text:
    Catherine Boening, Appellee, v. North American Union, Appellant.
    Gen. No. 14,989.
    1. Appeals and ekrobs—when questions of law not preserved. In-cases tried toy the court without a, jury if no propositions of law are submitted and no questions of law or fact raised on the trial by motion or otherwise except as to rulings on evidence, there is nothing" for the Appellate Court to consider but the propriety of such rulings and the presumption will be indulged that all questions of law otherwise were correctly decided.
    2. Appeals 'and ekrobs—when question of waiver not considered. If the facts constituting the waiver are undisputed -the question of waiver is one of law ,and if the record does not preserve questions-of law for review such question of waiver will be presumed to have-been correctly decided.
    3. Appeals and ebbobs—when objection to ad damnum comes too late. An objection in the Appellate Court for the first time that the-amount of the judgment exceeds the ad damnum in the declaration, is too late.
    4. Evidence—when improper will not reverse. On a trial by the court without a jury if improper evidence is admitted it will not be-presumed that it misled the court.
    6. Evidence—competency of postal cards. .The contents of a postal card duly sent by mail is competent without proof of the affixing of a stamp.
    6. Interest—upon benefit certificate. Interest is properly allowed" upon money found to be due under a benefit certificate in a fraternal organization from the time that liability thereon becomes fixed.
    Assumpsit. Appeal from the Circuit Court of Cook county; the-Hon. Lockwood Honobb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed May 3, 1910.
    Statement by the Court. The plaintiff brought this-action to recover as beneficiary $1,000 on a certificate-issued February 23, 1904, to her son, George O. Boening, by a society known as the American Fraternal League. This society was on May 2,1904, absorbed by and merged into the defendant, North American Union,, appellant. Shortly after the merger, the defendant notified by letter all the members of the lodge of the-American Fraternal League, of which Boening was a member, that the consolidation had taken place.. La the letter was enclosed a certificate of membership. This was called “a certificate of transfer and reinsurance.” The letter directed each member of the lodge to attach the new certificate of transfer to the old certificate as a “rider.” The letter also directed the members tó ‘ ‘ continue complying with financial requirements.”
    Boening died June 12,1904, and it was stipulated on the trial that defendant received proper proofs of death in conformity with its by-laws.
    The following facts proved by the plaintiff were not controverted on the trial. At the time of the consolidation of the societies in May, 1904, there was in force a by-law of the American Fraternal League which provided that all “dues shall become due on the first day of the month and be payable on or before the last day of the month and any member who has failed to pay all' or any of said payments on or before the last day of the current month shall stand suspended by operation of law without notice.” This by-law was treated as in force by the appellant in its dealings with its members after the consolidation.
    Other by-laws of the defendant provided that in the event a member thus became suspended for non-payment of dues, in order to be reinstated it was necessary for him to pay his dues on or before the 15th day of the month in which suspension occurred, pay all back dues, and also file with its collector a statement of good health, and then upon his reinstatement the collector must immediately notify defendant’s general manager and file with him such statement, and notify the secretary of his council.
    On June 2,1904, Boening was two months in arrears in payment of his dues for the preceding months of April and May. He stood suspended by operation of the by-laws above stated. On that day defendant’s collector informed defendant’s Supreme Secretary by mail that Boening and several other members of the lodge were delinquent and stood suspended for nonpayment of dues. June 6, 1904, Boening through his brother, paid his back dues for April and May, and the payments were endorsed on his pay card by Crompton, defendant’s collector. Boening was then sick, but this fact was not known to Crompton. Crompton on the same day mailed a postal card to Pickett, defendant’s secretary, informing him that Boening on that day had been reinstated. Crompton paid over to the financier of the defendant the money received by him, and the defendant still retains the money.
    Boening’s sickness developed into pneumonia, and he died on June 12, 1904.
    A jury was waived and the cause was submitted to the court for trial. The court found for the plaintiff and entered judgment against the defendant for the amount of the certificate and interest thereon, $1,175. The defendant excepted to the judgment, and prosecutes this appeal to reverse it.
    B. E. Hamilton, for appellant.
    John B. Philp and W. S. Johnson, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The case was tried by the court without a jury, and no “written propositions” were submitted to the court “to be held as law in the decision of the case;” nor was any question of- either law or fact raised on the trial by motion or otherwise, except as to rulings on evidence. “Where a case is tried without a jury and no propositions of law are submitted to be held by'the court, it will be presumed that all questions of law were correctly decided.” Davies v. Phillips, 27 Ill. App. 387; Boehm v. Griebenow, 78 Ill. App. 675; Overbeck v. Ahlmeier, 106 Ill. App. 605.

The theory of plaintiff’s case is that the acceptance of Boening’s back dues by the defendant after he was suspended as a member, and with full knowledge that he was declared reinstated by his lodge, and the retention by the defendant of such back dues up to the time of the trial was a waiver by the defendant of the default and suspension and of the right to declare a forfeiture. There is in the record no substantial controversy in the facts upon which this contention is made. In Conductors Benefit Ass’n v. Tucker, 157 Ill. 194, it was held at page 201 of the opinion: “What acts will in all cases amount to a waiver of a forfeiture of membership in a mutual benefit society cannot be definitely stated, but conduct on the part of the society, which amounts to a recognition of a member’s claim to the continuing rights of membership, will relieve him from the consequences of his default. The receipt of assessments after default in payment is a common form of waiver. The question of waiver is in most cases a question of fact for the jury.” See also Jones v. Supreme Lodge K. of H., 236 Ill. 113. . If in this case the question of waiver be a question of fact, that question was settled by the finding of the trial court, for the finding is not manifestly against the weight of the evidence. There is evidence in the record tending to support the finding of waiver by the defendant, and upon which the court might reasonably so find. If, on the other hand, it is a question of law in this case, the question is not preserved in the record under the authorities cited above. We are of the opinion that the facts as to the waiver being undisputed in this record, it is a question of law; and that the presumption must be here indulged that it was correctly decided.

Various errors of the trial court in its rulings on evidence are urged as grounds of reversal.

In the first place, on a trial by a court without a jury, if improper evidence is admitted, it will not be presumed that it misled the court. We will not presume that the court considers immaterial or improper evidence in reaching its decision. Merchants’ Despatch T. Co. v. Joesting et al., 89 Ill. 152; Mallers v. Crane Co., 92 Ill. App. 514. If, however, there is no material or competent evidence on the issues before the court, or if the propositions of law held or refused, or the rulings of the court on motions show that the finding and judgment of the court must have been based necessarily upon immaterial or improper evidence, it then becomes the duty of this court to consider the rulings and decisions of the court on the evidence. This record does not show that the court considered or based its finding and judgment upon immaterial or improper evidence. This consideration makes it unnecessary to consider many of the alleged errors in rulings referred to in argument.

We find no material error in the admission of the letter from the defendant to George C. Boening dated May 6, 1904.

The court did not err in overruling the objection of incompetency and irrelevancy to the question put to the collector of the defendant, Crompton: “State whether or not those were all the dues and assessments that were due from him (Boening) to the North American Union at the time those dues were paid?”

We think the court properly admitted evidence of the contents of the postal card sent by mail to the secretary of defendant. It was shown that the witness deposited the postal card in a United States mail box, and • if it was a postal card it needed no stamp placed upon it.

The trial court did not err in adding interest to the amount of the certificate and including it in its judgment. Grand Lodge B. of L. F. v. Orrell, 206 Ill. 208.

Appellant objects here for the first time that the amount of the judgment exceeds the ad damnum in the declaration. This objection comes too late. Grand Lodge A. O. U. W. v. Bagley, 164 Ill. 340.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Me. Justice Smith

