaintiff who justify the law of recall.

The alleged libelous words set forth in the third count are to the effect and meaning that the plaintiff, as judge, is feared as a menace to girls at the city beaches; that certain officials have therefore taken steps to have attack cases tried in other courts; that in a certain case, in the face of conclusive evidence that two men were guilty of attacking a girl, the plaintiff, as judge, granted a new trial; that the children in a certain district can look for very little protection if the decisions of the plaintiff are permitted to stand; that the conduct of the plaintiff, as judge, creates fear in the minds of parents in a certain district as to the safety of their children.

On September 26, 1914, the defendants filed a general demurrer to the declaration, and on November 4, 1914, it was overruled. On December 9, 1914, the defendants filed a plea of not guilty to each of the three counts. They also filed on the same day three separate pleas (one to each count), alleging the privilege and fair criticism. These pleas will be called numbers two, three and four. To the plea of general issue a similiter was filed, and to the second, third and fourth pleas, general and special demurrers were filed. On January 12,1915, the defendants filed six pleas of justification, two to each count of the declaration, three being general pleas ' of justification and being alike (and which will be called numbers five, seven and nine), three being special pleas of justification (and which will be called numbers six, eight and ten). The plaintiff filed general demurrers to the fifth, seventh and ninth pleas; and filed- general and special demurrers to the sixth, eighth and tenth pleas.

On April 13, 1915, the trial judge entered the following order:

" This day coming on to be heard for argument and disposition the demurrers filed by the plaintiff to the second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth pleas filed by the defendants to the declaration of the plaintiff and each count thereof, and the court having heard the argument of respective counsel and now being fully advised in the premises doth overrule the demurrers and each of them of said plaintiff to the second, fourth, fifth, sixth, ninth and tenth pleas of the defendants and sustains the demurrers of the plaintiff to the third, seventh and eighth pleas, being the special pleas filed by the defendants to the second count of the plaintiff’s declaration, whereupon the defendants move the court for leave to withdraw the plea of general issue heretofore filed as to the second count of the plaintiff’s declaration and that the demurrers of the plaintiff to the third, seventh and eighth pleas of the defendants to the second count of the plaintiff’s declaration be carried back to said second count, which motion is by the court allowed and said general issue as to the said second count of the declaration is withdrawn, whereupon upon the motion of the defendants said, demurrers to said third, seventh and eighth pleas of the defendants to said second count of the declaration is carried back to said second count and the demurrer of the defendants to said second count of the declaration be and the same is hereby sustained, and now the plaintiff elects to stand upon the second count of the declaration and elects to stand upon the demurrers to the second, fourth, fifth, sixth, ninth and tenth pleas of the defendants and each of them, whereupon it is ordered that the plaintiff take nothing by his suit and that the defendants have judgment against the plaintiff for costs * * *."

The plaintiff contends that the order of the trial judge should be reversed. The errors which are relied upon by the plaintiff as justifying a reversal of the final order and judgment are as follows:

“1st. That the Circuit Court erred in carrying back the demurrer of the plaintiff to the pleas filed by the defendants to the second count of the plaintiff’s declaration after the general issue had been withdrawn, since the demurrer to the declaration had been already overruled by another judge.
“2nd. That the Circuit Court erred in sustaining the demurrer to the second count of the declaration.
“3rd. That the Circuit Court erred in overruling the demurrers of the plaintiff to the defendants’ second and fourth pleas.
“4th. That the Circuit Court erred in overruling the demurrers' of the plaintiff to the defendants’ fifth, sixth, ninth and tenth pleas.”

The question arises whether the words of any or all of the three counts are libelous.

Fair and reasonable comment and criticism upon the acts of judicial officers, which are matters of public concern, are allowable, and. are sometimes called “privileged.” The right to make and publish such reasonable comment and criticism, however, does not extend so far as to permit false statements of facts, and the subject of reasonable comment and fair criticism must be a fact and not a libel.

