text:
    Milton C. Schenck, Appellant, v. Chicago Railways Company, Appellee.
    Gen. No. 23,779.
    1. Negligence, § 205

       — when issue of wantonness is not submitted to jury. Where, in an action to recover for personal injuries one count of which sets up wantonness, the only reference made in the instructions to wantonness is in one of defendant’s instructions, the issue of wantonness was not submitted to the jury, and the fact that such issue was ignored in defendant’s instructions cannot be urged as a ground for reversal.
    2. Roads and bridges, § 231* — when driver of vehicle required to signal intention of crossing street car track after turning. A municipal ordinance providing that no vehicles standing at or drawn alongside the curb shall start to turn therefrom until the driver shall have given a signal which can be seen from the rear of the vehicle from the side towards which he is about to turn, which sign shall indicate his intention to start to turn from the curb in the direction in which the turn is to be made, held to require one driving a vehicle anywhere between the car track and the curb to signal his intention to cross the track.
    3. Street railroads, § 141* — when instruction on duty not to unduly obstruct street car traffic by wagons is not erroneous. In an action to recover for personal injuries from a collision between a street car and a wagon, alleged by plaintiff to have been caused by the car striking his wagon as he was driving from the track after signaling his intention to the motorman, and alleged by defendant to have been caused by plaintiff’s driving on the track immediately before the car, it is proper to tell the jury that in determining whether the motorman was operating the car at and before the accident with ordinary care, they should take into consideration the law which prohibits wagons from unduly obstructing street car traffic, even though they are not told that this law is to be considered in connection with plaintiff’s conduct as well.
    4. Street railroads, § 86* — when recovery may be had for injuries due to collision of street car with wagon. In an action for personal injuries received in a collision between plaintiff’s wagon and defendant’s street car, to recover, plaintiff must have been in ¡the exercise of ordinary care for his own safety, and, to excuse defendant from liability, it would also have to have exercised ordinary care, but ordinary care on the latter’s part would require more precautions than would be required of plaintiff.'
    5. Street railroads, § 141

       — when instruction on respective duties of driver of wagon and motorman to avoid collision is misleading. In an action to recover for personal injuries received in a collision between plaintiff’s wagon and defendant’s street car,' it is reversible error to instruct the jury that plaintiff “was just as much in duty bound to exercise ordinary care to look out for the approaching car and to avoid a collision between said car and the wagon which plaintiff was driving, at the time and place in question, as the motorman in charge of said car was to look out for and to avoid colliding with said wagon. One was not held in law to any higher degree of care than the other,” as tending to mislead the jury as to the character of the precautions which plaintiff was required to exercise and as being susceptible of the construction that the plaintiff, to be in the exercise of ordinary care for his own safety, was required, under the law, to take the same precautions as defendant was required to take in order to be in the exercise of ordinary care.
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed June 19, 1918.
    Quin O’Brien and William B. O’Brien, for appellant.
    Frank L. Kriete and William H. Symmes, for appellee ; J. R. Guilliams and Robert J. Slater, of counsel.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Milton C. Schenck brought suit against the Chicago Bailways Company to recover damages for personal injuries. The case was tried before the court and jury ; there was a verdict and judgment in favor of the defendant, to reverse which plaintiff prosecutes this appeal.

The record discloses that on October 14, 1914, at about 4:30 o’clock, p. m., plaintiff was driving a one-horse wagon east in Harrison street, when an eastbound car of the defendant struck the rear end of the wagon and threw plaintiff to the brick pavement, severely injuring him. The declaration consists of three counts. The first two charge the defendant with negligence in the operation of its car. The third count alleged that after the danger of the collision was apparent the motorman recklessly and wantonly, and without regard for plaintiff’s safety, ran the car against the wagon.

Plaintiff was driving a covered, inclosed wagon drawn by one horse and turned east into Harrison street, an east and west street, at Albany avenue. Defendant operated a double street car track in Harrison street. Plaintiff’s evidence tended to show that as he turned into Harrison street he looked for but saw no street car; that he proceeded east in Harrison street driving on the south or eastbound track; that the wheels of the wagon were tracking in the rails; that after he had driven a distance of about 300 feet he heard a loud explosion and leaned out of the side of the wagon and looked back and saw the car about 50 or 60 feet back of the wagon; that he immediately held out his hand in signal and turned his horse out of the track to the north; that when the front wheels were off the track to the north the car struck the wagon on the rear left-hand corner; that the impact broke the glass windshield in front of plaintiff’s face; that his face and hands were cut by the shower of glass; that he was thrown on the brick pavement and severely injured; that the horse and wagon, by reason of the collision, were turned around facing west; that the rear end of the car when it stopped was 50 or 60 feet past the wagon. The evidence further tended to show that the brick pavement in Harrison street was dug out in places and broken into ruts. Plaintiff at the time was proceeding to deliver some goods which he was selling to a family that lived on the north side of Harrison street almost opposite the place where the accident occurred.