license: Public Domain

text:
    Antoni Nowakowski, Appellee, v. The G. H. Hammond Company, Appellant.
    Gen. No. 14,952.
    Contributory negligence—when bars recovery. Held, that the plaintiff in this case, who was injured while working as a steam fitter’s helper at the plant of the defendant by stepping upon the cover of a blow tank containing steam, hot water and grease, which cover went down under his weight and he was scalded, was guilty of such contributory negligence as a matter of law which barred a recovery.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of fact.
    Opinon filed May 3, 1910.
    Statement by the Court. This appeal is from a judgment of the Superior Court in favor of Antoni Nowakowski, plaintiff, and against the appellant, Gr. H. Hammond Company, defendant, in an action for damages for personal injuries sustained by him on July 17, 1907, while working for defendant as a steam fitter’s helper at its plant in Chicago. Plaintiff stepped upon the cover of a blow tank containing steam, hot water and grease. The cover went down under his weight and he was scalded.
    The defendant company was engaged in the business of packing meats. In connection with that business it manufactured various by-products; and in the conduct of such business it had on its premises a catch basin, about four yards wide and one hundred yards long, into which was collected from various buildings of defendant’s plant grease and water. As the grease collected on the surface of the water it was skimmed off and put into barrels and trucked up to a small platform at the west end of the catch basin, and was there dumped into a tank called a blow tank. This tank was made of iron about three-eighths of an inch in thickness. It was cylindrical in shape and about six feet six inches long, and three feet in diameter. It was set in the ground on one end so that about two feet of it. extended above the ground.
    The upper end of the tank was oval in shape. In the east center part of the top of the tank there was an opening elliptical in shape about ten inches wide and sixteen inches long. An iron cover weighing about 45 pounds was provided and fitted in the opening from the under side of it in such a manner that when the tank contained a quantity of grease, and steam was forced into the tank, the cover was forced up into and against the opening. By causing a sufficient pressure of steam in the tank the grease was forced up through a pipe three inches in diameter 'to the third floor of a building alongside of the tank. When there was no . pressure of steam in the tank the cover was ordinarily held in place by two clasps or crabs each of which was in the shape of an arch. The points of the arch rested on the top of the tank at the edge of the opening, spanning the opening. From the center of each arch a bolt extended down to and fastened into the center of each end of the cover. There was also attached to the cover a chain, the other end of which being fastened to a discharge pipe three feet above the tank, prevented the cover from falling to the bottom of the tank. Over and around the blow tank was a platform about six feet square. The plaintiff: proved by his evidence that, the oval top of the tank was, on July 17, 1907, about four inches above the platform, and that there was no' hopper around the opening into the tank. The defendant, on the other hand, shows by its evidence that the oval top of the tank on that date was below the platform and that there was a hopper constructed in the platform around the opening into the tank about twenty inches square and eight inches deep and the top of it was about six inches above the platform. The hopper was constructed and used for the purpose of pouring the grease into the blow tank from barrels.
    Upon a requisition made and an order given thereon in accordance with the regulations in force in the defendant’s establishment, the plaintiff’s witness Quinlan and the plaintiff, who was his helper, in the morning of July 17, 1907, put a pop valve, as it is called, on the blow tank. They adjusted the valve to a pressure of 45 pounds. Quinlan did most of the work, the plaintiff standing around holding the tools and looking on. They finished this work between ten and eleven o’clock and went to another job near there and worked until noon. They then went to their luncheon. As they were returning to their- work after luncheon,, Christie, whose duty it was to skim the grease off the catch basin and put it in the blow tank, was at the tank and Quinlan and the plaintiff stopped there, as they claim, because Christie said to them “that thing ain’t working perfectly.” Quinlan asked the plaintiff to go with him to the blow tank. Christie told them that there was steam in the tank, and Quinlan saw. Christie tap with his wrench on the cover, and it sounded as if the tank were full. He also saw that the cover was held up, although there was no crab on it. Quinlan told Christie that he would have to send in a report about it, and ordered the plaintiff to ‘ ‘ come on, ’ ’ at the same time starting up the incline leading from the platform to the walk along the side of the building adjoining the tank. The plaintiff says in his testimony that he started to follow Quinlan and “happened to walk into that manhole there, and when I stepped into that manhole my foot slipped on the cover and I got in there and got scalded.”
    Christie gives a different account of what took place at the time of the accident. This we shall refer to in the opinion and it need not be stated here.
    Frank M. Cox and R. J. Fellingham, for appellant.
    White, Mabie & Conkey, for appellee; Lemuel 1ST, Ackley, of counsel.
   Me. Justice Smith

delivered the opinion, of the court.

The evidence in the record presents sharp controversies upon two questions: first, whether the oval end of the blow tank projected about four inches above the platform around it at the time of the injury, July 17, 1907, as claimed by the plaintiff’s witnesses, or whether the upper end of the tank was below the platform, and there was a hopper leading into the hole in the tank and extending five or six inches above the platform, as represented by the photograph offered in evidence, and testified to by the defendant’s witnesses; second, did the plaintiff “happen to walk into that manhole,” as he testifies, or, did the plaintiff say to Christie as he was standing there pushing on the cover with his wrench in order to let steam escape from the tank, “I will fix it,” and take off the only crab that loosely held the cover in place, and press down with his foot on the cover, and although warned to get away by Christie, put his whole weight on the cover which went down under him, as Christie testifies?

A large part of the testimony on both sides of the case is directed to the establishment of the respective contentions of the parties as to the physical situation •at the tank as stated above. Plaintiff offered the testimony of Donovan, Quinlan, Smith, Barber, Rogers and of himself, to establish his contention that the tank projected above the platform, and that there was no hopper there at the time of plaintiff’s injury. The defendant offered the testimony of Mulree, Florrie, Watt, Custer, Christie, Phillips, Schurtz, Colsell, •Swanson, Vorva and Shearer, and a photograph of the place showing the platform, hopper, pipes and situation around the blow tank, to show that on the day of the accident the top of the tank was covered as shown in the photograph, and that the hopper was there and .had been there ever since the platform was built.

Upon a consideration of all the evidence on this subject, and the character and experience of the witnesses, together with their opportunities to observe and know the physical situation in regard to which they testified, we are of the opinion that the tank platform and approaches thereto were on the day of the accident in the condition shown by the witnesses for the defendant and that the hopper was there and projected above the platform about six inches. This, we think, is shown by the manifest weight of the evidence. We think the construction of the platform and hopper as shown by the evidence for the defendant is reasonable and far better adapted to the use which was made of them than the construction shown by the evidence for the plaintiff.

In our opinion, however, it can make little difference which theory of construction is adopted in the solution of the questions of contributory negligence and of negligence of the defendant upon the evidence in the record. It is clear from plaintiff’s and Quinlan’s testimony and the testimony of Christie that the plaintiff knew that there was steam and grease in the tank, and that he stepped upon the tank cover unnecessarily and carelessly with knowledge of the danger in so doing if the cover should go down. If the construction of the platform was around the tank leaving the oval shaped end projecting above the platform four inches according to the contention of the plaintiff, the lid or cover of the tank was evidently not intended to he a place to step upon for any purpose; and it was as clearly contributory negligence for the plaintiff to step upon the «over so elevated above the platform with the knowledge that the tank was full of grease and steam, as it would be for him to step into the hopper with the same knowledge.

There can be no doubt on the evidence that the plaintiff had full knowledge of the existence of the tank and the use of the cover. Quinlan’s testimony, as well as his own, shows that during the time they were there putting on the pop valve the plaintiff stood on the platform holding the tools and watching the work. Quin-Ian tested and set the pop valve after he had put it on to blow off at 45 pounds pressure. In order to do this it was necessary to put the lid of the tank in place and turn on the steam. This was done, according to the evidence, while the plaintiff was there. The plaintiff testified that when they went back to the tank after their noon luncheon, Quinlan “went on one side and I went on the other side of the tank. Charley (Quinlan) opened a small valve there. When he was doing it he said ‘ come on, let us go; we have nothing to do with this.’ And when I started I happened to walk into that manhole there, and when I stepped into that manhole, my foot slipped on the cover and I got in there and got scalded, and was all soaking wet, and grease and steam and all kinds of stuff were coming out together. I went down above my ankle there. When I was standing at the tank I was pretty close to the manhole there, not very far from there. I was standing watching Charley what he was doing, because there was no room there where he was and I went around the other side. There was no room because there was no platform there wide enough, and I didn’t want to stand too close to him whenever he cut out the steam, so as not to get scalded, so I went over on the other side.”

The evidence shows that plaintiff and Quinlan and Christie were standing around the top of the tank within a few feet of each other, and it is impossible that plaintiff did not hear the conversation between Christie and Quinlan with reference to steam being in the tank and Christie’s desire to get it out of the tank. Quinlan opened a valve with the remark “that will relieve it.” Plaintiff says he saw Quinlan open this valve. This would necessarily relieve the pressure on the lid of the tank, and yet after this was done plaintiff stepped upon the lid which was in plain view, and occupied only a small section of the head of the tank.

We think the plaintiff was guilty of contributory negligence, and that he cannot recover.

This conclusion disposes of the case. It is therefore-unnecessary to consider the other questions presented by the assignment of errors and in arguments of counsel. The judgment is reversed with a finding of fact-

Reversed with finding of fact.