It seems to be the law that if the words charge incapacity and unfitness, the want of integrity or corruption in office, they are when published in reference to one holding an office of profit actionable per se, and that it is unnecessary that the words should go so far as to import a crime. f

In the words of the first count, the plaintiff is charged with being a peril to the administration of justice; with not applying the law in cases involving attacks on children and with not applying the law in cases where women and children are involved, that is, for their protection as in the cases of men. Such a charge is obviously one of both moral and intellectual unfitness. Likewise the words of the second count, that his sympathy, personal and official, is with criminals rather than with law-abiding society and that he is unfit, are an imputation of wickedness, incapacity and unfitness. The words of the third count imply that, as far as his court is concerned, young girls may be attacked with impunity; that he, the plaintiff, will not in such cases apply the law and administer justice. The alleged libelous words set forth in each count charge the plaintiff with unfitness and tend to degrade biro in the eyes of the public.

The office of judge is considered by many as one of the most important in the community. It is, of course, unique, unlike all others; it deals only in the administration of justice, upon which is dependent, in part at least, the peace of the community. Of course all are free to speak and publish the truth of the courts and judges; and reasonable comment upon and fair criticism of what they have done is to be encouraged; but a false statement of fact concerning a judge may be published only at one’s peril. “It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct.” Quoted with approval by Mr. Justice Holmes in Burt v. Advertiser Newspaper Co., 154 Mass. 238; People v. Fuller, 238 Ill. 116; 1 Starkie on Slander 118; Rearick v. Wilcox, 81 Ill. 77; Robbins v. Treadway, 25 Ky. 540; Triggs v. Sun Prtg. Pub. Co., 179 N. Y. 144; Commonwealth v. Clap, 4 Mass. 163.

Applying the law to the words charged in each of the three counts of the declaration, we are of the opinion that each count sets up a good cause of action. It follows that the trial judge erred in sustaining a demurrer to the second count.

As to pleas numbers two, three and four: Pleas known as numbers two, three and four are alike. They state that plaintiff (first) had tried divers cases which were truly set forth in the alleged libelous words; (second) that he had done the things therein set forth; (third) that the matters so done became the subject of criticism; (fourth) that the comments in the alleged libelous statements were fair and reasonable criticism; (fifth) that they became and were privileged; and (sixth) that they were published without malice. These pleas do not plead that what was published was true. Of the foregoing elements, the first and second do not cover the charge as to the private and official conduct of the plaintiff. These pleas, therefore, must be considered only as pleas of fair criticism and privilege, either or both. It is our opinion that where the words charged constitute fair criticism and are privileged (using the word “privileged” in its popular sense) only as fair criticism, that the words charged are then admittedly not libelous, and that the plea of the general issue is sufficient. It follows, therefore, that if the plaintiff had moved to strike pleas number two, three and four, his motion should have been allowed. As the record stands, however, the plaintiff has demurred to them; and the defendants contend that as no motion was made to strike or elect, and as the demurrers, general and special, do not set up that the defense could have been made under the general issue, they, pleas numbered two, three and four, are not obnoxious to a demurrer. Under our law there is no arbitrary rule as to the number of pleas a defendant may file; he may file as many as he thinks necessary for his defense. Inasmuch, therefore, as the plaintiff did not ask for an election by the defendants, and did not move to strike the pleas from the files, and did not specially demur on the ground that the pleas set up a defense that was already covered by the general issue, we are of the opinion that the demurrers to pleas two and four were properly overruled, and that they should have been overruled as to plea number three. Cushman v. Hayes, 46 Ill. 145.

The fact that pleas two, three and four are allowed to stand will not affect the defense, because, with or without them, the defendant is entitled to his endeavor to prove that the words charged are fair criticism, that is, do not in and of themselves constitute a libel.

As to pleas numbers five, six, seven, eight, nine and ten: These all purport to be pleas of justification. Plea number five is to the first count of the declaration, and to it there was filed a general demurrer. Plea number seven is to the second count; and to it there was filed a general demurrer. Plea number nine is to the third count, and to it there was filed a general demurrer. Pleas number five, seven and nine are all alike. Pleas number six, eight and ten are to the first, second and third counts, respectively; and to each of those pleas there were filed general and special demurrers. It may be well to consider all these pleas together, because if pleas numbers six, eight and ten, which are special pleas of justification, are demurrable, then, a fortiori, pleas numbers five, seven and nine, which are general pleas of justification, are demurrable.

