text:
    Byron Graham et al., Appellees, v. William E. Koop et al., Appellants.
    Gen. No. 6,603.
    1. Partition, § 29

      —right to make adverse claimants parties. The Partition Act allows partition and removal of clouds in the same proceeding, and the complainant may make adverse claimants parties or not as he sees fit.
    2. Equity, § 23

      —when rule as to retention of jurisdiction to give legal relief applied. Under the rule that equity having obtained jurisdiction will proceed to give legal relief, a mechanic’s lien claimant is entitled to enforce his lien by intervening petition in partition proceedings, although his remedy is expressly created by statute.
    3. Partition—who proper party in proceedings for. A mechanic’s lien claimant is a proper party in partition proceedings.
    Appeal from the Circuit Court of Winnebago county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed February 8, 1919.
    Rehearing denied April 2, 1919.
    A. D. Early, B. B. Eíarly and Lathrop, Lathrop & Brown, for appellants.
    Christian C. H. Zillman and Arthur E. Fisher, for appellees.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Byron Graham is the owner of an undivided interest in land upon which is located a distillery property in the City of Rockford. On December 31, 1914, he filed a bill for partition, making parties, as he alleged, all persons who upon any contingency might become entitled to any beneficial interest in said real estate, and other parties alleged to claim but not to have interests. Among these parties was the Union Bank of Chicago, the owner of an indebtedness secured by the lien of a trust deed, the amount of which indebtedness he alleged was in dispute, and asked an accounting. He elected to make adverse claimants and holders of hostile title parties defendant, and chose not to limit the adjudication, as perhaps he might to some extent, under the authority of Miller v. Barto, 247 Ill. 104. The Partition Act allots two kinds of relief in relation to two different subjects to be sought in the same proceeding, to wit: Partition and removal of clouds upon the title, and the complainant may make adverse claimants and holders of hostile title parties defendant or not, as he sees fit. (Miller v. Miller, 263 Ill. 18; Glos v. Carlin, 207 Ill. 192; Clark v. Zaleski, 268 Ill. 427.) In the following spring, March, April and May, the appellants claiming, respectively, mechanics’ liens on the premises, appeared, and without objection obtained leave to file, and did file, petitions and other-pleadings in the case setting up their rights and asking that they be adjusted. Other parties about that time also in like manner appeared and filed petitions claiming mechanics’ liens. This action of appellants was within the 2-year limitation prescribed by section 9 of the Liens Act (J. & A. ¶ 7147), within which a bill or petition could be filed in a court of chancery jurisdiction to enforce the payment of the lien indebtedness. The case seems to have lain dormant until August 2, 1917, when the complainant moved that it be dismissed. Following that, October 9, 1917, the defendant, Union Bank of Chicago, moved to strike from the files all intervening petitions relating to mechanics’ liens. These motions were contested, but the complainant, Byron Graham, joined in the latter, and the court, on February 16, 1918, allowed each motion, and orders were entered accordingly. This disposition of the case left appellants without remedy under our Liens’ Act, because the 2-year period had expired.

Appellees’ theory, apparently adopted by the court, is that mechanics’ liens, and the enforcement thereof, are entirely creatures of the statute; that the method of proceeding is specifically provided in our Liens Act (Rev. St. ch. 82, J. & A. ¶ 7139 et seq.) which authorizes the lienor to file a bill or petition in any court of competent chancery jurisdiction in the county where the improvement is located, and all other lien claimants to come into that suit or proceeding, and permits each claimant to contest other’s rights without any formal issue of record made up between them, and directs various methods of procedure in adjudicating the matter. It is contended that when a right and remedy are given by statute, the remedy there prescribed must be strictly followed and cannot be departed from. Many authorities are cited supporting such a general rule. We will assume, without deciding, that had appellants begun an action to enforce their lien, they would have been compelled to strictly follow the requirements of the statute in their proceeding. But they were parties to a suit in equity. Whether necessary parties under the authority of Barr v. Barr, 273 Ill. 621, in which it is said that in partition proceedings it is necessary to make all parties having any interest in the premises parties to the suit, and that mortgagees have such an interest as to make them necessary parties or merely proper parties, as may be inferred from Miller v. Miller; Glos v. Carlin; and Clark v. Zaleski, supra, we think unnecessary to determine, because it is clear they were at least proper parties. It is conceded in appellees’ brief: “If the mechanic’s lien petitions were properly filed in the partition suit, they became, under the terms of the statute, petitions in the nature of cross-bills, and the complainants would not be entitled to dismiss the suit.” Assuming that appellants are proper parties to this proceeding, it is no objection that the relief obtained may be of a kind or character ordinarily necessary to procure in some other and entirely different manner. “It is an established rule that where chancery takes jurisdiction for one purpose it will retain it for all purposes necessary to complete justice between all parties interested in the subject-matter. The policy of the rule is, the prevention of a multiplicity of suits, and from it has sprung the other rule, which requires all persons interested to be made parties, so, that to do adequate and complete justice between all parties interested, may be said to be a prevailing motive of equity.” Sherlock v. Village of Winnetka, 59 Ill. 389, 400.

“A court óf chancery having acquired jurisdiction, will, generally, for the purpose of preventing multiplicity of suits, retain the same until it has done complete equity between the parties in respect of the subject-matter in litigation.” School Directors v. School Directors, 135 Ill. 464, 478.

It is well settled that if a court of equity acquires jurisdiction on any equitable ground, it will retain the cause and afford complete relief, although it becomes necessary to enforce purely legal rights. County of Cook v. Davis, 143 Ill. 151, 155. It makes no difference that some of those rights may be in the nature of legal rights which otherwise could not be enforced outside of a court of law. It is not material that an original bill would not lie for such relief alone. 16 Cyc. 107. Or that the relief be such that if it were the object of an independent action it could be obtained at law alone. 16 Cyc. 109. In Morton v. Noble, 57 Ill. 179—a partition proceeding—the court summarily disposed of an objection that a party defendant in possession of land, claiming the title, could only be dispossessed by an action of ejectment, by referring to the above long and well established rules. Those rules are ancient and very familiar. They have been applied in many cases. They apply to interests acquired in various different ways that might be asserted and enforced in different ways. We are aware of no holding that a right created by statute is excepted from the general rule, and see no more reason for saying that it cannot be adjusted in this proceeding because the statute provides a remedy than for saying that right of possession of land could not be here determined because there is an imperative rule that such a right must be tried and determined in an action at law.

A court of equity should not aid in creating a position in which the remedy of a party is barred by the statute of limitations. It has in some jurisdictions been held a ground for equitable relief that the early termination of the statutory period would defeat another remedy. 16 Cyc. 40. It is also there noted that in some other cases equity acts to relieve parties of the burden of the statute of limitations. See also 16 Cyc. 175. Whether in this case that consideration would be controlling we do not undertake to say, because we think the other grounds mentioned are sufficient reason for reversing the decree.

The judgment is reversed and the cause remanded with directions to deny each of said motions.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Carnes Mr. Presiding Justice Dibell

license: Public Domain

text:
    Giles S. Farmer, Trustee, and Security Savings Bank, Appellees, v. Mary E. Fowler, and Frank T. Fowler, Appellants.
    Gen. No. 6,608.
    1. Equity, § 162

      —when defendant may answer after time set. A defendant in equity has no right to answer as a matter of course after the expiration of the time set, but before default is taken.
    Dibell, J., dissenting.
    2. Equity, § 162

      —discretion of court as to permitting answer after time set. The right to answer in equity after the expiration of the time set, but before default, is in the sound discretion of the court.
    Dibell, J., dissenting.
    3. Equity—what proper practice in seeking to have order striking answer set aside. It is proper for the chancellor to require an affidavit in support of a motion to set aside an order striking an answer, as having been filed too late, and defaulting the defendants.
    4. Mobtgages, § 666

      —when testimony ■ as to attorney fees not incompetent. The allowance of attorney fees in foreclosure proceedings is not erroneous because a witness testifying had no actual knowledge of the services performed, except as he could judge from the record, where the competency and experience of the witness is unquestioned.
    5. Mobtgages, § 665

      —when excessive attorney fees not disturbed. Although the Appellate Court is of the opinion that an attorney fee allowed in foreclosure is excessive, it will not be disturbed in the absence of objection by the defendants.
    6. Appeal and ebbob, § 1568

      —-when striking of answer and entry of default without required notice immaterial: The fact that the court struck an answer and entered a default without notice to the defendants as' required by its rule, is immaterial on appeal," where the defendants refused to file an affidavit in court on motion to set aside.
    7. Appeal and ebbob, § 733

      —when chancery record complete. The difference between the records of common law and chancery courts is noted and the record held to fully present the questions raised in chancery.
    8. Appeal and ebbob, § 866

      —when abstract defective. Abstract

      of the record held defective as being'a mere copy of practically the entire record.
    Appeal from the Circuit Court of Lake county; the Hon. Robert K. Welsh, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed February 8, 1919.
    S. H. Block, for appellants; E. V. Orvts, of counsel.
    W. C. Upton and Cooke, Pope & Pope, for appellees.