author: Mr. Justice Smith

text:
    Frank V. Campe, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,972.
    Ordinary care—burden of proof to establish. In. an action on the case for death caused hy alleged wrongful act the burden of proof is on the plaintiff to establish by a preponderance of the evidence the necessary averment of the declaration that deceased was exercising care and caution for his own safety.
    Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of fact.
    Opinion filed May 3, 1910.
    Statement by the Court. This appeal is taken to reverse a judgment entered on a verdict returned for the plaintiff in an action to recover damages resulting from the alleged negligence of the defendant causing the death of Michael J. 0 ’Donnell. The deceased was injured in a collision between a carriage he was driving south on State street, Chicago, in defendant’s northbound track and a cable train running north on that track.
    The collision took place on February 14, 1904, shortly after six o ’clock in the evening, about one hundred and twenty-five feet south of Thirty-fourth street. There were no obstructions in State street between Thirty-fourth and Thirty-fifth streets, and there was no other carriage or car in that vicinity. The street lamps and electric signs were lighted along this block on State street, and trains and cars conld be seen readily for a long distance. The night was clear and cold. State street along this block was paved from curb to curb and there was sufficient room between the street car tracks and the curbs on either side for two vehicles to pass each other.
    O’Donnell was in the livery business. He had his own carriages and horses and attended funerals and weddings, and kept his rigs on Emerald avenue between 44th and 45th streets. On the morning of the Sunday of the accident he told a friend that he was going to a funeral, that day. No one of the witnesses in the case saw him from that time until about- the time •of the accident. He was first seen north of Thirty-fourth street on the west side of State street. 0 ’Donnell’s horses then turned from the west side of the street and went in a southeasterly direction to the east' side of State street at or near Thirty-fourth street. Before reaching the east curb of the street the team again turned and proceeded southwesterly until it reached a point a little south of Thirty-fourth street between the north and south car tracks. At this point they started directly south between the tracks with the east or left hand wheels of his carriage running along the west rail of the easterly or north-bound track of the defendant. During all this time the horses were moving at a brisk trot.
    About the time the carriage crossed over to the east side of the street, a north-bound cable train of the defendant was leaving Thirty-fifth street, having stopped at the north side of Thirty-fifth street to receive passengers. The block between Thirty-fourth and Thirty-fifth streets is 629 feet long. The gripman of the train saw the carriage turn over to the east side of the street and supposed the driver was going to let off passengers at the east curb. When he saw the horses turn west as if to cross the tracks again there were several hundred feet between the train and the carriage. When the team changed its course from a southwesterly direction and started directly south, the gripman sounded his gong vigorously. The horses continuing to come directly south, the gripman released the cable and applied the brakes and stopped his train in a very short space. The front east wheel of the carriage collided with the northwest corner of the grip car with sufficient force to break the wheel, the horses just before the collision having suddenly veered to the west and having passed the grip car untouched. The collision caused the driver, O’Donnell, to pitch forward, and one of the horses fell upon him.
    VmcEHT J. Duhcah and O. Le Boy Browh, for appellant ; Johh B. Harrihgtoh, of counsel.
    Bichard J. Fish and A. L. Gettys, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The question which thrusts itself to the fore, upon a review of the evidence in this record, is, did the deceased 0 ’Donnell exercise due care in driving his team just prior to and at the time of the collision? The burden of proof was on the plaintiff to establish by a preponderance of the evidence the necessary averment of the declaration that he was exercising due care and caution for his own safety. Does the evidence sustain this averment? Upon a careful consideration of the evidence we are of the opinion it does not.

There is no real controversy in the evidence as to the course which O’Donnell’s team took from a point on the west side of State street north of Thirty-fourth street to the point of collision, when the times of viewing the carriage and the positions of the witnesses are considered. That course is outlined in the above statement. It appears to have been purposeless, unusual and singularly erratic, and wholly without regard to the approach of the defendant’s train which was in plain view with nothing intervening to interfere with or obstruct O’Donnell’s view for a moment. The evidence presents no reason or excuse for driving from the west side of the street, where he belonged while driving south, to the east side, and then turning in a southwesterly direction and proceeding to a point between the north-bound and south-bound tracks without clearing the north-bound track, thus putting himself directly in front of the approaching train. O’Donnell’s course from this point directly south toward the approaching train, while the gong was being sounded and the headlight and other lights were burning, cannot be reconciled with the exercise of due care and caution on his part. The only fact which appears in the evidence, indicating any care for his own safety and welfare, is that the left wheels of his carriage skidded or slid along the track for twenty feet before the collision occurred. This fact, however, does not mean much as indicating an effort to avoid the train in view of the further facts, that 0 ’Donnell had no load in his carriage, and the distance directly south which the team traveled, and the speed at which the team was going and that it was continued unchecked up to the moment of the collision. There could be no difficulty in driving an empty carriage across the tracks, or in pulling it out of the track of the approaching train, with the slightest care on the part of the deceased. We are constrained to the conclusion, from all the circumstances of the case, that 0 ’Donnell was not exercising the slightest care in driving his team. The course the team took and the speed at which it traveled up to the moment of the collision warrants the belief that 0 ’Donnell was either asleep or stupified. We do not base the belief that he was stupified upon the evidence that after he was taken to the hospital the odor of liquor was about Mm, for liquor may have been administered to him as a restorative in the drug store to which he was taken immediately after the accident. But the aimless and unaccountable course of his team lends support to the testimony of Arthur Tremah, the grip-man, brought out on cross-examination:, that the driver of the carriage did not have any control of the horses and did not appear to be paying any attention to anything. He sat with his hands hanging down and the reins “were hanging loose.” This testimony is not specifically denied, although some of the witnesses testify that they did not notice anything peculiar about the driver of the carriage.

On this issue of want of due care or contributory negligence on the part of deceased there is substantially no direct evidence on the part of the plaintiff that O’Donnell was exercising ordinary care, but there is ' much evidence tending to establish a failure to exercise any care whatever. We think he was guilty of contributory negligence. As the court said in Chicago West Div. Ry. Co. v. Bert, 69 Ill. 388, where the plaintiff was driving in Milwaukee avenue and a street car was going in the opposite direction: “It was his duty, under such a state of facts, .to turn out to avoid the -car, the driver of- the car being unable to turn to the right or to the left, and if through negligence or wilfulness on his part in. this respect, a collision ensued, he is not entitled to recover damages against the company, even if the latter were also in default.” This rule was reiterated in North Chicago Electric Ry. Co. v. Peuser, 190 Ill. 67. See also Chicago Ry. Co. v. Soszynski, 134 Ill. App. 149; Chicago Union Trac. Co. v. Jacobson, 217 Ill. 404, 408; Memphis Street Ry. Co. v. Roe, 118 Tenn. 601; South Covington & C. St. Ry. Co. v. Besse (Ky. Ct. of Appeals, 1908), 108 S. W. 848; Allworth v. Muskegon Trac. Co., 142 Mich. 25.

On the question of defendant’s negligence, the witnesses Tremah and Cady give the course of O’Donnell’s team as above stated from a point north of Thirty-fourth street to the point of collision. True-heart, Hendricks and Herron were passengers on the trailer car, and their attention was first attracted by the ringing of the gong and the application of the brakes in stopping the car. At that time the team Was in the center of the street coming directly south with the left wheels in the middle of the north-bound track or on the west rail of that track, and about seventy-five or one hundred feet from the car. These witnesses and Tremah say that the car came to a stop before the collision and that the horses came straight on without attempting to turn out until they were close to the grip car and then they swerved to the west enough to miss the car. Mulcahy, the conductor, corroborates these witnesses as to the sounding of the gong and the stopping of the car before the crash of the collision.

Some contradictions and inconsistencies appear in the testimony of these witnesses as to distances given, and intervals of time, and also some differences between their testimonies given before the coroner upon the inquest and on the trial of the case, but the substance of their testimony is uncontradicted except by the testimony of Mrs. Sack as to the rate of speed the car was running at the time of the collision. Mrs. Sack viewed the collision from a window at No. 3406 State street. She says that the car had not stopped at the time of the collision, and that it was running at the ordinary rate of speed. She is the only witness on behalf of the plaintiff who saw the collision. In view of the circumstances and the undisputed fact that the car did not cover any space after the collision, we think she is mistaken as to the speed of the car and that it was moving at that time. If it had been running at the ordinary speed at that time the relative positions of the train and carriage could not have been as they were shown by the evidence when both carriage and train stopped, and the carriage would have been hurled to one side and probably overturned.

The whole testimony considered, we are of the opinion that the defendant was not guilty of negligence and the plaintiff is not entitled to recover in this action.

In view of this conclusion on the liability question, it is unnecessary for us to consider the other errors assigned and argued.

The judgment of the Circuit Court is reversed with a finding of fact.

jReversed with finding of fact.


author: Mr. Presiding Justice Holdom

text:
    Ida M. Autenrith, Appellee, v. A. B. Wilder, et al. Frank C. Bloom, Appellant.
    Gen. No. 15,092.
    1. Chancery—when jurisdiction cannot he questioned. If a party voluntarily submits all of his rights in the subject-matter of litigation to a court of chancery by the filing of an intervening petition in a pending cause, he will not be heard to question the jurisdiction of the court to adjudicate fully and completely with respect to the subject-matter of such controversy so far as he is concerned therein.
    2. Decrees—When refusal to reopen proper. A refusal by the court to open up a decree to receive new evidence is proper where the motion to reopen is predicated upon an affidavit disclosing no facts not previously known or accessible to the moving party by reasonable diligence.
    3. Contempt—when chancery has jurisdiction to commit for. If a party voluntarily submits both himself and the subject-matter involved to the jurisdiction of the court, such court has power to commit him for failure to obey an order made with respect to such subject-matter.
    Bill to dissolve partnership, etc. Appeal from the Superior Court of Cook county; the Hon. Faklin Q. Ball, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 19, 1910.
    Josiah Burwham, for appellant.
    Ela, Grover, March & Eckert, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Ida M. Autenrith and A. B. Wilder were partners at Chicago in the millinery business, this bill being filed by Ida M. Autenrith against her partner, A. B. Wilder, to dissolve the partnership and for the appointment of a receiver of its assets. The disputes between the partners are not involved in this appeal. It is Frank C. Bloom, who submitted his rights in the premises as an intervening petitioner, who prosecutes this appeal and brings before us for review the propriety of the orders affecting his interests entered March 19, 1908, holding his answer to a rule to show cause why he should not be dealt with as for a contempt of court insufficient to exculpate him from the contempt charged, refusing to open the final decree for further evidence, overruling appellant’s exceptions to the master’s special report and confirming the report, and ordering him to pay certain costs, and on March 26, 1908, declaring him in contempt of court and committing him to the county jail in default of paying $699.55, the value of the goods involved in the order to show cause.