The plea of justification must be as broad as the declaration (Rice v. Aleshire, 72 Ill. App. 455; Dowie v. Priddle, 216 Ill. 553), and it is always construed strictly against the party endeavoring to justify. It has been said that the plea ought to state the charge with the same precision as in an indictment. Upon a careful scrutiny of the special pleas of justification we do not find facts therein alleged which sufficiently justify the conclusion (first count) that the plaintiff, as judge, is a peril to children; that he makes convictions in cases involving attacks on young girls impossible; that it is to be doubted if there is in any civilized country a court in which crimes against Qhildren are treated with the tolerance which is shown such crimes in the plaintiff’s court; that in a certain case he hampered the prosecution in every possible way; that in the plaintiff’s court the law does not protect women and children as it does men; (second count) that the trial record of plaintiff is an urgent demand for the recall of judges; that he demonstrated by his conduct that his sympathy lies with criminals rather than with law-abiding society; that he is unfit as a judge; that it is judges with records like that of the plaintiff who justify the demand for the recall; (third count) that plaintiff is feared as menace to girls at city beaches; that juvenile workers take steps to have attack cases tried in other courts; that in the face of conclusive evidence that two men were guilty as charged, the plaintiff granted a new trial; that the children in a certain district can look for very little protection if the decisions of the plaintiff are permitted to stand. The defendants set up as part of their justification that the language contained in said alleged libel which is stated as spoken by a third person was actually uttered. It is entirely immaterial whether or not it was so uttered, because the defendants are responsible for what they publish no matter whether the source is truth or falsehood. It is also claimed by the defendants, in plea number six to the first count, that out of eighteen cases tried before the plaintiff only a certain number of convictions was obtained and that certain results were obtained where new trials were allowed. Of course such a statement of facts justifies none of the words charged in the first count of the declaration; statistics as to eighteen cases do not help in determining the character and fitness of a judge.

It is difficult, of course, for the pleader to recite facts, assuming them to exist, which shall make out a justification for the words charged in the declaration, and that we fully appreciate. After a careful consideration of the contents of the pleas of justification we are compelled to conclude that they are insufficient. It follows, therefore, that the trial judge erred in overruling the demurrers to pleas numbers five, six, nine and ten.

We are of the opinion that the second count, in fact, none of the counts, is demurrable; that the demurrers to pleas numbers two, three arid four should be overruled; that the demurrers to pleas numbers five, six, seven, eight, nine and ten should be sustained.

The judgment is, therefore, reversed and the cause remanded.

Reversed and remanded.


text:
    Hattie Proctor, Appellee, v. W. F. Rhorbeck, Appellant.
    Gen. No. 21,758.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 8, 1917.
    Statement of the Case.
    Action by Hattie Proctor, plaintiff, against W. F. Rhorbeck, defendant, for damages for unlawful eviction and loss of goods and chattels. From a judgment for plaintiff for $350 on remittitur, defendant appeals.
    It appeared that plaintiff had leased the flat in question from defendant; that the lease had not expired; that the rent had been paid in advance; that no notice had been given by the owner terminating the lease; that plaintiff was in lawful possession, when, without notice of any kind, defendant entered and removed the goods and chattels of plaintiff to the value of $390.59, and put a stranger in possession. The evidence also, showed that plaintiff made several efforts to get into the premises, but was kept locked out; that numerous efforts were made by her to find where her goods had been taken, and that all of the goods in question were lost to her without any compensation.
    Christian Meier and E. A. Linderholm, for appellant.
    Samuel C. Herren, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

1. Landloed and tenant, § 515 —when evidence sufficient to sho'io knowledge by landlord of eviction and loss of goods. Evidence held to show that the defendant landlord was fully aware of the eviction and removal of the goods of the plaintiff, in an action by the lessee to recover damages for such eviction and the loss of such goods.

2. Landloed and tenant, § 487*—what is not excuse for forcible removal of lessee’s goods. The fact that a lessee had told the lessor that the leased premises would be given up would not excuse the lessor’s forcible removal of the lessee’s goods from the premises and the subsequent loss of such goods where the lessee was yet in lawful possession of the premises at the time of such removal.

3. Landloed and tenant, § 515*—when evidence is insufficient to show effort by landlord to restore goods wrongfully taken. Evidence held insufficient to show that the defendant made any effort to put the plaintiff in possession of certain goods belonging to her and taken by him from her possession, in an action to. recover damages for the loss of such goods.