The defendant’s theory was that the wagon was being driven in Harrison street, not in the eastbound track, but in the roadway between that track and the curb; that there was sufficient room for a car to pass the wagon, but when the car was about 35 feet from the wagon plaintiff suddenly and without warning pulled his horse north across the track in front of the car.

The undisputed evidence was that there was no other traffic in the immediate vicinity and nothing to obstruct the view. The evidence also tended to show that the car was running about 18 miles per hour, and that the motorman did all in his power to stop the car when it was about 35 feet from the wagon. The evidence also tended to show that the motorman had been sounding his gong as he approached the scene of the accident, although the plaintiff testified he did not hear it.

Plaintiff contends that the verdict is so contrary to the weight of the evidence that it clearly indicates that the jury were animated by passion and prejudice. Since the case must be reversed and remanded we express no opinion on the weight of the evidence.

Plaintiff also argues that there is reversible error in the record for the reason that the instructions given on behalf of the defendant ignored the third count of the declaration, which alleged wantonness; that the instructions were on the theory that if plaintiff was guilty of contributory negligence he could not recover; that this is no defense to the charge made in the third count. It is further argued that there is evidence to support this count, and that this was the view of the trial court as shown by the court’s refusal of defendant’s motion to instruct the jury to find the defendant not guilty under this count. It is true that instructions were given on behalf of defendant that told the jury that plaintiff could not recover if he was guilty of contributory negligence. But the difficulty with plaintiff’s position is that in the instructions given on his behalf the third count is entirely ignored, all of his instructions being based on the first and second counts, in each of which it was averred that plaintiff was in the exercise of ordinary care. In fact the question of wantonness seems to have been abandoned. The only instruction in which it was referred to was one given on behalf of the defendant, but in no place was the jury told what would constitute wantonness. We think this question of wantonness was not submitted to the jury and therefore cannot be urged here.

Complaint is also made to the giving of instructions 25, 32, 33 and 27 offered on behalf of the defendant.

It is said that instruction 25 is erroneous for the reason that the ordinance on which it was based could not apply to vehicles, unless they were on the ‘ ‘ extreme side of the street turning from alongside of the curb, and especially to those standing at the curb and turning as they start to move therefrom.” The ordinance provided, in substance, that no vehicles standing at or drawn alongside of the curb of any street shall be permitted to start to turn from such curb until the driver shall have given a signal which can be seen from the rear of the vehicle from the side towards which he is about to turn, which sign shall indicate the driver’s intention to start to turn from the curb in the direction in which the turn is to be made. We think this ordinance requires a person driving a vehicle anywhere between the street car track and the curb, who is about to cross the track, to signal his intention.

It is urged that instruction 32 is erroneous, because the first part of it is too broadly stated; that it implies that the public has no right to freely use that part of the street occupied by the tracks without becoming in a sense a trespasser. The instruction told the jury that in determining whether the motorman at and before the time of the accident was operating his car with ordinary care, they should take into consideration the fact that a street car company, because of the inability of its cars to turn out, and because of its convenience to the public as a carrier of passengers, is entitled to a right of way superior to other vehicles over that portion of the street occupied by the tracks, except at street intersections, and that this rule of law together with all the other facts and circumstances should be taken into consideration in determining whether the motorman was in the exercise of ordinary care. We have given this instruction most careful consideration, and have come to the conclusion that in a great many cases it is inapplicable and may be misleading, but we are of the opinion that in the instant case it was proper to tell the jury that in determining whether the motorman was operating his car at and before the accident with ordinary care, they should take into consideration the law which says wagons and other vehicles are not to unduly obstruct street car traffic. This knowledge of the law in the mind of the motorman might be an important element in determining the manner in which he operated the car. It is also said that' the instruction is wrong in telling the jury they should consider this rule of law in determining the conduct of the motorman, while it should also be considered in connection with the conduct of plaintiff as well. This instruction did not direct a verdict and did not purport to completely set forth the law on this point. We think the omission, if any, in no way injuriously affected the plaintiff.