We gather from the evidence that Wilder became dissatisfied with his business relationship with appellee and sought to hit on some plan to terminate it. He seems to have consulted with appellant and the action subsequently taken was largely at appellant’s suggestion. Wilder by subterfuge induced appellee to go on a “shopping” expedition with his wife, and in her absence and without her consent or knowledge caused all the partnership property to be removed from the store where the business of the firm was transacted. The property, or the major part of it, was ultimately traced to the possession of Bloom, who set up a claim to title in virtue of a bill of sale from Wilder. A receiver of the partnership property was appointed. Some of the property was located at a store rented by Bloom, which the receiver took possession of. An order was entered on Bloom to deliver certain property of the partnership to the receiver June 5, 1907. On June 11, 1907, Bloom asked and obtained leave of the court to file an intervening petition instanter, and did so. In that intervening petition, after reciting the several pleadings and orders entered in the cause, including the order of June 5, 1907, that he turn certain property over to the receiver, he averred that he obeyed the order by delivering certain articles to the receiver, but claimed that all of such property belonged to him. The manner of acquiring title he asserts was by loaning the firm $550 February 27, 1907, for which amount he took the firm note payable in sixty days; that on the maturity of the note the firm turned over to him the partnership goods and property in dispute in payment and he accepted the same in satisfaction of that indebtedness; that he thereby became the owner of the goods and property, taking possession thereof and placing it in his store at 579 North Clark street, Chicago, and that the whole thereof did not exceed in value $500. Bloom made appellee a party to his intervening petition and prayed for a rule on her to answer and that he be decreed to be the owner of the property and entitled to its possession, and that the receiver be directed to deliver such property to him, etc. Appellee answered Bloom’s intervening petition by denying the material averments under which he sought to maintain title to the partnership assets and more particularly denying the loan of $550 to the partnership firm or the delivery of its assets and property to Bloom in satisfaction. On June 8, 1907, on motion of solicitor for appellee and Bloom, the appellant, certain matters were referred to a master of the court, which included issues to be joined on the intervening petition of Bloom to be filed later and which was filed three days thereafter.

The master found and the chancellor decreed that Wilder and Bloom entered into a conspiracy to fraudulently divest appellee of her interest in the partnership assets, and that in pursuance thereof Bloom unlawfully obtained possession of such assets. We think it clear that the conspiracy was established, also that the firm did not obtain any loan from Bloom at any time, that Bloom’s contention in this regard is mere pretense and unfounded, and that his own testimony sufficiently so demonstrates.

We do not feel called upon, in the state of the record, to pass upon the regularity of the proceeding against appellant or whether the receiver should not have been directed to proceed against Bloom in an action at law, either to recover the specific property of the partnership which he unlawfully acquired and held, or for a judgment for the value thereof. Bloom in our judgment waived all such questions by voluntarily submitting all of his rights in the premises to the court when he filed his intervening petition. He cannot now question the right of the court to adjudicate upon the controversy which he importuned the court- to settle. After the entry of the rule on him to deliver the partnership property to the receiver, he might have contested the power of the court to deal with him at all in relation to it and have challenged its authority in this regard, but he elected to submit the disputes to the court in that proceeding and he cannot now escape its adjudication by challenging its power. Whatever authority the court may have lacked in the first instance was conferred by voluntarily filing the intervening petition, in which the judgment of the court was asked in the controversy which it adjudicated against appellant’s interest and contrary to ¿is contention.

We see no impropriety in the order of March 19, 1908, or that it does any injustice to appellant. Bloom was guilty of conspiring with Wilder to defraud appellee of her interest in the partnership property owned jointly by her and Wilder as partners, and he certainly had no right or title to such property as against the receiver of the firm assets. True it is that proof of the value of the articles involved is not as satisfactory as might be wished. The difficulties, however, in making more satisfactory proof were of Bloom’s creation. He removed the property during appellee’s absence from the' store, depriving her of any opportunity to make an inventory; he then secreted it, and his co-conspirator, appellee’s partner, departed to the adjoining State of Michigan. All the circumstances considered, the value of the withheld goods was sufficiently proven to make a prima facie case putting Bloom in a position where it became incumbent upon him to rebut or overcome such proof if he could. This worked no hardship on him. He took the property into his possession, and if he desired to protect himself he should have preserved and proffered evidence of the property actually taken and of its value.

We think the stenographer’s fees for taking and transcribing testimony given before the master may fairly be said to be covered by the stipulation concerning them found in the record.

The motion of appellant to open the decree and for leave to take further proofs came too late and was properly overruled. The affidavit of Mildred Chalmers did not disclose any facts which were not known or accessible to Bloom by proper diligence at the time he offered his proofs before the master, and no reasonable excuse was given why Mildred Chalmers was not offered as a witness at some of the several hearings before the master.

We think the court, acting upon the answer of Bloom to the rule requiring him to deliver to the receiver the specific articles of which he had possession, in which .answer Bloom requested that the rule against him be so modified as to require him to pay the value of such articles, did not err. In so doing the court simply heeded such request, and appellant is consequently barred from now complaining of the action taken by the court on his own motion.

The court had jurisdiction to make the order of commital of Bloom for contempt. Bloom had the property ordered delivered in his custody, and for aught that appears to the contrary he had it when the order was •entered. He had the alternative of paying the value of the property if for any reason he did not or could not deliver it. There is no fact, in this record, from which the conclusion may be drawn that Bloom is not abundantly able to pay the amount ordered paid as the value of the property, on failure to deliver it to the receiver in kind. The court had jurisdiction of the subject-matter of the contempt order and of the parties. So far as Bloom is concerned, he voluntarily submitted both himself and the subject-matter involved to the jurisdiction of the court. This was sufficient to invest the court with power to discipline him on failure to obey its orders. Nelson v. London C. & A. Co., 132 Ill. App. 10; Barnes v. Typographical Union No. 16, 232 Ill. ,402.

Finding no reversible error in the record injuriously affecting the rights of appellant, the orders of the Superior Court involved in this appeal are affirmed.

Affirmed.


text:
    Frederick Newstedt, Appellee, v. Herman P. Meyer, Appellant.
    Gen. No. 15,100.
    1. Slander—what proof of words spoken sufficient. In an action for slander the plaintiff “must prove enough of the words to amount, to the substance of the charge;” otherwise expressed, the words alleged to constitute a slander must be substantially proven which does-not necessarily mean that equivalent words will suffice but substantially the very words charged as constituting the slander for which the action is brought to recover damages must be proven.
    2. Instructions—when refusal of correct unll not reverse. If the substance of a correct instruction is embodied in another instruction given, its refusal will not reverse.
    3. Variances—when objection for comes too late. An objection of variance not brought to -the attention of the trial court at any time comes too late.
    Action of slander. Appeal from the Superior Court of Cook county; the Hon. M. W. Thompson, Judge, presiding. Heard in this-court at the October term, 1908.
    Affirmed.
    Opinion filed May 19, 1910.

      McMahon & Cheney, for appellant.
    John C. King and James D. Power, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The declaration is in slander for words spoken by appellant, the master, of and concerning appellee, his servant. The words charged to have been uttered of and concerning appellee in the presence of others are in themselves actionable per se. These are the words: “You have been stealing my lumber.” A trial before the court and jury resulted in a verdict of guilty and an assessment of damages at the sum of $500, upon which verdict judgment was entered after the overruling of motions for a new trial and in arrest of judgment.

Appellant grounds his contention for a reversal on the claim that the court erred in the giving of two instructions requested by appellee, in refusing to give an instruction proffered by appellant, variance between the slanderous words alleged and those proven to have been uttered, and that the verdict is not sustained by the evidence, but is contrary to its manifest weight and that the amount awarded is excessive.

The first objection is directed against the use of the word'“substantially” in the concluding paragraph of the third instruction, which reads: “It is sufficient to prove substantially the words in some one or more of the statements of slanderous words contained in the declaration.” The cases cited by counsel for appellant fail to sustain their • contention. In Albin v. Parks, 2 Ill. App. 576, the court say: “He must prove enough of the words to amount to the substance of the charge.” In Crotty v. Morrissy, 40 Ill. 471, it is saidr “He did not prove the speaking substantially as he had alleged them.” In Ransom v. McCurley, 140 Ill. 626,. the court say: “It is well settled that to authorize a recovery in an action for slander, the words laid in the declaration, or enough of them to charge the particular offense alleged to have been imputed, must be proved substantially as charged.” Many other decisions are to a like effect. The words alleged to constitute the slander must be substantially proven. That does not necessarily mean that equivalent words will suffice, but substantially the very words charged as constituting the slander for which the action is brought to recover damages must be proven. Eeliance is placed upon a decision of this court in the Fourth District—Hill v. Leffler, 133 Ill. App. 266—but as that case is diametrically contrary to Iles v. Swank, 202 Ill. 453, where an instruction in every essential particular similar to the one under discussion is approved, we are not at liberty to follow the Fourth District and ignore the decision of the court of dernier ressort. Neither the privilege nor the power to proceed contrary to the expressed decision of that tribunal is reposed in this court. It alone can change or depart from the law which it has on any occasion solemnly pronounced. Our duty is plain and we have no disposition in this case, even had we the authority, to depart from it. The criticism made of the other “fourth” instruction Is equally without force. All that was material in this Instruction was embodied in the last instruction given at appellant’s instance, in which the jury were told that unless they believed from a preponderance of the evidence that appellant spoke the words, “Ton have been stealing”, their verdict should be not guilty. We are unable to discover by the uttermost refinement of reasoning how the jury could possibly have been misled as to the absolute necessity of appellee proving that the words charged as uttered concerning him were in fact spoken as charged, before appellee was entitled to recover. We perceive no reversible error in any of the court’s rulings on instructions.