4. Landlord and tenant, § 517*—when instruction on vindictive damages in action by lessee for wrongful eviction is erroneous. An instruction in an action by a lessee for damages for unlawful eviction and loss of goods and chattels that vindictive damages cannot be recovered where there are no circumstances indicating insult or indignity, held to be erroneous.


text:
    The People of the State of Illinois, Defendant in Error, v. Jack Lillington, alias Clarence Struble, and Henry Stead, alias Fred Stead, Plaintiffs in Error.
    Gen. No. 22,458.
    (Not to be reported in full.)
    Error to the Criminal Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed March 8, 1917.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Jack Lillington, alias Clarence Struhle, and Henry Stead, alias Fred Stead, defendants. From a judgment upon a verdict of guilty and sentence to imprisonment for nine months and fine of five hundred dollars and costs, defendants bring error.
    The indictment contained three counts: First, for a felonious assault with a revolver, the same being a dangerous and deadly weapon, with intent to kill and murder; second, for assault with a loaded revolver, the same being a dangerous and deadly weapon and without any considerable provocation with intent to inflict a bodily injury; third, for assault as in the second count, except that the deadly weapon was alleged to be “a certain hard substance, a further description of which is unknown.” The verdict of the jury was as follows:
    “We, the jury, find the defendant * * * guilty of assault with a deadly weapon in manner and form as charged in the indictment and we further find that said assault was committed with an intent to inflict upon the person of another a bodily injury where no considerable provocation appears and the circumstances of the assault show an abandoned and malignant heart.”
    It was contended by the defendants: First, that the verdict authorized a conviction for simple, assault only; second, that the verdict was not supported by the evidence; third, that the court erred in giving a certain instruction.
    Abstract of the Decision.
    1. Assault and battery, § 34

      —when verdict in criminal prosecution is sufficient. A verdict finding the defendants guilty of assault with a deadly weapon in manner and form as charged in the indictment and that said assault, was committed with an intent to inflict upon the person “of another” a bodily injury, etc., held to specify sufficiently the material facts constituting the crime of assault with a deadly weapon and that the words “of another” did not negative the allegation that the intention was to injure the person charged in the indictment to have been assaulted, but were used in direct reference to such person.
    2. Assault and battery, § 34*—when verdict in criminal case sufficiently designates defendant. A verdict finding the defendants guilty of assault with a deadly weapon in manner and form as charged in the indictment, held to clearly designate, by the words “as charged in the indictment,” that the person upon whom the assault was made was the one charged in the indictment.
    3. Assault and battery, § 34*—when verdict finding defendant guilty of assault with a deadly weapon is proper. A verdict finding the defendants guilty of assault with a deadly weapon, held good as to a count charging assault with a revolver charged with gunpowder and leaden bullets, the same being a deadly and dangerous weapon, or as to a count charging the same except that the deadly weapon was “a certain hard substance, a further description of which is unknown.”
    Charles C. Williams and Erbstein & Macaulay, for plaintiffs in error.
    Maclay Hoyne, for defendant in error; Irwin N. Walker, of counsel.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

4. Assault and batteby, § 30 —what does not constitute variance between indictment and proof. Evidence that the accused had pointed a revolver at a person whom he was charged with having assaulted and said he would blow such person’s brains out, held sufficient to show that the revolver was loaded, under a count of an indictment charging assault with a loaded revolver.

5. Assault and batteby, § 34*—when verdict of guilty for assault with deadly weapon is proper. A verdict finding the defendants guilty of assault with a deadly weapon, held good under a count of an indictment charging assault with a certain hard substance, where a revolver with which the assault was shown to have been committed was introduced in evidence and the jury had opportunity to determine whether or not it was a hard substance as set out in the indictment.

6. Assault and batteby, § 33*—when instruction in criminal case is in conformity with evidence. An instruction as to a charge of assault with a deadly weapon and as to a charge of assault with the intention to commit murder and simple assault, held to he justified under the evidence showing the assault of which the defendant was found guilty was committed with a revolver.

7. Assault and batteby, § 31*—when evidence sufficient to sustain verdict of guilty of assault with deadly weapon. Evidence held sufficient to sustain a verdict of guilty of assault with a deadly weapon with intent to inflict bodily injury upon the person assaulted, under an indictment charging such assault.