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

   Mr. Justice Carnes

delivered the opinion of the court.

This is an appeal by the defendants from a decree of foreclosure of a trust deed, regular on its face, duly signed and acknowledged by appellants, husband and wife, and recorded, securing their promissory note for $3,500, payable to themselves, and by them indorsed.

The appellee bank as owner of the note, and its president, Giles S. Farmer, the trustee named in the deed, filed their bill to the March term of the Lake county Circuit Court. Appellants appeared by counsel on the first day of the term and obtained leave to plead within 10 days. Eleven days thereafter they filed an answer denying making the note and trust deed. This denial was in short form with no attempt to explain the situation. Two days thereafter the court, on motion of appellees, struck the answer from the files and entered an order.defaulting the defendants and referring the cause to the master in chancery. Two days thereafter, the court denied appellants’ motion to set aside these orders and permit the answer to be refiled. Proof was taken by the master and reported, with his findings. Appellants appeared and-filed objections to his findings, which he overruled, and appeared before the chancellor with exceptions, which were also overruled, and a decree entered in accordance with the master’s report finding $3,019.50, the amount due on the note, and $350, a proper complainants ’ solicitor’s fee, to be taxed as costs.

Appellants did not attempt to show the court why the answer was not filed in time, or that they had a meritorious defense, but stood there, as they do here, on the assumption that having filed their answer before a default was asked, it was legally filed, though a day after the time granted. This is the controlling question in the case. The inquiry is whether an answer can, as matter of course, be filed after the expiration of the time so limited. If it can, there was no reason why appellants should attempt to show the court that they in good faith intended a defense on the merits. If it cannot, 'it was within the discretion of the court to refuse leave to file an answer, in effect, charging forgery that counsel did not and do not say they intended to offer evidence of. There had been several payments of interest on the indebtedness, and one payment to apply on the principal. A defense that appellants did not make the note or trust deed under the circumstances seems so strange and unusual that in the absence of explanation it might be presumed it was not interposed in good faith.

It was said in Dunn v. Keegin, 4 Ill. 292, that the general and correct practice was to consider a pleading filed in time if before motion for default though later than the time limited by an order; and expressions to that effect are found in Castle v. Judson, 17 Ill. 381, and Cook v. Forest, 18 Ill. 581. Meantime, the court in Flanders v. Whittaker, 13 Ill. 707, held that a defendant had no right to plead after the expiration of the rule without special leave of court, and that a pleading so filed might be disregarded. The Appellate Court of the First District, in Lambert v. Hyers, 27 Ill. App. 400, noted this apparent conflict in the decisions and concluded that Flanders v. Whittaker, supra, was in the minority; but in Walter Cabinet Co. v. Russell, 250 Ill. 416, 419, the court approved the rule announced in the Flanders case, citing that and other cases. Therefore we think that rule should now be followed, notwithstanding apparent conflict in early decisions, and that seems to be the rule in other jurisdictions. 31 Cyc. 247, 597. Appellants, on their motion to refile the answer, were appealing to the discretion of the court. City of Carlyle v. Carlyle Water, Light & Power Co., 140 Ill. 445; Anderson Transfer Co. v. Fuller, 174 Ill. 221. It is said in appellees’ brief that the chancellor told them he would permit the answer to be refiled if they would file an affidavit showing that the defense was offered in good faith. Appellants only answer this statement by saying there is nothing in the record before us to that effect, which is true. But it is natural to presume that a court might make such statement, though under no legal duty to do it. Appellants were asking a favor instead of demanding a right, and in a position similar to that where a party is asking leave to file amendments to pleadings where the court in the exercise of a sound discretion must determine whether the party is acting in good faith and to promote the ends of justice. Where such motions are contested the party desiring the favor is ordinarily expected to show some reason for asking the relief. It is said in 31 Cyc. 374, courts very generally exercise their discretion by requiring an explanatory affidavit. The court’s action is not subject to review unless the discretion was abused. (Anderson Transfer Co. v. Fuller, supra.) We do not think under the circumstances of this case we ought to reverse the decree on that ground.

Error is assigned on the allowance of $350 solicitor’s fee. The objections and exceptions passed upon by the master and the chancellor are limited to the fact that the witness testifying to that sum had no information as to the work actually done by complainants’ solicitors except what he could judge from an examination of the record. There is no question about the competency of the witness. He had been a master in chancery of that court and was presumably competent to judge from such knowledge so obtained what would be a usual and customary fee in that county for work so indicated. The majority of this court are inclined to the opinion that the fee is excessive, but we cannot know definitely the scale of fees usual in Lake county. There is no argument here that the fee is excessive, and there was no such suggestion below, so far as the record shows, and we ought not to disturb the decree on that ground.

It is argued that the court disregarded one of its rules requiring notice of motions when the answer was stricken from the files. There is much contention of counsel on that question, but it is immaterial. Appellants had their day in court when heard on a request for leave to refile the answer.

Appellees’ counsel devote much energy to citing common-law cases on the question of what is in the record proper and what must be preserved by a bill of exceptions without observing that the rule is different in chancery. (4 Corpus Juris, 187; Treleaven v. Dixon, 119 Ill. 548; Flaherty v. McCormick, 123 Ill. 525; Waggoner v. Saether, 267 Ill. 32.) Under the chancery practice the record here fully presents the questions above decided. Appellees also complain that there is no proper abstract of the record, which is true. At first appellants filed little more than a mere index of the record. Then, under leave of court to file an additional abstract, they filed one mostly copied in full from the record without omitting even formal matter, but we have thought best to disregard that omission and examine the case.

Finding no error in the record, the decree is affirmed.

Affirmed.

Mr. Presiding Justice Dibell

dissenting.

I dissent from that part of the foregoing opinion which holds that the court properly struck the answer from the files and defaulted the defendants. They had filed their answer after their time to answer had expired but before their application for default had been made. The answer was a complete answer to the bill.

In Dunn v. Keegin, 4 Ill. (3 Scam.) 292, an order had been entered giving the defendants time to answer until June 1st and it had then been also ordered that if the answer was not filed by that date the bill should be taken as confessed and the default of the defendants entered. They filed an answer after that date. The court found from the record that the order above recited had been entered upon a stipulation, the effect of which was that if they did not answer by June 1st the bill should be taken as confessed, and on the ground that they were bound by that stipulation it was held they were properly defaulted; but the court there said that the usual and correct practice in the case of an ordinary rule to answer was that it was immaterial whether the answer was filed within the rule, if it was filed before a motion was made for a default. It was there said that it is the general practice to consider such a pleading as filed in due time if filed before the default is asked for, and that a liberal practice in this respect has generally obtained and is encouraged by the courts. In Flanders v. Whittaker, 13 Ill. 707, where a defendant had filed a demurrer after the expiration of the rule to plead, and the court below had ignored the demurrer, and defaulted the defendant, and entered judgment, that action was sustained, the court saying that the defendant had no right to plead after the expiration of the rule without special leave of court. In Castle v. Judson, 17 Ill. 381, the court (Scates, C. J.) said: “Under general or special rule days, by the common practice, I have never known a plea rejected or stricken from the files, though filed after the rule expired, if done before any other further step or motion in the cause. * * * The defendant does not stand in default simply by the expiration of the rule, but may at any time be put in default by the order of the court, if so ordered before plea filed. ’ ’ In Cook v. Forest, 18 Ill. 581, a plea had been stricken from the files because not filed within the time fixed by law. The court said that the expiration of the rule does not put the defendant in default, and he may plead at any time before default is asked, and as the plea was filed on June 5th, and the defendant did not move for a default until June 30th, the judgment was reversed. It would seem that the case of Flanders v. Whittaker, in 13 Ill. 707, must be considered to have been overruled by the later cases above cited, and it was so held in Lambert v. Hyers, 27 Ill. App. 400, where it was said that it seems to be the practice, approved by the Supreme Court, that under a rule to plead by a day fixed, it is sufficient if it is done after the day, but before the default is asked. It was held in Chicago Stamping Co. v. Mechanical Rubber Co., 83 Ill. App. 230, that the appellant could legally have. pleaded without leave of court before a motion for its default was made, but could not legally do so without such leave after a motion for default. So far as my attention is drawn to it, these are the only published decisions on this precise subject prior to 1911, and so far as my recollection goes, that is the course which has been universally followed in the courts with which I am acquainted.