There is testimony both of appellee and his witness Larson that the slanderous words charged were uttered on the occasion set forth in the declaration. How■ever, it is a fact that under cross-examination both appellee and his witness Larson, who were both born to an alien tongue, did change the tense of the verb “steal” from “stealing” to “stole”. All the evidence considered, it was for the jury therefrom to say by their verdict whether the words charged were in fact uttered. Certain it is that there is sufficient evidence on that point to support the verdict; consequently we are not authorized to disturb it unless we can say it is contrary to the manifest weight of the evidence. This we are not justified in doing. Moreover, if there was a variance between the averment and the proof, the point is waived because the case was closed in the trial court without objection being made on the ground of variance. Nor was the variance now claimed to exist brought to the attention of the trial court at any time. Ransom v. McCurley, supra. The object of the rule requiring an objection to be made in the trial court is in furtherance of justice, enabling a party having a meritorious cause to prevail by amending the pleading to conform to the proof.

In view of the fact that the utterance of the words charged was sustained by the evidence and constitutes slander per se for which the jury may award exemplary damages, we cannot say the verdict is excessive.

The judgment of the Superior Court is affirmed.

Affirmed.


text:
      C. Turgrinson, Appellee, v. August Meyer, Appellant.
    Gen. No. 15,114.
    1. Set-off—what not proper subject of recoupment. A claim for unliquidated damages which does not arise or grow out of the transaction made the basis of the action is not a proper subject either of set-off or recoupment.
    2. Set-off—what not appropriate before justice. In an action commenced before a justice of the peace, a set-off cannot be interposed If the amount claimed by reason .thereof is in excess of the jurisdiction of the justice.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Ttjthill, Judge,, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed May 19, 1910.
    W. Gr. Anderson, for appellant.
    Clark & Clark, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

There are no pleadings in this case, it having initiated in a court of a Cook county justice of the peace, in which jurisdiction written pleadings are not' required. The ease was twice tried on appeal to the Circuit Court de novo, both trials terminating in verdicts in favor of appellee for $200. The first verdict was met with a motion for a new trial, which was allowed, and on the second trial the court instructed a verdict for appellee, from which this appeal is prosecuted.

The proof shows that appellant was indebted on four promissory notes, two being for $150 each, one for $47.50 and one for $75. The notes were secured by two chattel mortgages, each conveying two carriages. Certain payments were made upon some of the notes, and two carriages were sold under the chattel mortgages. A third carriage had been demolished in a runaway accident and the fourth was taken on an execution by a Cook county constable and sold. The amount realized at the mortgage sale, less the expenses of the sale, was credited upon the notes and the balance remaining due on all four notes exceeding $200, the monetary limit of the jurisdiction of the justice of the peace, the excess was remitted and claim therefor waived by appellee. Unless the defense interposed is available to defeat appellee’s claim, the judgment appealed from must stand.

Appellant contended that the notices of sale, etc., required by sec. 2, chap. 95, R. S., in force July 1,1895, were not given, and that the penalty recoverable under that Act for such failure could be set-off by way of defense to appellee’s claim. Section 2 supra provides that on failure to give the required notices, etc., “the owner of said property may sue for and recover one-third of the value of the property so sold from the mortgagee or. the person making said sale as assignee of said mortgagee.” This injected into the case a claim for unliquidated damages. This was in no way so connected with the claim in suit as to make it a proper subject of a cross-action or set-off, for it is apparent that if such counter claim could be enforced in the pending suit, the jurisdiction of the justice of the peace would be enlarged beyond the amount fixed by the statute. Such result is deducible from the testimony of appellant, in which he placed the value of the two carriages sold at $775. Hartshorn v. Kinsman, 16 Ill. App. 555; Bush v. Kindred, 20 Ill. 93.

The instruction given by the trial judge to the jury, while redundant in form was, in its practical effect and operation, a direction to the jury to find the verdict which it did. The motion of counsel to instruct a verdict in favor of appellee was tantamount to a demurrer to appellant’s evidence, and the action of the court in giving the instruction eliminated from the record all of appellant’s proofs. As the case then stood, no question of fact remained for submission to the jury.

There is no error in the record calling for a reversal of the judgment of the Circuit Court and it is therefore affirmed.

'Affirmed.


text:
    Mrs. James B. Martin, Appellee, v. Jacob Glos et al., On Appeal of Jacob Glos, Appellant.
    Gen. No. 15,120.

      Injunctions—what essential to maintain, restraining issuance of ■tax deed. In a bill to restrain the issuance of a tax deed in which the ownership of the real estate which forms the subject-matter of the suit is alleged and denied, it is essential in order that an' injunction issuing upon such bill be sustained, that the evidence establish such allegation of ownership..
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Eton. Oscab E. Heabd, Judge, presiding. Heard in this 'court :at the March term, 1909.
    Reversed and remanded.
    Opinion filed May 19, 1910.
    John R. O’Connor, for appellant.
    No appearance by appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Appellee instituted a suit, from the final decree in which Jacob Glos prosecutes this appeal. Appellee has failed to appear and defend against this appeal.

The bill filed by appellee seeks to enjoin the County Clerk of Cook county from issuing, and appellant Glos from receiving, a tax deed conveying certain real estate in Cook county theretofore sold for non-payment of certain taxes. A temporary injunction was granted in accord with the prayer of the bill, which upon final hearing was made permanent.

A material averment of the bill is that appellee was the owner of the real estate the subject-matter of the suit; that her husband took the title in his name and afterwards conveyed the property to her. This averment is put in issue by the answer of Glos. It appears that .appellee resided at Sioux City in the State of Iowa, and her deposition in support of her bill was taken at that place. She testified that she bought the property in July, 1896; that title was taken in the name of her husband, James Martin; that in 1902 James Martin conveyed the property to her; that she had the deed in her possession, which deed she attached to her deposition as Exhibit A. An examination of Exhibit A discloses that it is in form a warranty deed from S. Maria Jones and Samuel A. Jones, her husband, to James Martin, conveying the premises described in the bill and final decree.

The difficulty here is of the same character found to be inherent in Bauer v. Glos, 236 Ill. 450. It was there held indispensable to the right to maintain the hill that the complainant prove title in herself, and that without such proof the relief prayed could not be granted. Appellee averred title in herself and proved by deed that the title was vested in her husband, James Martin. While for some purposes husband and wife are treated as a unit, that doctrine cannot he extended to the ownership of real estate in the teeth of averment and proof to the contrary. For failure to sustain the averment of ownership, the hill should have been dismissed. Numerous decisions of our Supreme Court will be found in harmony with the doctrine of the Bauer case supra.

For the error indicated the decree of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Maria Rago, Appellee, v. Katrina Napole Veneziano et al., Appellants.
    Gen. No. 15,125.
    1. Appeals and ebeoes—how joint appeal perfected. An appeal prayed and allowed by several defendants cannot be perfected by one-of them.
    2. Appeals and ebeoes—when irregularities waived. The perfecting of a several appeal w-here the prayer and allowance thereof is joint, is waived by joining in error.

      3. Appeals and errors—what final judgment. If a judgment is •entered determining the merits of a controversy arising at law and a motion subsequently is made to set aside such judgment and overruled and an appeal taken, the final judgment in' the cause is that order which determines the merits of the controversy.
    4. Appeals and errors—when costs of additional abstract not taxed against appellant. The costs of an additional abstract will not be taxed against appellant if the appellee in making up the same has not conformed to the rule of court which provides that the contents thereof shall be confined to the matters omitted by the appellant.
    5. Husband and wipe—when former competent witness for latter. In a suit which pertains to the wife’s separate property the husband is a competent witness for her.
    'Action on the case. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 19, 1910.
    Francis Borrelli, for appellants.
    John C. Trainer, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action on the case for assault and battery, in which plaintiff recovered a judgment against defendants on the verdict of a jury' for $250. Defendants prosecute this appeal.