It is contended that instruction 27 is erroneous. It told the jury “that the plaintiff was just as much in duty bound to exercise ordinary care to look out for the approaching car and to avoid a collision between said car and the wagon which plaintiff was driving, at the time and place in question, as the motorman in charge of said ear was to look out for and to avoid colliding with said wagon. One was not held in law to any higher degree of care than the other.” It is said that the undisputed evidence shows that plaintiff was riding in a covered and inclosed wagon; that it was a rear end collision; that the wagon was in plain view of the motorman, but the street car was not in plain view of the plaintiff; that under these circumstances the instruction was highly misleading; that there was a conflict in the evidence as to whether plaintiff stuck his head out of the side door of the wagon, looked back and signaled that he was about to turn; that by this instruction the jury might well believe that plaintiff was required “to look out”; that this was too narrow a view to take, as the jury might reasonably understand that plaintiff was required to beware of the approaching car and must physically look out of the side door. It is further contended that this instruction is misleading and vicious because it, in substance, told the jury that the motorman in driving a powerful electric car towards the inclosed wagon was not held to any higher degree of care than the driver of the wagon, and that this instruction was condemned by this court in West Chicago St. R. Co. v. Callow, 102 Ill. App. 325, where it was held not error to refuse it, and it was there pointed out that one driving a heavy electric street car was required to take more precaution so as to be in the exercise of ordinary care than one who was walking across the street.

.We think the jury might understand that plaintiff was required to physically stick his head out of the side of the wagon and look out in a literal sense. As to the other objection we think the instruction is also erroneous, for it might be understood to mean that plaintiff was required under the law to take the same precautions, in order to be in the exercise of ordinary care for his own safety, as defendant was required to take in order to be in the exercise of ordinary care. Manifestly this is incorrect. Of course plaintiff to recover would have to be in the exercise of ordinary care for his own safety, and, in order to excuse the defendant from liability, it would also have to be in the exercise of ordinary care — not guilty of negligence. But to be in such degree of care, the defendant, under the circumstances, would be required to take more precautions than the plaintiff. The cases of Weske v. Chicago Union Traction Co., 117 Ill. App. 298; Chicago City Ry. Co. v. Strong, 127 Ill. App. 472, and Olsen v. Chicago City Ry. Co., 153 Ill. App. 75, cited by the defendant, are not in point. In the first two of these cases the vehicle in which the plaintiff was riding and the street car that collided with it were driving at right angles, and in the Olsen case, supra, the vehicle and car were approaching each other, while in the instant case the car was coming from behind the vehicle. The evidence on the vital point was highly conflicting, and the jury should have been accurately instructed.

Complaint is also made of other instructions given on behalf of the defendant on the ground that they limited the time in which the defendant was required to be in the exercise of ordinary care to the time of the collision. These omissions or errors, if any, together with others complained of, can be obviated on a retrial of the case.

For the giving of instruction 27, the judgment of the Superior Court of Cook county is reversed and the cause remanded.

Beversed and remanded.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Helen May Culver and Chicago Title & Trust Company, Coadministrators, Appellants, v. Charles S. Harris, Appellee.
    Gen. No. 23,789.
    1. Evidence, § 232