In 1911, in Walter Cabinet Co. v. Russell, 250 Ill. 416, language is used which is relied upon by the majority opinion in this case. I doubt whether the Supreme Court by that language intended to overrule the practice recognized by the Supreme Court in 1841 in the first case above cited, and which was never before questioned except in Flanders v. Whittaker, supra, and which was not followed thereafter but was departed from in the cases cited from 17 and 18 Ill. when the question again arose. The Russell case, supra, was from the Municipal Court of Chicago, and was governed by the statutes establishing that court, and by its rules of practice adopted by it pursuant to such statutes. There are numerous cases which show the practice in said Municipal Court differs from that in ordinary common-law courts of the State, and this is illustrated by a recent decision in Harmon v. Callahan, 286 Ill. 59, where the rules of pleading and practice applicable to that case in the Municipal Court were held to be the opposite of those which prevailed in ordinary common-law courts in this State. In the Russell case there was a rule of the Municipal Court that in cases of that class a defendant, when he filed his appearance, might file therewith a statement of claim of set-off, and that the court might extend the time for filing it. The defendant there did not file a claim of set-off with his appearance nor did he ask the court to extend, the time. There was no rule that he should file a claim of set-off. He was not required to file it at all. He did thereafter file a claim of set-off without leave. The court there held that he had no right to file that claim of set-off at that time, and that neither the court nor plaintiff was bound to recognize it in any way. Three cases are there cited, one of them is Robb v. Bostwick, 5 Ill. (4 Scam.) 115, and another is Davis v. Lang, 153 Ill. 175. In each of these cases defendant had filed pleas and then afterwards without leave filed another plea, and it was held that' this additional plea could not be filed legally without permission. The third case cited in the Russell case is Flanders v. Whittaker, supra, without any reference to the later cases in 17 and 18 Ill. where Flanders v. Whittaker was disregarded and where reasons were given why a defendant might file a plea after the rule had expired, but before an application for default. Notwithstanding the implied approval of Flanders v. Whittaker in the Russell case, it seems to me more reasonable to assume that it was not intended by the Russell case to overrule the practice previously recognized and established by the Supreme Court, and which had been, so far as I am advised, generally followed and recognized in this State for 60 or 70 years after its first announcement in 3 Scammon; but that the Russell decision was intended to apply only to practice and pleading in the Municipal Court of Chicago under the statutes and its rules of practice, and that it was not intended to apply to such a case as this-. Therefore I am of opinion that the answer should not have been stricken from the files and the defendants should not have been defaulted.


author: Mr. Justice Niehaus

text:
    The Baldwin Company, Defendant in Error, v. James Morrison Darnell, Plaintiff in Error.
    Gen. No. 6,591.
    1. Appeal and eebob, § 438

      —when question of variance must be raised. Objection to variances between the affidavit in attachment and the declaration must be raised in the trial court.
    2. Attachment, § 72

      —what does not deprive court of jurisdiction. The subsequent filing of a declaration in which the form of 'action is changed does not deprive the court of jurisdiction obtained under an affidavit in attachment.
    3. Appeal and ebrob, § 438

      —when objection to declaration cannot be raised. The objection that the declaration in attachment proceedings shows on its face that the matter could not be adjudicated at law cannot be raised on appeal for the first time.
    4. Judgment, § 102

      —what does not prevent default for lack of plea. A plea to a subsequent declaration will not prevent default in attachment which is not pleaded to.
    5. Judgment, § 99

      —when rendition in absence of party not error. The fact that the defendant is not present on trial held in the regular course of the court’s business will not invalidate a default judgment.
    6. Appeal and eebob, § 800

      —how motion for new trial made part of common-law record. A motion for a new trial must be incorporated in the bill of exceptions to become a part of the common-law record; a motion for a new trial set out in the transcript is not properly a part of the record.
    Error to the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed February 8, 1919.
    Bichard J. Cooney and John A. Verhoeven, for plaintiff in error.
    Burton & Hamilton, for defendant in eiror.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

A writ of error is prosecuted in this case, from a judgment for $483.33 recovered in the Circuit Court of Peoria county by the Baldwin Company, defendant in error, against the plaintiff in error, James Morrison Darnell. The suit was commenced by attachment on March 10, 1915, the principal ground of attachment being that the plaintiff in error was a nonresident of the State. The affidavit for attachment alleges that an indebtedness is due from the plaintiff in error to the defendant in error; and that such indebtedness was incurred by the plaintiff in error in the purchase of an Ellington Player Piano and that it amounts to the sum of $483.33. An attachment writ was issued and made returnable to the May term following, and was levied on certain real estate described in the return of the. sheriff; the writ was also returned “not found” as to the plaintiff in error. Service was thereupon had by the publication of a notice, and the mailing of a copy thereof by the clerk of the court, addressed to the last known residence of the plaintiff in error, as required by the statute. At the May term following, the defendant in error filed its declaration consisting of two counts, in both of which it was alleged, in substance, that the defendant in error had sold to the plaintiff in error an Ellington Piano Player for the sum of $475, for which he gave a judgment note, which was afterwards put into judgment in the County Court of Knox county, and amounted, with costs and interest, to the sum of $503.18; and that after the entry of the judgment, and a payment of $100 thereon, plaintiff in error had obtained from the defendant in error a release of the balance of said indebtedness and judgment by means of fraud and deceit. The plaintiff in error entered his appearance in the case, and by his attorneys filed a plea of the general issue to the declaration, but did not plead nor make any defense to the attachment; thereafter, at the November term following, the case was regularly reached and called for trial, and a jury trial was had. The jury, having heard the evidence, found the issues raised by plaintiff in error’s plea in favor of the defendant in error, and found the damages to be $483.33, the exact amount stated to be due to the defendant in error in the affidavit and writ of attachment. The jury also found in favor of the defendant in error on the attachment; and a judgment was thereupon entered against the plaintiff in error for the sum found in the verdict, and a special execution ordered to be issued under the attachment.

It is contended by the plaintiff in error that the judgment should be reversed because it appears on the face of the record that there is a variance between the affidavit and writ of attachment, which are in assumpsit, and the declaration, which is in the form of trespass on the case; and that the court was without jurisdiction to proceed to trial and judgment under these circumstances. The record does show a variance, but it also shows that the plaintiff in error made no objection to it. Objections to variances between writs of attachment and the declaration can be and should be raised in the trial court. Fonville v. Monroe, 74 Ill. 126; Plato v. Turrill, 18 Ill. 275. The affidavit filed and the writ which was issued conformed to the requirements of the statute. The affidavit sets forth the nature and amount of an indebtedness which the defendant in error claimed the right to recover from the plaintiff in error, and for which he brought the suit. This was sufficient to give the court jurisdiction of the subject-matter of the suit. Hurd’s Rev. St. ch. 11, sec. 1 (J. & A. ¶ 492); May v. Disconto Gesellschaft, 211 Ill. 310; American Lumber Co. v. Leach, 207 Ill. App. 62.

The fact that the defendant in error afterwards filed a declaration in which the form of the action was charged did not deprive the court of jurisdiction. The plaintiff in error entered his appearance in the case, and by filing his plea to the declaration, and thereby raising an issue concerning the merits of the controversy, gave the court complete jurisdiction, not only of the subject-matter but of the person as well. The trial court had complete jurisdiction to adjudicate the question of variance, if the plaintiff in error had seen fit to raise it there; not having made any objections there, he waived his right to make any objection. Wabash R. Co. v. Barrett, 117 Ill. App. 315. The rule concerning the legal effect of irregularities between the writ and the, declaration is long established and well settled in this State. Easton v. Altum, 2 Ill. (1 Scam.) 250; Beecher v. James, 3 Ill. (2 Scam.) 462; Fonville v. Monroe, 74 Ill. 126; Plato v. Turrill, 18 Ill. 275; Rockford, R. I. & St. L. R. Co. v. Beckemeier, 72 Ill. 267; Grubb v. Milan, 249 Ill. 456.

The pointed language of the court in the case last cited seems peculiarly applicable to the present case: “It is quite uncertain upon what ground the recovery was had, but the case was- tried upon different and inconsistent theories, sometimes as an action in assumpsit on the contract, and at others as an action on the case for fraud and deceit. No objection was made by the defendant to the form of the action, and he cannot now complain.”