There are many irregularities in the'prosecuting of this appeal. In the first place, the appeal prayed and allowed was joint, yet it was perfected by only one of the defendants. Although all the defendants assign errors, plaintiff has joined in error without raising the question of the irregularities referred to. By so doing we are of the opinion that such irregularities are waived. We think the reasoning in Pearce v. Swan, 1 Scam. 266, contained in the quotation from Mitchell v. Jacobs, 17 Ill. 234, is appropriate to the condition confronting us in the case at bar. It is as follows: “Taking the appeal, executing the bond and delivering the papers to the Circuit Court, are the means provided bylaw for transferring the cause from the justice and constable to the Circuit Court. These measures are in the nature of process to remove the cause from the inferior to the superior court. When process by which ■a court obtains jurisdiction of a cause is irregular, and no objection is made, the irregularity is waived. The irregularity is not like the case of a defective juris•diction over the subject-matter; for the statute gives .jurisdiction to the justice and constable in the first instance, and to the Circuit Court by appeal”. By -analogy, the principle announced is of equal application to the condition presented by the record in this case. The Circuit Court had jurisdiction of the case and granted the appeal in approved form. This court' has jurisdiction of the subject-matter of the appeal. The infirmity pointed out rests in irregularity of procedure. No objection being made to such irregularity, it is waived. All parties to the cause have voluntarily ■submitted themselves to this court’s jurisdiction, and we will therefore proceed to review the record and ■search therein for such errors as will, in the condition ■of the record, permit of our review. We will treat the case as pending upon a writ of error upon the theory stated in Dearth v. Bute, 71 Ill. App. 487, where the court, answering an objection to irregularities of the nature of those found in this record say: “But appellees have filed briefs. In such case the Court may treat the cause as if pending upon a writ of error sued -out by the party assigning errors and may disregard the irregularity of the attempted appeal. ’ ’ Lancaster v. Waukegan, 132 Ill. 492; Davis v. Lang, 153 ib. 175.

Defendants argue two questions: First, that the admission of the husband of plaintiff as a witness in her behalf was erroneous, and second, that the verdict is not sustained by the proofs. Preliminary to discussing these two points we will note the condition of the record. On April 3, 1908, the verdict of the jury was rendered and defendants moved for a new trial. On April 11, 1908, the motion for new trial was overruled and judgment entered on the verdict. No exception was preserved to the action of the court either in overruling the motion for a new trial or in entering judgment upon the verdict, and no appeal was prayed. April 18, 1908, defendants entered a motipn to vacate-the judgment, which the court denied on April 22,1908. To the action of the court in denying the motion to vacate the judgment defendants excepted and prayed an appeal. The judgment was entered at the March term 1908, and the motion to vacate denied and appeal prayed at the April term of the court. In this state of the record the judgment is the final order in the case. Proceeding on the theory that the cause is here for review as on a writ of error, we are limited in our review to such questions as are raised by objections to the evidence and assigned for error and argued in defendants’’ brief. We may search the record to ascertain if there-is any evidence in it to sustain the verdict, and if we find such evidence we cannot proceed further to test its probative force.

First. The objection that the husband of plaintiff was not a competent witness for his wife, is not well taken. The statutory disability is confined to the wife-being competent to testify for her husband, but does not affect the competency of the husband to testify in the-.wife’s interest. Section 5, chapter 51, Revised Statutes, provides that where the wife would, if unmarried,, be plaintiff or defendant, and where the litigation shall be concerning her personal property, the husband may testify in her behalf. Johnson v. McGregor, 157 Ill. 350. Plaintiff in this case sought to recover damages for an assault and battery made upon her by defendants. Her being covert in no way affected her right to maintain such action. The right was personal to* herself, and her husband was therefore a competent witness in her behalf in force of the statute supra.

Second. Excluding all the testimony to which defendants objected, there still remains sufficient evidence from which the jury might find a verdict in favor of plaintiff and assess her damages at the sum they did.

The denial by the court of the motion made to dismiss as to certain of the defendants was without error. All of the defendants were shown, by the evidence then in the record, to have been involved in the assault upon plaintiff, and it was for the jury to decide whether all the defendants were so involved, or only some of them,, and if not all, then which of them.

Plaintiff moves the court to order the cost of the additional abstract to be taxed against defendants as costs in this cause. This we cannot do. Counsel failed to conform to the rule of court by confining his additional abstract to matters omitted by defendants. While matter omitted from the original abstract appears in the additional abstract, yet much of the latter is mixed in with matters contained in the former. The motion to tax the additional abstract as costs in the cause is therefore denied.

Within the limitations of our review of the record as indicated in this opinion there is no reversible error, and the judgment of the Circuit Court must be and is affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    August Bober, Appellee, v. City of Chicago, Appellant.
    Gen. No. 15,110.
    1. Statute op Limitations—when new cause of action not set up. The striking out of certain words contained in a declaration which does not vary the nature or character of the charge of negligence made, is not the setting up of a new cause of action.
    2. Negligence—what does not relieve city from liability in failing to keep its streets in repair. It is the duty of a city to use reasonable care to keep its streets in a reasonably safe condition and it will not ¡be absolved or excused from the performance of that duty by an ordinance providing that the receiver of a street railway shall keep a portion of such street in repair.

      Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Solon Philbbick, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 19, 1910.
    Statement by the Court. Plaintiff brought in the Circuit Court an action on the case against the City of Chicago and the receivers of a certain street railway company to recover for personal injuries alleged to have been sustained by him through the negligence of the defendants.
    The first count of the declaration alleged that the City of Chicago was possessed and had control of Orleans street, a public street, etc.; that said receivers were in possession of a double track street railway in said street; that the defendants negligently, etc., suffered and permitted a large, deep and dangerous hole to be and remain in said street and in the paving of said street along and adjacent to said railway tracks and on the right of way of said railway at or near the north intersection of said Orleans street and Indiana street; that the defendants knew of the existence of said hole for a sufficient time to enable them to repair the same by the exercise of reasonable care, etc.; that by reason of such negligence while plaintiff was driving a team and wagon on Orleans street at the place, etc., in the exercise of due care, etc., one of the wheels of his wagon dropped into said hole and thereby he was thrown from the wagon to the ground, run over by the wagon and injured, etc.
    The second count repeats in substance the allegations of the first and further avers that said receivers were in possession of said railway under and by virtue of an ordinance of the city of Chicago granting to them a franchise to maintain said tracks in said street and providing that said receivers should maintain paving on said street and “should keep sixteen feet in width where a double track should be laid in good condition and repair,” etc., and averring that the hole was within the said sixteen feet. The defendants pleaded not guilty.
    The defendants offered no evidence. After plaintiff rested he, by leave of the court, filed an amendment to his declaration dismissing the first count as to the sole surviving receiver, and amending said count by striking out the allegation that the hole mentioned in said count was “within and upon the right" of way of said railway.” The common law record states that “thereupon the defendant city of Chicago enters herein its plea of the statute of limitations,” and that plaintiff’s demurrer to said plea was sustained; but there is no such plea in the record. The jury by direction returned a verdict finding the defendant receiver not guilty. The cause was submitted to the jury on the issues joined between plaintiff and the city of Chicago and a verdict returned finding the defendant city guilty and assessing plaintiff’s damages at $8,500. The court denied the motion of the city for a new trial, and from a judgment on the verdict the city prosecutes this appeal.
    Edward J. Brundage and John B. Caverly, for appellant; Edward C. Fitch and D. H. Wamsley, of counsel.
    Quin O’Brien and Lawrence W. Potter, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

It is a sufficient answer to appellant’s contention that the court erred in sustaining the demurrer to the plea of the statute of limitations, that there is no such plea in the record. But if the recitals of the common law record that such a plea was filed and a demurrer to it sustained could be held to bring the question before us for review, it is clear that the amendment to the first count striking out certain words did not introduce a new or different canse of action, and that the plea of the statute of limitations was no answer to the count as amended.

The contention of appellant that there is a variance between the pleading and the proof is without merit.

The court did not err in refusing to give defendant’s instruction 10, on the subject of the care plaintiff was required to exercise for his own safety. The instruction is not free from objection, and the jury was fully and properly instructed on that subject by other instructions given for the defendant.

Appellant also contends that the verdict is against the evidence and that the damages are excessive.

Orleans street, a north and south street, crosses Indiana street, and in each street was a double track railway. Appellant contends that the evidence fails to show that the intersection of Orleans and Indiana streets, north of the railroad tracks in Indiana and east of the tracks in Orleans street, had ever been paved. We think that from the evidence the jury might properly find that said street intersection east of the tracks in Orleans street on both sides of the tracks .in Indiana street had at one time been paved with blocks; that at the time of the accident and for a year or longer before that time there were no blocks east of and adjac'ent to the east rail in Orleans street north of the tracks in Indiana street for a distance of ten or twelve feet, leaving a hole of that length, five or six feet wide and twelve or fourteen inches deep alongside of said rail; that from time to time loads of dirt and cinders were thrown into such hole; that on the day of the accident the filling in said hole was soft and in such condition that the wheel of a wagon would sink down into such filling. On the day of the accident plaintiff was driving a team and wagon loaded with five tons of baled hay north in the east tracks in Orleans street, with his wheels tracking in the grooves of the rails. He sat on a seat attached to the bed of the wagon and his feet were on a foot rest. He had a well broken team and held a tight rein in each hand. When he reached the tracks in Indiana street he stopped to let a team pass in front of him, and when it had passed started forward, crossed the tracks in Indiana street and proceeded north, his wheels tracking in the rails of the east track. When he came abreast of the hole above mentioned a car was coming from the north in the west track ringing its gong. With the wagon in the east tracks there was a clearance of two and a half feet between the car on the west track and the load on the wagon, and plaintiff did not intend to turn out, but in some way, perhaps because the team turned to the ■east to avoid the approaching car, the right fore wheel of the wagon ran off the rail to the east, the wheel sank ■down in the hole above mentioned so far that plaintiff was thereby thrown from his seat to the pole of the wagon. He attempted to catch hold of the harness, but failed and fell to the ground and the hind wheel of the wagon ran over his right arm and leg and inflicted the injuries complained of. Plaintiff had before his injury noticed the hole, and testified that part of the time it was filled up and he could not see any hole, and that on that day he did not see any hole. There is in the record no evidence tending to show that there was any place or way for plaintiff to drive north in Orleans •street better or safer than the tracks in which he was driving when injured.