       — when exclusion of coroner’s verdict in action for death of driver of vehicle in collision with automobile is. proper. In an action to recover for the death of one killed by the collision of a vehicle, which he was driving, with defendant’s automobile, it is proper to exclude from evidence the verdict of the coroner’s jury which found that the automobile was run at an exceedingly high and dangerous rate of speed and that defendant was guilty of gross and criminal carelessness amounting to manslaughter and recommended that he be held to the grand jury on a charge of manslaughter, as such verdict exceeded the jury’s authority by finding upon evidentiary facts.
    2. Depositions, § 23* — what is proper practice as to use of taken at coroner’s inquest. In an action to recover for wrongful death, depositions of witnesses taken before the coroner at the inquest are inadmissible as original testimony, hut the proper practice is to use the depositions in the cross-examination of the witness and then, if it appears that his testimony is different from his depositions, the latter may be read.
    3. Automobiles and garages, § 3* — when instructions on effect of violation by driver of vehicle of speed and light ordinances are erroneous. In an action to recover for the death of one killed by a collision between his vehicle and defendant’s automobile, instructions as to the effect of the violation by plaintiff’s intestate of ordinances regulating the speed of horse-drawn vehicles and the lights to he used on such vehicles, held erroneous and misleading where there was no evidence of a violation of the speed ordinance and the evidence showed that the presence or absence of lights on the vehicle could not have affected the accident.
    4. Automobiles and garages, § 3* — when instruction on contributory negligence in violating ordinance as to turning corners to left is erroneous. In an action to recover for a death resulting from a collision between a vehicle driven by deceased and defendant’s automobile, it is error to give an instruction that if the jury believed from the evidence that at the' time of the accident the deceased was violating an ordinance regulating the manner in which vehicles shall proceed in turning corners to the left and that such violation was negligence which proximately contributed to the accident, then they should find for the defendant, as thereby there is an assumption that the violation of the ordinance was conclusive of the fact that deceased was negligent, instead of being, at the most, mere prima facie evidence thereof.
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanash, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed June 19, 1918.
    Busch, Liessmann & Roemer, for appellants; Alfred E. Barr, of counsel.
    Ivor Jeffreys, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs, as administrators of the estate of Louise Nay, deceased, brought an action against Charles S. Harris to recover for the wrongful death of the deceased under chapter 70, Rev. St. (J. & A. f 6384 et seg_.). The case was tried before the court and jury, there was a verdict and judgment in favor of the defendant, to reverse which plaintiffs prosecute this appeal.

The record discloses that on Sunday evening, October 11, 1914, at about 8 o’clock, the deceased was driving a one-horse surrey north in Clark street. As she reached Pratt boulevard, an east and west street, she started to drive west in the boulevard, and as she did so the defendant, who was driving an automobile, was coming south in Clark street. The automobile collided with the surrey, the deceased was injured and as a result thereof died a few days afterwards. There was a double track street car line in Clark street. The deceased was driving north in Clark street east of the east or northbound track. There were four young people riding in the surrey with the deceased. After a northbound street car had passed the surrey, the deceased started to turn west across the tracks at the intersection of Pratt boulevard and Clark street. The automobile was coming south on the west side of the southbound track, being driven by the defendant, and there was a collision between the automobile and surrey, which resulted in the death of the deceased.

The theory of the plaintiffs was that the surrey did not turn west across the tracks until it had passed the center of the street intersection, while the theory of the defendant was that the surrey proceeded across the tracks at the south side of Pratt boulevard, appearing suddenly from behind the street car and but a few feet in front of the automobile. 'Since we have reached the conclusion that there should be a new trial, we do not express any opinion as to the weight of the evidence.

Complaint is made of the refusal of the court to admit in evidence the verdict of the coroner’s jury. The verdict found that Louise Nay came to her death from the effects of injuries received “when one horse surrey owned and driven by deceased, was struck by Cadelac’ automobile owned and operated by Charles S. Harris, southbound, at the intersection of Clark street and Pratt Blvd., at about 8 p. m., October 11th, 1914.

“We find automobile was run at an exceedingly high and dangerous rate of speed and that said Charles S. Harris was guilty of gross and criminal carelessness amounting to manslaughter, and recommend that he be held to the Grand Jury upon a charge of manslaughter, until discharged by due course of law.”

We have carefully considered this question, and while it is not free from difficulty, we are of the opinion that the verdict was properly excluded. The Supreme Court has held that when the verdict of a coroner’s jury is properly filed with the clerk of the Criminal Court in Cook county and with the clerk of the Circuit Court in other counties of the State, it becomes a public record and as such is competent evidence to be considered as tending to prove any matter properly before the coroner, which appears on the face of the inquest. Novitsky v. Knickerbocker Ice Co., 276 Ill. 108. In that case the verdict found that the deceased came to his death by being crushed under the wheels of a wagon owned by the defendant, and then proceeded to censure the street car company for blockading the street with cars. It was held that the verdict was inadmissible, as the censure of the street car company exceeded the province of the coroner’s jury, and that their duty was to determine whether there was probable cause for believing a crime had been committed, etc. The court there said (108): “Had the jury believed, from the testimony before it, that Martin Johnson, the driver, or anyone else, was criminally liable for the death of the boy, it would have been its duty to so find, and that would have been a proper finding to make. It is not within the province of the coroner’s jury to fix the civil liability of anyone growing out of an accident resulting in the death of an injured person, except in so far as the finding required by the statute to be made may have such effect.”