Plaintiff in error also contends that it appears on the face of the declaration that defendant in error’s remedy was by suit in equity to set aside the release which he claims was obtained fraudulently, and that it is therefore evident that the subject-matter of the suit could not properly be adjudicated in a proceeding at law. This also presents a question which the plaintiff in error should have raised in the trial court, and, not having raised it there, he cannot legally raise it here for the first time. Fish v. Lapsley, 128 Ill. App. 611; Hicks v. Deemer, 87 Ill. App. 384; Zukas v. Appleton Mfg. Co., 200 Ill. App. 403.

Plaintiff in error also insists that the court erred in entering a judgment of default against him and complains because, he says, the court proceeded with the trial of the case as if the plaintiff in error were in default, when as a matter of fact he had a plea on file. The record does not show that any default was entered against the plaintiff in error except on the attachment; and the case proceeded to trial in the regular and orderly course of the business of the court to determine the issue raised by the plea which the plaintiff in error had filed to the declaration. There was no error in this, and the fact that the plaintiff in error was not present at the trial does not in any way invalidate it. The default which was entered in the attachment was proper, inasmuch as the plaintiff in error did not file any plea nor traverse any of the allegations of fact in the affidavit of attachment. Musical Leader Pub. Co. v. White, 184 Ill. App. 453.

Error is also assigned in connection with a purported motion for a new trial; but the motion for new trial set out in the transcript over the certificate of the clerk of the court is not properly a part of the record. To become a part of the common-law record a motion for new trial must be incorporated in a bill of exceptions. Daniels v. Shields, 38 Ill. 197; East St. Louis Elec. St. R. Co. v. Cauley, 148 Ill. 490; Fireman’s Ins. Co. v. Peck, 126 Ill. 493; Graham v. People, 115 Ill. 566; Chicago, B. & Q. R. Co. v. Haselwood, 194 Ill. 69; Call v. People, 201 Ill. 499; Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61.

The errors assigned in connection with the purported motion for new trial are therefore not properly before us for consideration and review.

None of the errors assigned and argued by the plaintiff in error furnishes a legal basis for a reversal of the judgment, and it is therefore affirmed.

Affirmed.


text:
    Gamboe Cochren, by James Cochren, Appellee, v. Frank Sweigle, Appellant.
    Gen. No. 6,598.
    1. Justices of the peace, § 170

      —strict compliance with statute relating to appeal. An appeal from a justice’s judgment is purely statutory and necessitates strict compliance therewith.
    2. Justices of the peace, § 192

      —when appeal bond must be filed. An appeal bond in a justice court must be filed within 20 days to give the reviewing court jurisdiction.
    3. Justices of the peace, § 192

      —what is not filing of appeal bond with justice. Leaving an appeal bond at the office of a justice from which he was known to be absent for an indefinite period cannot be regarded as filing it with the justice at that time.
    . 4. Justices of the peace, § 196

      —lack of power to approve appeal bond nunc pro tunc. A justice of the peace has no power to approve an appeal bond nunc pro tunc so as to bring it within the 20-day statutory limitation.
    5. Justices of the peace, § 155

      —what not required to note in docket. A justice is not required by statute to note in his docket the time of filing and approving an appeal bond, and such notation may be contradicted by parol evidence.
    Appeal from the Circuit Court of Winnebago county; the Hon. Robebt K. Welsh, Judge, presiding. Heard in this court at the October term, 1918.
    Affirmed.
    Opinion filed February 8, 1919.
    Bradley J. Khtght and Karl J. Mohr, for appellant.

      J. E. Goembel and Boy F. Haul, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

In this case a judgment was entered in favor of Gamboe Cochren, the appellee, against the appellant, Frank Sweigle, before J. H. Bapp, a justice of the peace in Winnebago county. The date of the judgment was August 23, 1916. A few days later the attorney for appellant informed the justice that the appellant desired to take an appeal, whereupon the justice filled out an appeal bond, leaving blank spaces for the names and signatures of the persons who were to execute the bond. Thereafter, on September 9, 1916, appellant’s attorney had a conversation with the justice over the telephone, wherein he told the justice that he wanted to file the appeal bond in the case; also told the justice who had signed the bond. The justice, however, informed the attorney that he could not then receive the bond because he was about to leave town and had to catch a train for South Dakota; however, that he would approve the bond on his return as of the date of the conversation. Later on the same day, or in the morning of the next day, appellant’s attorney went to the office of the justice, found the door locked, and put the bond through a slot in the door. The justice did not return from his trip to South Dakota until after the lapse of the 20-day period provided by the statute for the filing and approval of an appeal bond to perfect the appeal; but on his return, about September 15, 1916, he found the bond, and approved it, but dated back the approval to the 9th day of September, 1916, which was the date of the telephone conversation, and the transcript of the record of the cause which the justice transmitted to the Circuit Court shows after the record of the regular proceedings in the cause ending with the entry of the judgment, in favor of the appellee, and signed by the justice in the regular way, a notation appears to have been made by the justice of the filing of the appeal bond in question, as follows: “September 9, 1916. Defendant files an appeal bond, takes an appeal to Circuit Court. ’ ’ In the Circuit Court the attorneys for the appellee made a motion to dismiss the appeal because the appeal had not been perfected by the filing and approval of the appeal bond within the 20-day period required by the statute. Upon the hearing of this motion by the court, oral testimony was adduced to fix the fact that the bond in question was actually filed and approved by the justice after the lapse of 20 days from the date of the judgment, and the court thereupon dismissed the appeal. Prom this order dismissing the appeal an appeal is prosecuted.

An appeal from a judgment of a justice of the peace is purely a statutory right, and to become legally effective it must comply with the requirements of the statute. The statute prescribes that the appeal bond must be filed with the justice of the peace and approved by him within 20 days after the date of the judgment from which the appeal is taken. If not filed within that time, the court to which the appeal was taken could acquire no jurisdiction of the case. Kemper v. Town of Waverly, 81 Ill. 278; Rozier v. Williams, 92 Ill. 187.

The question raised by appellee’s motion was therefore a vital one. The oral evidence taken conclusively shows that the bond in question was not received by the justice and he had no opportunity to inspect the same nor file it until after the expiration of the 20-da.y period. Pushing the bond through a door slot of an office where the justice usually abides, but from which place he was known to have departed for an indefinite period of time, cannot be regarded as a filing on an appeal bond with the justice. It was necessary that the justice should at least have taken charge and possession of the bond to constitute a filing of it. Cook v. Hall, 6 Ill. (1 Gilm.) 575; Lamson v. Falls, 6 Ind. 309. The officer upon whom rests the duty to file an instrument is clearly not able to perform that duty unless he has possession or control of the instrument for that purpose. In this case the justice was not in position to perform any official act with reference to the bond after it was pushed through the door slot, until after the 20 days had elapsed. Hence he cannot be considered as having performed such necessary official act within that time. It is evident that the justice himself was conscious of the fact that he would not be in position to act when he had the conversation over the telephone with appellant’s attorney, because he agreed at that time that he would approve the bond when he returned and would date back the approval to the date of the conversation. Such an agreement was clearly invalid. A justice of the peace has no power to date back the approval of an appeal bond, nor to give a different date from the one upon which it is actually filed and approved. If this were permissible the justice could indefinitely extend the period of time fixed by the statute for taking an appeal, which the statute has limited to 20 days. It is also contended by the appellant that the notation on the justice’s docket to the effect that the bond was filed on September 9,1916, is a record which cannot be contradicted by parol evidence. The statute, however, does not require the justice to make a notation in his docket of the time of the filing or approval of an appeal bond, and the notation referred to was therefore not a part of the record required to be kept by the justice, and not properly a part of the transcript. A notation made on a justice’s docket after judgment entered and signed has no legal effect. Pettit v. Burke, 139 Ill. App. 419. Oral proof to show the time when an instrument required by law to be filed was actually filed is competent and admissible. Cook v. Hall, 6 Ill. (1 Gilm.) 575.

The fact that an appeal was or was not prayed on a certain day may be shown by evidence other than the entry on the docket of a justice of the peace. Skimutis v. Americcm Citizen’s Lithuanian Club, 202 Ill. App. 557.

For the reasons stated we are of opinion that the appeal in this case was properly dismissed, and judgment is affirmed.

Affirmed.


text:
    Louise A. Botsford, Appellee, v. City of Elgin, Appellant.
    Gen. No. 6,643.
    1. Municipal corporations, § 446

      —what declaration in action for damages for change of grade need not allege. A declaration in an action against a city for damages for a change of grade in a street need not allege that the acts complained of resulted in a depreciation of the fair cash market value of the premises.
    2. Judgment, § 679

      —when plea of res adjudicata insufficient. In an action for damages caused by a change of grade, a plea setting up the special assessment proceedings and judgment of the County Court confirming the assessment roll, which included adjustments, is insufficient to show res adjudicata in failing to aver proceedings to ascertain damages to the plaintiff’s property, under section 13 et seq. of the Local Improvement Act (J. & A. 1f 1400 et seq.).