We think that from the evidence the jury might properly find that the defendant city was guilty of the negligence alleged in the declaration; that plaintiff was not guilty of contributory negligence; that defendant’s negligence was the proximate cause of plaintiff’s injury, and therefore that the verdict cannot be held to be against the evidence. City of Mattoon v. Faller, 217 Ill. 273; City of Chicago v. Kubler, 133 Ill. App. 336, and cases there cited.

Plaintiff sustained a compound fracture of the thigh bone or femur and of the bone of the arm or humerus. He was taken to a hospital the day of the injury, May 20, 1903, and there remained until February 6, 1904. The bones of both the thigh and arm failed to unite at the usual time. To bring about such union both his thigh and arm were operated on several times, an inch of each end of the thigh bone was cut away, and a dovetail flap of the bones of the arm made. There is a shortening of nearly three inches of the thigh bone and two inches of the bone of the arm, and both bones are deformed. Inflammation set in involving both the knee and the elbow, and there is arthritis of the knee and ankylosis of the elbow, and the movement of both knee and elbow is greatly limited.

In view of the nature of plaintiff’s injuries and their consequences, we cannot say that the damages awarded by the jury are excessive.

Plaintiff offered in evidence the ordinance referred to in the second count of the declaration, the court on the objection of the defendant receiver excluded it, and the defendant city excepted. Assuming that the question of the admissibility of the ordinance was saved for review by appellant, we think the ordinance was. properly excluded. It was the duty of the city to use-reasonable care to keep the street in question in a reasonably safe condition, and it could not be released' or excused from the performance of that duty by an ordinance providing that the receiver of a street railway company should keep a portion of such street in repair. City of Chicago v. Kubler, supra.

The record is free from error and the judgment is affirmed.

Affirmed.


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    Anthony Conley, Appellee, v. Wells Brothers Company, Appellant.
    Gen. No. 15,116.

      IrrsTEtrcTiONS—when erroneous in ignoring defense of assumed risk:. If the defense of assumed risk is supported hy evidence in the cause and the declaration does not negative the assumption of risk, an instruction is erroneous which in effect tells the jury that the plaintiff is entitled to recover if the evidence preponderates in favor of the plaintiff upon the allegations of his declaration or any count thereof, and such an instruction is not cured hy other instructions given to the jury upon the question of assumed risk.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwett, Judge, presiding. Heard in this court at the October term, 1908. Reversed and remanded.
    Opinion filed May 19, 1910.
    Rehearing denied May 31, 1910.
    Calhoun, Lyfoed & Sheean, for appellant; Egbert J. Slater, of counsel.
    B. J. Wellman, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries plaintiff had judgment for $3,500, and defendant appealed, The declaration consisted of five counts, as follows:

First count. Alleged that on February 24, 1905, plaintiff was a servant of defendant and as such was 6 working in a certain well or caisson in a certain excavation and in the ordinary course of his employment, by the direction of the defendant, attached the two' halves of a certain ring to a loop or sling of rope to a, certain rope or cable, by means of which the ring was. drawn up in the well, and when he had so attached thu ring to said sling or rope the same was by the defendant drawn up, when, without fault on the part of the plaintiff, and through the negligence of the defendant, said ring gave way and fell and said loop or sling permitted said ring to fall down to and upon and against the plaintiff, whereby, without fault on the part of the plaintiff, he was injured.

Second count. After alleging plaintiff’s employment and presence in the well, charged that the defendant so carelessly and negligently raised and hoisted said pieces of iron that thereby, without fault on the part of the plaintiff, said pieces of iron then and there fell and were detached from and torn loose from said rope or cable and fell down to and upon the plaintiff.

Third count. That the defendant was possessed and had control of a certain cable or rope and of a certain sling or loop of rope attached to the end of said rope or cable, which loop or sling the defendant carelessly and negligently had and permitted to be improper arid insufficient and weak and rotten, and out of repair, and which the defendant carelessly and negligently and in violation of its duty then and there furnished to the plaintiff, as one of its servants, by means whereof a certain ring or the parts of a certain ring or hoop of metal which the plaintiff had attached to said sling or loop, in the course of his employment, fell down to and upon the plaintiff, by reason of the tearing, breaking or giving away of said defective sling or loop, whereby, without fault on the part of the plaintiff, and through the negligence of the defendant, the plaintiff was injured.

Fourth count. After the charge of plaintiff’s employment and presence in the well, alleged that in the ordinary course of his employment plaintiff was attaching two parts of a ring of iron or metal of great weight, to wit, 150 pounds, to the rope or cable, by means of a sling or loop of rope, and that the defendant then and there hauled or pulled said parts of the ring so attached to said sling or loop of rope in so careless, negligent and improper manner that thereby some part thereof gave way, whereby, without fault on the part of plaintiff, and through the negligence of defendant, said parts of said ring fell down to and upon and against Mm.

Fifth count. Substantially the same as the fourth, except that the charge of negligence against defendant is that it carelessly, negligently and in violation of its duty to the plaintiff, furnished Mm with a ’defective, improper and insufficient sling or loop of rope so that thereby, without fault on his part, and through the negligence of the defendant in the regards aforesaid, said sling or loop of rope gave way or broke and tore, whereby said ring fell down to and upon the plaintiff.

The plea was not guilty.

Defendant was engaged in putting in the foundation of a building, and for that purpose dug down to the rock a number of shafts about seven feet in diameter, wMch were intended to be filled with concrete. Such shafts were cased with lags or staves about six feet long, which were held in place by rings placed inside of the casing. As the shafts were filled with concrete the lags or staves and the rings were taken out and raised to the top of the shaft by means of a steam hoisting engine with its appliances. One of such appliances was a spool or drum called a “niggerhead”, which revolved continuously. A rope or cable, at the lower end of which was a hook, extended from the shaft, passed over a pulley suspended above the shaft, and thence to the niggerhead, around which two turns were taken and the end left loose. The operation of this rope was controlled by an employe of defendant called the niggerhead man, by pulling taut or slackening the loose end of the rope beyond the niggerhead.

Plaintiff was in the service of the defendant, and it was a part of Ms duties to go down into the shafts, loosen the rings and fasten the same to the hook at the lower end of the cable. "When tMs was done he gave a signal to hoist to another employe stationed at the top of the shaft, who passed the signal to the nigger-head man, who pulled the rope tight on the niggerhead and thereby the load was hoisted. To fasten the ring to the hook defendant furnished to plaintiff a sling. This sling was originally one of three strands of Manilla rope; and ends of the strand were tied together and the loop or sling so made was about eighteen inches long.

Just before the accident plaintiff took out a ring, passed the sling around it and hooked the sling into the hook at the end of the rope. He then gave the signal to hoist and the ring was hoisted to the top of the shaft. The ring struck against a platform which covered about one-half of the top of the shaft, .the sling broke and the ring fell down the shaft and struck the plaintiff, inflicting on him the injuries complained of. Plaintiff had used the sling which broke about three hours before the accident occurred, and during that time several other rings had been raised.

The facts above set forth are not to be understood as a complete statement of the facts of the case. It has been our purpose to set forth only enough of the facts, as to which there is no dispute, as are sufficient to show that the ease involved and presented the question of assumption of risk by the plaintiff. That question was clearly presented, and it was essential to a proper trial of that issue that the jury be correctly instructed as to the principles of law which should govern them in reaching a conclusion on that issue.

The court gave for the plaintiff the following instruction; “The court instructs the jury as a matter of law, that the burden of proof is upon the plaintiff, and it is for him to prove his case by a preponderance of the evidence; still, if the jury believe that the evidence bearing upon the plaintiff’s case preponderates in his favor, although but slightly, it would be sufficient for you to find the issues in his favor”. The words “his case” and “plaintiff’s case” in.the instruction mean plaintiff’s case as alleged in the declaration or some count thereof, and the words “evidence bearing on plaintiff’s case” mean and include all the evidence in the case. In effect the instruction states that if the jury believe that the evidence preponderates in favor of the plaintiff’s case as alleged or laid in his declaration, or some count thereof, although but slightly, that would be sufficient for the jury to find the issues in his favor. The effect of said instruction was to eliminate the question of assumed risk, as it is not averred, in any count of the declaration, either expressly or by implication, that the plaintiff did not assume the risk of being injured by the breaking of the sling, or that he did not know or have reason to know of its defective condition at the time it broke; nor is there any fact averred in any count of the declaration which negatives the assumption of risk by the plaintiff. The distinction between cases in which such an instruction is erroneous and those in which it is not erroneous, is clearly stated in Kirk & Co. v. Jajko, 224 Ill. 338. It is erroneous in an action by a servant against his master for injuries alleged to have been sustained by the servant through the negligence of the master where on the facts the question of assumption of risk is involved, unless the averments of the declaration negative the assumption of risk by the plaintiff, and it is not erroneous when the question of assumption of risk is. not involved or where such assumption is negatived by the averments of the declaration. The giving of substantially the same instruction was held reversible error in Montgomery Coal Co. v. Barringer, 218 Ill. 327; Terra Cotta L. Co. v. Hanley, 214 id. 243; I. C. R. R. Co. v. Smith, 208 id. 608; L. E. & W. R. R. Co. v. Wilson, 189 id. 89; Swift v. Rutkowski, 167 id. 156; Herdman-Harrison Co. v. Spehr, 145 id. 329, in all of which the question of assumed risk was involved.