In Devine v. Brunswick-Balke-Collender Co., 270 Ill. 504, it was held that the verdict of a coroner’s jury, which, after finding that the deceased came to his death from injuries received by being struck and thrown to the ground by an auto supply car owned by the defendant and driven by one Foy, found from the testimony that Foy “was blameless for this unfortunate occurrence, and we therefore recommend his discharge from further custody,” was admissible in evidence. The court there said (512): “The question as to whether or not Foy was blameless of the accident was an essential matter before the coroner’s jury for their investigation and a proper matter to be included in their verdict and as such to go to the jury.”

The question before us, therefore, is whether the coroner’s jury in the instant case exceeded their province when they found that the automobile was run at an exceedingly high and dangerous rate of speed and that the defendant was guilty of gross and criminal carelessness amounting to manslaughter, and recommended that he be held to the grand jury upon a charge of manslaughter. If the jury, after finding the manner in which the deceased came to her death had further found that the defendant should be held to the grand jury upon a charge of manslaughter, this would manifestly be proper under the authority of the Devine case, supra, where they found the driver of the wagon blameless, but we think the jury exceeded their authority when they purported to find that the automobile was run at an exceedingly high and dangerous rate of speed, and that the defendant was guilty of gross and criminal carelessness, as this was a mere evidentiary fact. Foster v. Shepherd, 258 Ill. 164.

Plaintiffs also contend that it was error to exclude the depositions of witnesses taken before the coroner at the inquest — that they should have been admitted for the purpose of impeachment. What the depositions contained does not appear in the record, so that we are unable to say whether they would in any way tend to impeach the testimony of the witness given on the trial. But in any event we think the offered testimony was properly excluded. Counsel, when the offer was made, said, “I will offer certain excerpts here.” We think the proper way would have been to use such portions of the depositions in the cross-examination of the witness, and then if it appeared that the witness’ testimony was different from that contained in the depositions, such questions and answers might have been read. The' depositions were not admissible as original testimony. Knights Templars & Masons’ Life Indemnity Co. v. Crayton, 110 Ill. App. 648; Pittsburgh, C. & St. L. Ry. Co. v. McGrath, 115 Ill. 172.

Complaint is made of instructions 26, 27 and 28, given at the request of the defendant.

Instruction 26 told the jury that the ordinances of the City of Chicago prohibited under penalty the driving of any horse at more than 4 miles an hour in turning any comer and in crossing any street intersection, and that if the jury believed that the deceased was “riding in a surrey which was being driven in violation of said provision of said ordinances, and that such violation, if any, was participated in by plaintiff, Lillian Mabel Nay, and said intestate, Louise Nay, and was negligence which proximately contributed to the alleged accident in question, then the plaintiffs cannot recover and you should find the defendant not guilty. ’ ’

Instmction 27 was in the same language, except that the ordinance referred to provided that vehicles, during certain hours, should carry at least one lamp, etc. Instmction 28 was also in the same language, except that the ordinance referred to provided that vehicles in turning corners to the left shall pass to the right of the intersection of the two streets.

Each of these instructions directed a verdict in case the jury found that the deceased had violated the ordinance. It is contended that there was no evidence as to the speed at which the horse was being driven at the time of the accident, except that it was a slow trot. There is no testimony as to how many miles per hour the horse was traveling at the time. At most the evidence is that the horse was being driven on a slow trot, and after a careful consideration of all the evidence in the record we are of the opinion that there was no evidence that would warrant the conclusion that the ordinance was being violated. As to whether there were lights on the surrey, witnesses testified on behalf of plaintiffs that there were two lamps burning, and a witness testified on behalf of the defendant that he did not notice any lights on the surrey, and from the evidence offered on behalf of the defendant, viz.: that the surrey was not seen until it emerged from the rear of the street car, at which time the automobile was only a few feet distant, it is clear that the question of lights or the absence of lights on the surrey had nothing to do with the accident. We are therefore of the opinion that instructions 26 and 27 were erroneous and misleading and should not have been given. There was evidence, however, that would warrant the giving of instruction 28. Further, there is an ambiguity in the three instructions mentioned, where the jury were told that if they believed from the evidence that at the time in question the deceased was violating the ordinances, “and was negligence which proximately contributed to the accident in question,” then the verdict should be for the defendant. There is at least an assumption that the violation of the ordinance was conclusive of the fact that the deceased was negligent, while the most that could be said is that it was only prima facie evidence of that fact. United States Brewing Co. v. Stoltenberg, 211 Ill. 531.