    3. Municipal corporations, § 425

      —right of action in abutting owner for damages for change of grade. An abutting owner has a legal right of action for damages sustained by a change of gradé in a street improvement.
    4. Municipal corporations, § 606

      —how damages sustained by abutting owner through street improvement cannot be determined. Damages sustained by an abutting owner through a street improvement cannot be determined in the proceedings in the County Court instituted merely for confirmation of the assessment, nor can they be urged as a defense to the assessment.

      Appeal from the City Court of Elgin; the Hon. Frank E. Shopen, Judge, presiding. Heard in this court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 8, 1919.
    Eugene Clifford, for appellant.
    R. S. Egan and John K. Newhall, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

The City of Elgin took the necessary steps under the Local Improvement Act of 1897 (J. & A. ft 1388 et seq.) to pave Division street by passing an ordinance providing for this improvement and the payment of the same by special assessment of the property fronting on the street; and a special assessment was duly made and a petition filed in the County Court for confirmation of the assessment roll; and the assessment roll was made legally effective, by judgment entered confirming the same in the County Court.

This suit was brought by the appellee, Louise A. Botsford, against the appellant, City of Elgin, in the City Court of Elgin, to recover damages, which, she alleges, she suffered on account of the action of the city in cutting down the grade of Division street in front of her premises for the purpose of making the local improvement and laying the pavement in question; that the grade of said street, which had existed for a period of more than 25 years prior to the time it was cut down by the city, had given her easy, direct and convenient access to and from the premises in question; but that the improvement of said street as made cut off her ready means of ingress and egress; and that by reason thereof she sustained damages to the amount of $5,00b. There was a trial by jury which resulted in a verdict and judgment in favor of the appellee for $800. From the judgment this appeal is prosecuted.

It is contended by the appellant that the declaration does not state a cause of action, because there is no averment in the declaration that the acts of the city complained of resulted in a depreciation of the market value of the premises. It is true that a depreciation in the fair cash market value of the premises is the measure of damages, but it is not necessary that the measure of the damages should be stated in the declaration. The declaration has the usual ad damnum clause, and this is a sufficient averment on the matter of damages sustained.

It is also contended that the court erred in sustaining a demurrer to the appellant’s third special plea, which sets up the special assessment proceedings in the County Court for the confirmation of the assessment, and also sets up the judgment of the court confirming the assessment roll, which included adjustments for benefits by reason of the improvement to the property here involved; and it is claimed that the matters contained in the special pleas were res adjudicata on the question of damages resulting to the appellee on account of the construction of the pavement. There is no averment in the plea that any proceedings were had under section 13 and subsequent sections of the Local Improvement Act (J. & A. ¶ 1400 et seq‘), to ascertain what, if any, damages resulted to the property of the appellee for the purpose of making such compensation to her therefor, as provided for in said act. The matters alleged in the plea, therefore, were insufficient to constitute res adjudicata on the question of damages, and did not present a legal defense to this action, and the demurrer was properly sustained to the plea. City of Alton v. Miller, 206 Ill. App. 155.

The legal right to sue for and recover damages from a city in this kind of an action because of changes in the grade of the street is clearly established. City of Elgin v. Eaton, 83 Ill. 535; Rigney v. City of Chicago, 102 Ill. 64; Chicago & W. I. R. Co. v. Ayres, 106 Ill. 511; City of Bloomington v. Pollock, 141 Ill. 346; City of Joliet v. Blower, 155 Ill. 414; City of Chicago v. Jackson, 196 Ill. 496.

The damages claimed by the appellee could not be determined in the proceedings in the County Court, instituted merely for the confirmation of the special assessment made to carry out the contemplated local improvement, and could not have been urged as a defense to the assessment. White v. City of Alton, 149 Ill. 626.

A pavement might be of benefit to the property, and, at the same time, the cutting down of the grade of a street to lay the same might result in damage; and the consideration of benefits derived directly from the pavement is a question separate and apart from the matter of damages caused by cutting down the grade of a street. Village of Grant Park v. Trah, 218 Ill. 516.

The proof in this case shows that the appellee did suffer damages to the full extent of the amount recovered.

We find no error in the record, and the judgment is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Dibell

text:
    In the Matter of the Application for a Conservator for Jo H. Willits Dunning, Appellant.
    Gen. No. 6,572.
    1. Costs, § 85

      —when motion to retax on appeal may he decided. A motion to retax costs in the Appellate Court may be decided at a subsequent term.
    2. Costs, § 61

      —vacating of judgment on motion to retax. Under sections 26 and 27 of the Costs Act (J. & A. 1ÍU 2740, 2741), the court is authorized to vacate the entire judgment for costs on motion to retax.
    3. Costs—who not liable for on appeal. The costs of appeal cannot be taxed against the applicant in a proceeding for appointment of a conservator, under chapter 86, Rev. St. (J. & A. 1 7285 et seq.j, which contains no provisions for costs.
    4. -Insane persons, § 16

      —repeal of provision of statute relating to proceedings for appointment of conservator. The provision in section 1, ch. 86, as amended in 1895 (J. & A. f 7825), to the effect that proceedings for the appointment of a conservator should conform to chapter 85, was repealed by amendment in 1903 entirely omitting such provision.
    5. Courts, § 152

      —when affirmance of judgment for costs not authority in later case. The affirming of a judgment for costs by the Supreme Court without argument or brief questioning the right to tax such costs is not authority upon that question in later cases.
    6. Costs, § 64

      —power of courts to render judgment for. In the absence of statutory authority, the courts have no power to enter judgment for costs.
    7. Costs—liability of applicant for conservatorship. Section 8 of the Costs Act (J. & A. If 2722), authorizing the defendant to recover costs against the plaintiff, does not cover the case of an alleged feeble-minded person, prevailing over an applicant for a conservator.
    Appeal from the Circuit Court of Mercer county; the Hon. Wn> ixam T. Church, Judge, presiding. Heard in this court at the April term, 1918.
    Judgment for costs vacated.
    Opinion filed April 4, 1919.

      Robert L.. Watson, Homer D. Dines and Charles J. Scofield, for appellant.
    A. K. Hardy and John M. Wilson, for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

A. B. Childs, a brother of Mrs. Jo H. Willits Dunning, filed an application in the County Court of Mercer county for the appointment of a conservator for the estate of Mrs. Dunning on the ground that she was feeble-minded and incapable of caring for her estate, valued at $50,000. A conservator was appointed in the County Court and that action was confirmed on the trial of an appeal in the Circuit Court. Mrs. Dunning appealed to this court, and on July 25, 1918, in vacation, we reversed the judgment and remanded the cause. Our opinion appears in 211 Ill. App. 633. We entered a judgment against Childs for the costs. At the October term, 1918, Childs entered a motion to retax the costs. That motion was resisted. The costs of this court are very heavy, owing to the voluminous record from the court below, and the questions of law involved seemed doubtful, and we therefore took the motion under advisement.

When suggestions in support of the motion were filed, it was found that Childs did not seek the mere-correction of some item of costs, but asked to have the entire judgment for costs vacated on the ground that he is not liable for any of the costs of this appeal. Appellant thereupon contends that this is not in fact a motion to retax costs, but is an application for a rehearing, and as the time within which a rehearing could be applied for has long since passed, the motion should be denied, regardless of its merits. There would be much force in this position were it not for sections 26 and 27 of the Costs Act (J. & A. ¶¶ 2740, 2741). Section 26 provides, among other things, that if on a motion by any party to retax costs, the court should find any charge allowed for which the person charged is not liable, the court shall correct the taxation. Section 27 provides that if the court finds that any item in any fee bill is not authorized by law, the court shall quash the fee bill, and correct the taxation. Of course, under a motion to retax costs, the same power and duty would rest on the court if each item charged was one for which the party charged was not liable. Therefore, the taxation of these costs against Childs can be corrected on a motion to retax costs, if he is not liable therefor. We think it settled that such taxation can be corrected at a subsequent term. 15 C. J. 188; Chicago City Ry. Co. v. Burke, 102 Ill. App. 661; Tanton v. Keller, 78 Ill. App. 31.