The instruction in question was held proper in Hanchett v. Haas, 219 Ill. 546; C. C. Ry. v. Bundy, 210 id. 39, and Taylor v. Felsing, 164 id. 331. Neither Hanchett v. Haas nor C. C. Ry. Co. v. Bundy was an action of a servant against a master. Taylor v. Felsing was such an action, hnt the declaration alleged a promise to repair, and therefore negatived the assumption of risk.

The effect of the instruction was to direct a verdict if the jury found the defendant guilty of the negligence alleged in any count of the declaration, and that the plaintiff was injured thereby and was in the exercise of due care for his own safety, although the language was, “would be sufficient for you to find a verdict in his favor.” In Terra Cotta Co. v. Hanley, supra, the words of the instruction were: “if you believe, etc., then you can find a verdict for the plaintiff;” in I. C. R. R. Co. v. Smith supra the words were: “if you believe, etc., then the plaintiff will be entitled to recover;” and in both cases the instruction was held to direct a verdict if the facts stated in the instruction were found by the jury to be true.

The error in the instruction given in this case was not cured by the instructions upon the question of assumed risk given for the defendant. Montgomery Coal Co. v. Barringer, supra; Terra Cotta Lumber Co. v. Hanley, supra; I. C. R. R. Co. v. Smith, supra; Pardridge v. Cutler, 168 Ill. 504.

The giving of said instruction for the plaintiff was, in our opinion, reversible error, and for that error the judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Julia Agat, Appellee, v. Herbert M. Apflebaum, Appellant.
    Gen. No. 15,122.

      Evidence—what inadmissible to show that money was not borrowed. Where no issue of fraud is in the case, the fact that the defendant who was sued for borrowed money had at the time a much greater sum on deposit in a certain bank, is not competent as tending to support the defense that such money was not borrowed.

      Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. John A. Ghat, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed May 19, 1910.
    Moses, Rosenthal & Kennedy, for appellant.
    . Frank F. Aring, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

On the trial in the Circuit Court of an action for money lost, the jury found the issues for the plaintiff, assessed her damages at $185, and from a judgment on the verdict the defendant prosecutes this appeal. Plaintiff testified that in February, 1903, she lent the defendant $185, and her brother testified that he, on the occasion testified to by plaintiff, was present and saw plaintiff hand defendant some money, the amount of which he did not knew. Defendant testified that he did not at any time borrow or receive from the plaintiff any money.

Appellant contends that if from the evidence the jury might properly find that a loan of money was made to the defendant, such loan was made by plaintiff’s husband and not by plaintiff. We think that from the evidence the jury might properly find that plaintiff lent to defendant the sum of money sued for.

We find nothing erroneous in the remarks of the trial judge in the presence of the jury.

The defendant offered his own testimony, together with the testimony of an employe of John V. Farwell & Company, and a cashier of the First National Bank, to show that at the time of the alleged loan he had $2,200 to his credit in the First National Bank, and his firm had in excess of $4,000 on deposit with John V. Farwell & Company. This testimony was excluded.

If any of the evidence excluded was admissible it was the evidence that defendant, at the time when plaintiff testified that she lent him $185, had $2,200 to his credit in a certain bank. If the fact that the defendant had $2,200 in bank at that time affords ground for a reasonable inference that he did not borrow money of the plaintiff as she alleged, then the evidence was admissible.

In Thorp v. Goewey, Admr., 85 Ill. 611, it was held that on the question of the genuineness of a promissory note presented on a claim against an estate many years after maturity, evidence that the alleged maker of the note, from the time of its date down to his death, was a man of large property, was admissible on the part of his administrator.

In Stevenson v. Stewart, Admx., 11 Pa. St. 307, it was held that in an action on a single bill of the administrator of the payee, where the defense was forgery, evidence was admissible on the part of the plaintiff to show that before and after the date of the bill the maker was trying to borrow money. In both cases the defense of forgery involved the charge of fraud and direct evidence of the fact was wanting.

In this case the defense that plaintiff’s claim was unfounded did not present any issue of fraud and there was direct evidence as to the facts in issue.

Atwood v. Scott, 99 Mass. 177, was an action for money lent. The defendant testified that she had repaid the money, and was allowed to introduce evidence that about the time of such re-payment she had considerable sums of money in her possession. It was held that such evidence was erroneously admitted for the purpose of corroborating the testimony of defendant that she repaid plaintiff. In the opinion it was said that “Experience is not sufficiently uniform to raise a presumption that one who has the means of paying a debt will actually pay it.”

The question presented is not free from difficulty, but we think that evidence that plaintiff had $2,200 in bank at the time he is alleged to have borrowed the money sued for would not warrant or support a reasonable inference that he did not borrow the money in ■question, and that therefore the evidence was properly excluded.

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

Affirmed.


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    J. B. Inderrieden Company, Appellant, v. (Owen V. Allen et al.) Walter A. Frost et al., Appellees.
    Gen. No. 15,128.

      Garnishment—when garnishee should 6e required to answer. If •an attachment suit is instituted and an affidavit in attachment filed pursuant to section 7 of the Attachment Act, in which it is alleged that certain individuals as co-partners are indebted to the plaintiff and in which there is set up a statutory ground of attachment against one of such individuals, a garnishee served under a writ issued in ■such case against such individual, should be required to answer.
    Attachment. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed May 19, 1910.
    Peckham, Packard, ApMadoc & Walsh, for appellant.
    J. D. Woley, for appellees; Fergusoh & Goodkow, -of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

Sections 7 and 21 of the Attachment Act are as follows :

“Sec. 7. In all cases where two or more persons are jointly indebted, either as partners or otherwise, •and an affidavit shall be filed as provided in the first section of this act, so as to bring one or more of such joint debtors within its provisions, and amenable to the process of attachment, then the writ of attachment :slmll issue against the property and effects of such as are so brought within the provisions of this act; and the officer shall be also directed in said writ to summon all joint debtors named in the affidavit filed in the case, whether the attachment is against them or not, to answer to the said action, as in other cases of joint defendants.”
“See. 21. When the sheriff or other officer is unable to find property of any defendant, sufficient to satisfy any attachment issued under the provisions of this act, he shall summon the persons mentioned in such writ as garnishees, and all other persons within his county whom the creditor shall designate as having any property, effects, ehoses in action or credits, in their possession or power, belonging to the defendant, or who-are in any wise indebted to such defendant, the same as if their names had been inserted in such writ; the persons so summoned shall be considered as garnishees, and the sheriff shall state, in his return, the names of all persons so summoned, and the date of such service on each.”

Pursuant to the provisions of said section 7 plaintiff filed an affidavit in attachment, alleging that Owen V. Allen, Henry P. Allen, Oscar H. Allen and William Gr. Allen, co-partners, were indebted to the plaintiff in the sum of $3,000 for, etc., and alleging a statutory ground of attachment against William Gr. Allen alone. Plaintiff gave a bond to William Gr. Allen and a writ was-issued in .accordance with the provisions of said section. Pursuant to the commands of the writ the sheriff summoned the appellees here, Walter A. Frost and' the First National Bank of Chicago, as garnishees, but the writ was not served on any one of the defendants.. Plaintiff filed a declaration against all of the defendants and gave notice as required by the statute by publication to William G-. Allen, impleaded, etc., and after-wards took judgment for $3,000 against William Gr. Allen alone. Prior to taking judgment plaintiff filed interrogatories to said garnishees, inquiring of them concerning the funds and estate of William Gr. Allen alone. The garnishees each moved to strike said interrogatories from the files, substantially on the ground that they sought a discovery of the funds and estate of William Gr. Allen alone in their hands, and not of the funds and estate of the four defendants named in the writ and declaration as defendants. The court sustained the motion, struck said interrogatories from the files and ruled the plaintiff to file amended interrogatories in five days. Afterwards, the plaintiff failing to file further interrogatories, the garnishees were discharged and a judgment entered that they go without day, etc., and from that judgment the plaintiff prosecutes this appeal.

The question here presented is not whether by virtue of an attachment against one of four copartners, issued in an action brought against all, a debt due from a garnishee to the copartnership can be reached; but is whether a debt, from a garnisheé to the defendant against whom the writ of attachment issued, can be reached. The garnishees were interrogated as to debts, dues, etc., to William Gr. Allen alone. On the attachment writ the separate property of William Gr. Allen might have been taken, and it is, we think, immaterial whether his separate property was in the form of property which might be taken on the writ, or in the form of property or credits that could only be reached by garnishment. It is enough, we think, that a garnishee was, when served with process, indebted to the defendant in the attachment or had property or effects in his possession belonging to such defendant. Drake on Attachment, sec. 378.

We see no reason why the garnishees should not have been compelled to answer the interrogatories, and the order quashing the interrogatories and the judgment in favor of the garnishees will be reversed and the cause remanded.

Reversed and remanded.