Complaint is made of the giving of other instructions on behalf of the defendant, but we think these questions can be obviated on a retrial of the case.

Defendant contends that the record does not disclose that it contains all of the instructions given and refused, and exception taken by the plaintiffs, that for aught that appears other instructions may have been given which cured the errors, if any, in those complained of. The record in this case is very inartificially prepared, and the abstract is even more so, but we think it is sufficient to preserve the points made. The instructions complained of directed a verdict and therefore could not be cured by other instructions.

The judgment of the Superior Court of Cook county is reversed and the cause remanded.

Reversed and remanded.


text:
    Michael Zimmer, former Sheriff, for use of Anna Brown, Appellee, v. B. A. L. Thompson, Appellant.
    Gen. No. 23,811.
    1. Ne exeat, § 4

       — when surety cannot complain of insufficiency of petition. In a suit against the surety on a ne exeat bond given by the defendant in a separate maintenance suit, the surety cannot question the sufficiency of the petition in the separate maintenance proceeding.
    2. Ne exeat, § 4* — who required to sign bond. It is not essential that the bond required of one in whose behalf a writ of ne exeat is issued be executed by any other than such person.
    3. Ne exeat, § 4* — when surety may not complain of insufficiency of bond. The surety on a ne exeat bond cannot, where no motion has been made to quash the writ and he has not surrendered or attempted to surrender his principal, be heard, in a suit on the bond, to complain of the insufficiency of the bond given by complainant on the issue of the writ.
    4. Ne exeat, § 4* — when surety estopped to complain of irregularities in proceedings in which bond was issued. Even though there were irregularities in the separate maintenance proceedings wherein a writ of ne exeat was issued, the surety on a ne exeat bond whereunder his principal was released is estopped to complain of such irregularities in a suit on the bond, and the bond is good as a common-law obligation.
    5. Ne exeat, § 4* — when surety estopped by -recitals in bond. The recitals in a ne exeat bond that the defendant in a separate maintenance suit had been arrested by virtue of a writ of ne exeat issued out of the Circuit Court of Cook county, Illinois, on the complaint of the complainant, by which writ the sheriff was required to hold such defendant, imply that the requisite preliminaries as to issuing a writ were had and estop the surety on the ne exeat bond from raising any question as to them in an action on the bond.
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 19, 1918.
    Rehearing denied July 5, 1918.
    William B. Denmark, for appellant; Henry D. Coghlan and John B. Dandridge, of counsel.

      Daniel Anderson, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

This is a suit brought on a ne exeat bond by the sheriff for the use of Anna Brown against B. A. L. Thompson, surety on the bond. At the close of all the evidence there was a directed verdict in favor of plaintiff for $500, upon which judgment was entered, to reverse which defendant prosecutes this appeal.

The record discloses that Anna Brown brought a suit for separate maintenance against her husband, John Badcliff Brown. She also filed a verified petition praying that the People’s writ of ne exeat república issue against the defendant in that suit, that he might be prevented from departing from the jurisdiction of the court. An additional affidavit was filed in support of the petition, and the writ was awarded, upon condition that the complainant file a bond in the sum of $200 with good and sufficient security conditioned according to law, and that the defendant, John Badcliff Brown, might be admitted to bail upon giving bond with security in the sum of $500. Complainant there, Anna Brown, entered into a bond in the sum of $200, which was approved by the court and the writ issued. The defendant in that case was then taken into custody and released upon giving a bond in the sum of $500 with the defendant in the instant case as surety, which bond is the basis of this suit.

The defendant contends: First, that the petition filed by Anna Brown in the separate maintenance suit upon which the writ of ne exeat república was issued was not sufficient in law or equity to warrant the issuance of the writ; second, that the issuance of the writ was without warrant of law, for the reason that the complainant in that proceeding did not give the bond required by the statute; and third, that by the return of the writ by the sheriff issue was joined and that the separate maintenance suit was terminated in favor of complainant, but no disposition was made of the issues made by the petition, and for these three reasons the arrest of the defendant Brown in that case was illegal and the bond in suit void.