Is Childs liable to Mrs. Dunning for the costs which she made in successfully prosecuting her appeal to this court? The proceeding is under chapter 86 of the Revised Statutes (J. & A. ¶ 7285 et seq.). Section 1 (J. & A. ¶ 7285) provides, among other things, that when any person having any estate shall be or be supposed to be incapable of caring for his estate by reason of a feeble or unsound mind, the County Court of the county where such person resides shall, on the application of any reputable citizen of said county, proceed to ascertain whether such person by reason of such unsoundness of mind is incapable of caring for his own estate. Later sections provide the manner of trial and require the appointment of a conservator if the person named is found incapable of caring for his estate by reason of unsoundness of mind, and provide for the conduct of the estate by the conservator. That chapter, as it now stands, contains no provision for the payment of the costs of the inquiry, if it be determined that the person named is not feeble-minded or incapable of caring for his estate. Chapter 85 of the Revised Statutes (J. & A. ¶ 7246 et seq.) is in many respects similar to chapter 86 in its procedure. It provides for the method of determining whether a person is insane and for committing and detaining a person adjudged to be insane. It defines the word “insane” so as to make it similar to the unsoundness of mind which makes a person incapable of caring for his own estate in chapter 86. Chapter 85 also provides for a conservator. Section 29 of said chapter 85 (J. & A. ¶ 7274) provides that if the person alleged to be insane is found to be insane, the court in its discretion may require the person to pay the costs who filed the preliminary statement that said person was insane, and may enter judgment against him for such costs. On July 1, 1895, an act came in force (Laws of 1895, p. 243) which amended sections 1 and 2 of said chapter 86, and said amended section 1 provided, among other things, that the proceedings under said act should conform as near as may be to the provisions of chapter 85. While said amended section 1 of chapter 86 was in force, it may well be that the provisions of section 29 of chapter 85 as to costs were applicable to proceedings under chapter 86, and that the court could, in its discretion, adjudge the costs against the person initiating the proceeding if the petition was defeated. But on July 1, 1903, an act came in force (Laws of 1903, page 247, J. & A. ¶ 7285 et seq.) which amended sections 1, 2 and 3 of said chapter 86 to read as therein stated. It entirely omitted the provision that the proceedings under chapter 86 would be the same as under chapter 85. That Act of 1903 contained no words expressly repealing said section 1 of the Act of 1895. In Joost v. Racher, 148 Ill. App. 548, we held that nevertheless section 1 of the Act of 1895 was repealed by implication by the Act of 1903 upon authorities there cited. We adhere to that conclusion for the reasons there stated, and cite also the following later authorities, viz.: People ex rel. Higgins v. Freeman, 242 Ill. 152; Lansden v. Alexander County Nat. Bank, 257 Ill. 309; Hillview Drainage & Levee Dist. v. Dowdall, 276 Ill. 33; and State Public Utilities Commission v. Cleveland, C., C. & St. L. Ry. Co., 283 Ill. 374. We are therefore of the opinion that there is now no provision in chapter 86 for the payment of the costs of the proceeding for the appointment of a conservator under that chapter, if the application for a conservator fails. People v. Payne, 161 Ill. App. 640. We are not unmindful that in Laird v. Dickirson, 241 Ill. 380, a proceeding of the same nature where the Circuit Court adjudged the costs against the persons who had filed their petition in the County Court to have Mrs. Dickirson adjudged feeble-minded and incapable of caring for her estate, the Supreme Court pointed out that this proceeding was under chapter 86, and that there was a judgment for costs against said applicants, and still affirmed the judgment for want of a sufficient abstract. This might be supposed to mean that such a judgment for costs could be lawfully entered against such an applicant, and that the correctness of the judgment would depend upon the matters appearing in the record. We have, however, examined the report of the said case in the Appellate Court (147 Ill. App. 324) and also the briefs and abstract filed in the Supreme Court, and find that the Circuit Court determined that jurisdiction of the supposed feeble-minded person had never been obtained, and that that question of jurisdiction was the only one argued in either the Appellate or the Supreme Court, and that it was not contended in the briefs filed in the Supreme Court that there was any lack of power to enter such a judgment for costs, and that appellants in the Supreme Court quoted in their brief section 1 of chapter 86, as amended in 1895, which authorized the court to proceed in conformity with the provisions of chapter 85. The court, therefore, in the Dichirson case, supra, was not passing on any question of costs, and it was not intended to be an authority on that subject.

It is the settled law of this State that costs are the creation of the statute, and that, if there is no statute for the recovery of costs, a court cannot enter a judgment therefor. We are of opinion that this case does not come within section 8 of the Costs Act (J. & A. ¶ 2722), authorizing a defendant to recover costs against a plaintiff. We know of no other statute applicable to this ease. The record justifies the conclusion that Childs brought and prosecuted this proceeding against his sister to further his own private interests, and hired the lawyers who acted against Mrs. Dunning, and that the public, or the State’s Attorney, took no part in the proceedings. Appellant contends that under these circumstances it is equitable that Childs should pay these costs, made by Mrs. Dunning in this successful appeal. Those considerations should have great weight with the legislature, but there is no statute authorizing a court to enter a judgment for costs merely because such a judgment would be equitable. This is not a suit in equity, but is a special statutory proceeding. The motion is therefore granted' and the judgment for costs is vacated.

Judgment for costs vacated.


text:
    Emma Lowe, Appellee, v. Lloyd W. Lowe, Appellant.
    Gen. No. 6,633.
    Husband and wife, § 217

      —when wife not entitled to separate maintenance. A wife living in the same house with her husband, although occupying a different room and eating at a different time, is not entitled to separate maintenance.
    Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Selm, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded with directions.
    Opinion filed April 4, 1919.
    Granger, Dougherty & Nourie, for appellant.

      No appearance for appellee.

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee filed a bill against her husband for a separate maintenance and had a decree in her favor, from which her husband prosecutes this appeal. No brief has been filed for appellee. Under our rule 21 (137 Ill. App. 628) we could have reversed the decree pro forma on the call of the docket, had we not concluded it proper to examine the case upon the merits.

Appellant owns a large farm in Iroquois county upon which the parties spent their early married life, and there their four children were born. When the children needed better school facilities than could there be obtained, appellant purchased a home in Kankakee City against his judgment and wishes and at his wife’s insistence, and there the family lived and there the children were educated, except that many years ago they returned to the farm for one year. In the winters appellant has frequently stayed at that Kankakee home all the time. During the rest of the year he has spent two or three nights each week at his home in Kankakee and the rest of the time on the farm, which is 8 miles from the Kankakee home. Many years ago appellant committed personal violence against his wife, and she brought suit against him for that cause, and that was settled by a written agreement between them that they would live and cohabit together as husband and wife and that he would pay her $50 per month for household expenses. It is not claimed that since that time he has ever been guilty of any personal violence towards her. It turned out that $50 per month would not pay the household expenses and that arrangement was abandoned. Many years ago she inherited a farm located near his farm. For some years thereafter the husband collected the rent from his wife’s farm. He then paid all the bills for the home and family. Several years later the wife insisted upon receiving her own rent, and that was conceded to her. Thereafter she paid for most of her own clothing and for a part of the clothing of the children and for a part of her doctor’s hills, and she paid the telephone and ice bills. He paid all the other expenses of the home and of heat, light, water taxes and repairs. The children have ail left home, except that one married daughter is temporarily living there. They are all of age except the boy, and he has quit school and is working on a farm and has apparently been emancipated. The husband has for many years been in the habit of swearing at his wife and calling her hard names and following her about the house and quarreling with her, especially when the bills came in. He claims that she also swears at him and has constantly quarreled with him and has done very mean things to him. She denies that she used profane language to him, and she is given a guarded support by her two married daughters, who however say that she talked back to their father, and talked loud. Just before this suit was begun appellant was insisting that he would move the furniture to the farm and would either rent the Kankakee home or would sell the property and use it to pay his debts. Appellee refused to consent to this, and testified that she would not remove to the farm. Appellant and appellee have not occupied the same sleeping room for several years, but there is no proof that appellant is to blame for fthat. This bill was filed November 16, 1917. At that time she stayed away from their home two nights and then returned thereto. She charged in her bill that on November 13, 1917, she was compelled to abandon the defendant and has not lived with him since. The decree found, to the contrary of this, that on November 13, 1917, defendant left the complainant and that ever since that time they have lived separate and apart. The cause was tried in June, 1918, and the parties were then living just as they had lived for several years. He was paying the household expenses as before, except for her clothing and doctor’s bills and the bills for telephone and ice. Though he has said he is going to move to the farm he has not yet done so-. Though she testified that she will not go to the farm, still she may yield on that point.

In Klemme v. Klemme, 37 Ill. App. 54, the court said: “When the bill was filed.the parties were living in the same house and eating at the same table, though they did not then and had not for several years prior thereto occupied the same room. Husband and wife living in that way are not living separate and apart, within the terms of the statute.” In Earle v. Earle, 60 Ill. App. 360, the opinion shows that the parties were living together as man and wife in their home in Chicago until a certain date, when the husband went to Florida, where he had much valuable property and where he spent much of his time. She did not object to his going, nor ask him to return. He was paying the expenses of the household. An allowance to her for alimony pendente lite and for solicitor’s fees in a suit for separate maintenance which she brought against her husband was reversed. In Will v. Will, 134 Ill. App. 67, an appeal from a decree granting separate maintenance, the opinion states that the wife was living in a suitable home which the husband had provided for them, and that the husband was paying all bills incurred by her. It was held that she was not living separate and apart from her husband, and the decree was reversed with directions to dismiss the bill. In Smith v. Smith, 156 Ill. App. 176, an action for separate maintenance, the husband, after a quarrel with his wife, left the home and went to his farm and said he would not return, but he did in fact intend to return and did return at the end of 3 days, and ever since that time, and at the time of the trial, the two were living in the same house, but occupying different rooms. The court held that the wife was not living separate and apart from her. husband, and therefore the decree was reversed and the cause remanded with directions to dismiss the bill. We concur in the views expressed in the foregoing eases. It is an indispensable requirement of the statute under which this suit is brought that the wife shall be living separate and apart from her husband without her fault. These parties are not living separate and apart. The fact that they do not occupy the same sleeping room is not sufficient to support the bill. Since this bill was filed, appellee does not go to the table when her husband is there. That is of her own volition and does not constitute a separation. This decree is not supported by our decision in Cooper v. Cooper, 160 Ill. App. 449. That was a separate maintenance case and the appeal was from an interlocutory order in favor of the wife for temporary alimony, suit money, and solicitor’s fees. The wife was living in her husband’s home and receiving a small allowance from him for household expenses, but the husband was living in California in adulterous relations with another woman and was about to return to his home, and the opinion shows that, because of those relations, it was impossible that she could remain in the home when the husband returned. Whether appellee here is required by law to remove to the farm if her husband removes there, and whether, if she refuses to go, she can then maintain a suit for separate maintenance, are questions which cannot .properly be decided until that situation actually arises.

The decree is reversed and the cause is remanded with directions to dismiss the bill for want of equity.

Reversed and remanded with directions.


author: Mr. Justice Carnes

text:
    American Spirits Manufacturing Company, Defendant in Error, v. Western Manufacturing and Oil Company, Plaintiff in Error.
    Gen. No. 6,590.
    1. Contracts, § 215

      —how contract to separate starch from corn construed. A contract to separate starch from corn and to return the starch to the party furnishing the corn must be construed as requiring separation of only such amount of starch as is practicable with the best machinery and the best operation.
    2. Action, § 37

      —when in assumpsit not changed to tort. In assumpsit for the value of starch lost in separation from corn for the plaintiff, the form of the action is not changed to tort by averments of wrongful taking and conversion.
    3. Assumpsit, Action of, § 89

      —proof of allegation of wrongful talcing. An allegation of wrongful taking in a declaration in assumpsit does not require strict proof.
    4. Contracts, § 381

      —when evidence as to acquiescence in mode of separation of starch from corn and quantities delivered erroneously excluded. In assumpsit for the value of starch retained by the defendant, acting under a contract to separate the starch from corn, return it to the plaintiff and keep the other parts of the corn, it is erroneous to exclude evidence that the plaintiff acquiesced in the mode of separation and the quantities of starch delivered, for several years, and that later the plaintiff undertook to do the separating by its own employees.
    5. Contracts, § 330

      —when party estopped to complain of method of separating starch from corn. In assumpsit for the value of starch alleged to have been retained by the defendant under a contract to separate the starch, return it to the plaintiff and retain the other parts of the corn furnished by the plaintiff, the plaintiff is estopped to complain of the method used by general superintendence and acquiescence in the mode of separation and quantities delivered for many years and subsequently performing the operation through its own servants.
    6. Damages, § 190

      —when evidence insufficient to support verdict for value of starch retained by defendant under contract to separate starch from corn. In assumpsit for the value of starch alleged to have been retained by the defendant under a contract to separate the starch, return it to the plaintiff and retain the other parts of the corn furnished by the' plaintiff, evidence as to the number of pounds of starch so retained and ultimately sold by the defendant with the other ingredients in its feed cake, and the selling price of the feed cake, is not sufficient to support a verdict for damages in the absence of evidence that the feed cake sold for as much as it would have brought without the starch, and an offer by the defendant to prove that the presence of the starch decreased the amount of oil obtained by the defendant from the remaining product.
    7. Appeal and erbob, § 1833

      —when plea of statute of limitations may he interposed after remanding. A defendant may be permitted to file a plea of the statute of limitations before a case is again called for hearing after reversal and remanding.
    Error to the Circuit Court of Peoria county; the Hon. Theodore N. G-been, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and remanded.
    Opinion filed April 4, 1919.
    - Charles H. Stoll, Winslow Evans and Ela, Grover & March, for plaintiff in error; Frank E. Grover, of counsel.
    Frank J. Quinn and Joseph A. Weil, for defendant in error; Levy Mayer and Alfred S. .Austrian, 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 Carnes

delivered the opinion of the court.

This is another action in assumpsit' by the same plaintiff against the same defendant and involving a consideration of the same contract and work done thereunder as American Spirits Mfg. Co. v. Western Manufacturing & Oil Co., 210 Ill. App. 454, where the Spirits Company obtained and held, a judgment rendered for services performed for the Oil Company in separating starch from oil, and other ingredients of corn, on proof of a written contract between the parties of February 20, 1897, modified in writing October 19, 1898, and afterwards modified by a course of dealing between the parties for many years. That suit was for services from October, 1914 to August 1, 1915, the last part of the period in which the parties were operating under the provisions of the written contract, and modifications thereof. This suit is based on the claim that during the whole period of about 17 years the work of separating the starch was imperfectly done so that the Spirits Company lost and the Oil Company gained thereby.

During the entire time the Spirits Company was operating a distillery at Peoria, Illinois, producing alcohol spirits or whisky from the starch of com, which had to be separated from the germ and the husk of the kernel. The starch only was useful for distilling purposes, but oil and feed cake, each of commercial value, were made from the germ and husk. The written contract provided that the Oil Company should take the com, separate the starch, and return it to the Spirits Company, retaining the other parts of the kernel for its own use and profit. It is agreed that a perfect separation of the starch is not possible with the best of machinery and the best of operation; that inevitably some per cent of the starch will pass into the feed cake, which sold as food for cattle; therefore, it must be presumed that the contract meant and was understood as requiring only such a separation and return of the starch as was practicable. The amount of starch so lost in such processes depends upon the character of the machinery, the method of operation, and the quality of the corn. Even with the best of machinery and operation so much rests on the quality of the com that it is a matter of estimate; and there is no claim that experts can accurately state what per cent might be reasonably lost during so long a period of operation as we are here considering.

The declaration charged that the Oil Company wrongfully and without the Spirits Company’s consent became possessed of 800,000 bushels of starch and starch content, the property of the Spirits Company, and wrongfully applied said property to its own use, and afterwards promised to pay the Spirits Company the reasonable value of the same. The defendant pleaded the general issue in assumpsit. There was a verdict of $250,000 for the plaintiff, on which judgment was entered, and the Oil Company prosecutes this writ of error.

There is some discussion in the briefs as to the form of the action, whether in tort or assumpsit, and while it is averred in the declaration that the defendant wrongfully took and wrongfully converted the property, we think there is no question that the action is assumpsit, and to be governed by the rules applicable to that form of proceeding. It was so assumed by the Oil Company in its plea of the general issue, and is so assumed here in different expressions in its brief. The gist of the plaintiff’s claim is that the defendant had obtained and sold the plaintiff’s property, and therefore an implied promise to pay for the same, regardless of the question whether a tort was committed. Counsel for the Oil Company repeatedly state that under the declaration it was imperative that the plaintiff prove a wrongful taking, but they cite no authority. It is said in 21 Encyc. Pl. & Pr. 658: “Where all the elements of a contract are alleged, averments characterizing the conduct of the defendant as fraudulent, negligent, or wrongful, or charging him with conversion, may be rejected as surplusage.” And in 5 Corpus Juris 1399: “Matters of aggravation set forth in a count in assumpsit do not change it to a count in tort.” We know of no authority supporting counsel’s contention that the allegation of wrongful taking required strict proof, and presume if there were any it would have been cited.

On the trial the Spirits Company introduced evidence of the written contracts, the amount of oil obtained by the Oil Company, the amount of feed cake that would ordinarily have resulted in handling com enough to produce that quantity of oil, the amount of feed cake actually sold by the Oil Company, and that the excess of cake so shown came from retaining too much starch in the separating process. The Oil Company offered evidence, which was rejected, that the work was not in fact done under the provisions of the written contract; that early in the period it was arranged that the Spirits Company instead of the Oil Company should furnish the machinery and labor to separate the starch, oil and cake, and that thereafter for about 15 years the work was so conducted, the Spirits Company charging a quarter of a cent a bushel for grain mashed; that the officers of the two corporations were to a large extent identical, and the Spirits Company in fact substantially controlled the whole situation, not only furnishing the machinery to do the work, but also to a considerable extent marketing the feed cake and oil; that the machinery used by the Spirits Company in the separation was not proper for that purpose, and different and better machinery should have been procured and used; that all the time from day to day, and month to month, and year to year it was perfectly apparent that the quantity of starch now complained of was being lost to the Spirits Company and gained by the Oil Company in the increased quantity of oil cake sold; that the Spirits Company not only acquiesced in this manner of separation without protest or question during the entire period, but also assumed not only the work but the responsibility of a proper division. Such evidence was repeatedly offered in varying forms, and objections thereto sustained. The Spirits Company undertakes to support the ruling of the court by saying that the evidence rejected was entirely immaterial unless the Oil Company desired to recoup damages of the Spirits Company for not properly performing services it had undertaken to render the Oil Company, and that the Oil Company repeatedly stated it was not proceeding on the theory of recouping such damages.

We think that character of evidence was pertinent. Under the written contracts the Oil Company assumed a burden to furnish skill, labor and machinery to separate the starch from the balance of the com, and to return the starch to the Spirits Company. That obligation could not, like an obligation to furnish so many bushels of com or gallons of liquid, be accurately measured. Its performance from time to time rested largely on the consent and acquiescence of the parties. It was therefore material that frequently during the time in question the Spirits Company acquiesced in the separation as then made, and more material that it for a consideration undertook to relieve the Oil Company of all discretion and labor in making the division.

Counsel for the Spirits Company rely on Devine v. Edwards, 87 Ill. 177, a case in which there was a mistake in measurement of milk delivered, resulting in the purchaser’s receiving less than his contract required. The deficiency was capable of certain proof. It was held that the purchaser might recover damages, notwithstanding he could with reasonable diligence have detected the mistake when the milk was delivered. It was like a case of error in counting money in which, no doubt, the injured party may have relief even if the mistake is in part due to his own carelessness. If it had been a sale of butter fat and the purchaser had undertaken, even as the agent of the seller, to separate it, and had for a long time treated the division so made as a compliance with his contract, he could hardly be heard to say years afterwards that he might have used different appliances and obtained more fat and was entitled to recover for the loss of what he had permitted to escape into the skimmed milk. That he would have no standing in court to make such claim we think appears in Noble v. Illinois Cent. R. Co., 111 Ill. 437, an opinion written by the same judge of the Supreme Court, with no indication that it was regarded in conflict or inconsistent with anything said in the Devine case supra. The defendant had the right to remove gravel from the plaintiff’s property, but had no right to take sand. All gravel deposits contain some sand, and sand deposits contain some gravel, so that it might become a matter of opinion whether a load removed from the premises should be classified as sand or gravel. It was held that the plaintiff by assisting in the removal of the material, and so treating it as gravel and failing to make any objection to the work, gave a construction to the contract. If he intended to object that it was sand instead of gravel he should have done it then; that “His silence, under the circumstances, was a recognition of the rightfulness of defendant’s construction of the provisions of the deed. By acquiescing in the removal of the gravel from Ms land, and assisting therein, he, at least by necessary implication, licensed what was done, with his consent”; that not having objected at the time the work was done, the defendant and its servants were justified in assuming that they were proceeding rightfully, or at least with the plaintiff’s consent. This case has not been cited since on that point in our reported decisions. The principle is there announced without citation of authority, and it may be too plain to require any. Counsel for the Spirits Company say that the case is not authority here because it was an action in tort, and the plaintiff, having assisted in removing the gravel, could not say it was wrongfully taken. The decision is not placed on that ground, but distinctly rests on the fact that plaintiff, having acquiesced in the defendant’s claim that the material removed was gravel, was estopped to afterwards claim it was sand. In the Devine case, supra, there was a definite contract as to quantity of milk and a definite deficiency of delivery, easily ascertained. It did not differ in principle from an agreement to pay $100 and a payment instead of $90. If it had been an agreement to deliver day by day sufficient milk for the defendant’s baby, and there had been delivered more than the amount so required, the parties would, by continued course of dealing, have put a construction on the contract as to the quantity of milk called for that they could not afterwards dispute. Or even had it been a contract for the delivery of a quart of milk a day, and the purchaser had been the daughter of the seller and had received for months and years more milk each day, paying only for one quart, it would have been apparent that the father intended a large measure, and intended a gift of the surplus. He would not have been permitted at the end of a 15-year period when he might become estranged from his child to sue and recover for the surplus of milk so delivered. That parties become bound in certain construction of a contract by long and continued course of dealing is a principle relied on, citing authorities, in our decision of the former case. (210 Ill. App. 454.) The reasoning and authorities cited there apply here. In the present case, as we have seen, there was no way of definitely measuring the starch that from time to time under the best of operation should pass into the feed cake. There might be a difference of opinion whether more than a reasonable amount was so passing. The 'Spirits Company itself made the separation, which meant at least that it was thoroughly informed all the time of what was done. It was under the same obligation to object if it thought it was losing too much starch as was the plaintiff in the Nohle case, supra, to object if he thought he was losing too much sand. For some reason, which the record does not disclose, and which is not very material, it not only acquiesced in but practically directed the manner of separation and the quantity of starch that should pass into the feed cake for a great number of years. It should not now be permitted to complain.

It follows that in our opinion the court erred in rulings on evidence and instructions that should have conformed to the law as above indicated. The record is voluminous. The Oil Company in its endeavors to support its theory of the case offered much evidence that would not have been necessary had the court adopted its view of the case and permitted evidence thereunder. Some of it was incompetent for other reasons. We do not think it necessary to extend this opinion by discussing those various items of evidence and determining as to each whether it would have been competent and necessary if the trial court had acted on the law as we now hold it. Another trial based on the law so held should relieve the record of substantial errors here complained of in rulings on the evidence and instructions to the jury.

The Oil Company insists that the measure of damages, if any, was the market value of the starch, which it obtained, and not the increased value of its feed cake; and that as there is no evidence as to the market value of the starch, there is no basis for a substantial verdict. The Spirits Company answers that it was not trying to recover for the market value of the starch but was suing for the money that the defendant received by wrongfully taking and selling its property. Assuming that a defendant is liable in assumpsit for money obtained from the wrongful sale of the plaintiff’s goods, still, it is not clear that the facts of this case bring it within that rule. The defendant did not take the plaintiff’s starch and convert it into money as a separate transaction so that it could be definitely known what it obtained for it. The starch was added to the feed cake increasing the weight of that article. Whether the feed cake sold for as much or more per pound because of the addition of more starch than would ordinarily be expected does not appear. Counsel for the Oil Company say they were prepared to prove that their client lost money by an extra quantity of starch going into the feed cake; that it diminished the quantity of oil obtained in the separation, losing more thereby than was gained on the cake. If the Spirits Company had wrongfully got possession of starch that belonged to the Oil Company and converted it into whisky, it would hardly occur to any one that the measure of damages would be the increased selling price of the whisky produced by the Spirits Company. We are inclined to the opinion that the evidence of value was not of a character to warrant the verdict.

Error is assigned and argued on numerous other occurrences of the trial. There was a conflict between the court and counsel giving rise to much confusion. A part of the misunderstanding arose from the position of the president of the Oil Company assuming that he had the right to appear and conduct the defense, not as an attorney, but as a party to the action. Whether he had the right is a question not much argued by counsel, and not very material. During the trial the Oil Company asked leave to introduce another attorney, which was denied. It also asked leave to file a plea of the statute of limitations, which was denied. As the judgment is reversed here for other reasons, we deem it unnecessary to decide whether the court erred in those rulings. There is no reason why other attorneys may not be permitted to act for the Oil Company on another trial, or why it may not be permitted to file a plea of the statute of limitations before the case is again called for hearing. It is not very important whether the president of the Oil Company appears in the next trial as an attorney for the defendant or as its president. We presume if objection is then made to his appearance as the president he will be prepared to enlighten the court by citation of authority on the right of the president of a corporation to appear in a litigation in that character only; and, failing to find such authority, necessary arrangements can be made for counsel to defend the action.

For the reasons above indicated the judgment is reversed and the cause remanded.

Reversed <md rema/nded.

Mr. Justice Niehaus took no part.