If we assume that the petition of the complainant in the chancery proceeding was insufficient as contended for, this would avail the defendant nothing, for if it was merely insufficient, it nevertheless conferred jurisdiction on the court, and if the defendant in that case desired to raise such question, he should have done so then, and, having failed, it cannot be questioned in this collateral proceeding. Hogue v. Corbit, 156 Ill. 540; Blue v. Sheppard, 28 Ga. 566.

To the contention that the issuance of the writ was void for the reason that the complainant did not give a bond as required by the statute, it is sufficient to say that the defendant offered in evidence a bond executed by the complainant in the sum of $200, as ordered and approved by the court. If the objection is that this bond was not executed by any person except the complainant, we think it is without merit. Section 11, ch. 97, Rev. St. (J. & A. ft 7617), provides that the court, after the issuance of a writ of ne exeat república, may at any time determine whether it ought not to be quashed or set aside, and section 9 of the same chapter (J. & A. 7615) authorizes the defendant here as surety on the bond in suit to at any time surrender the person taken under the writ and to be discharged from his obligation on the bond. No motion was made to quash the writ, and the defendant did not surrender or attempt to surrender his principal, and cannot in this collateral proceeding be heard to complain. Moreover, even if it be conceded that there was any irregularity in the separate maintenance proceeding, the bond in suit is good as a common-law obligation. By signing the bond the defendant procured the release of his principal — the bond accomplished the purpose desired — and the defendant is now estopped to question its validity.

The case of Stafford v. Low, 20 Ill. 152, on which the defendant relies for reversal, is not in point. That was an action of debt against the surety on a bond given to secure the release of a person taken on a writ of capias ad respondendum. The court there held that the surety could question the sufficiency of the affidavit which was the basis for the issuance of the writ, and this conclusion seems to have been reached for the reason that the proceeding was in the nature of an imprisonment for debt, which is forbidden by our constitution. It has been repeatedly held by our' Supreme Court that commitment for nonpayment of alimony is not imprisonment for debt, within the meaning of our constitution. Barclay v. Barclay, 184 Ill. 375; Wightman v. Wightman, 45 Ill. 167.

The contention that the proceedings under the petition for the writ have not been disposed of, we think, can in no way affect the matter. Again, if the defendant in the chancery suit thought that the writ was improperly issued, he should have taken steps in that case to have it quashed, and, having failed to do so, the defendant in this case is in no position to complain, since the court had jurisdiction. But there is another reason why defendant cannot prevail here. The bond in suit, which he executed, recites that the defendant in the separate maintenance suit had been arrested by virtue of a writ of ne exeat issued out of the Circuit Court of Cook county, Illinois, on the complaint of the complainant, by which writ the sheriff was required to hold the defendant in that case. This implies that the requisite preliminaries with reference to the issuing of the writ were had. Shattuck v. People, 5 Ill. 478. And defendant is, therefore, estopped by the recitals in the bond from raising any question as to the preliminary requirements. Kepley v. People, 123 Ill. 367.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.


text:
    P. R. McLeod, trading as McLeod & Company, Appellant, v. Alexander J. Alexander and Lucas Brodhead, Trustees, Appellees.
    Gen. No. 23,821.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Account stated, § 4

       — what does not constitute. The mere sending of monthly statements of account does not make an account stated if the goods for which they were sent were not purchased.

      Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 19, 1918.
    Statement of the Case.
    Action by P. E. McLeod, trading as McLeod & Company, plaintiff, against Alexander J. Alexander and Lucas Brodhead, trustees of the estate of Alexander J. Alexander, and Ashland Block Association, a corporation, defendants, to recover an amount claimed to be due as the purchase price of certain goods. From a judgment for defendants, plaintiff appeals.
    Barnhardt & Stafford, for appellant.
    Ernest Severy, for appellees.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Appeal and erbob, § 1410 — when judgment not distwrbed as against weight of evidence. In an action for the purchase price of goods where the evidence is conflicting and the Appellate Court cannot say that the finding was manifestly against the weight of the evidence, the' judgment will be affirmed.


author: Mr. Justice Thomson

text:
    Albert Pick & Company and Silas J. Whitlock, Trustee, Appellants, v. Charles D. Natalby et al., Appellees.
    Gen. No. 23,499.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 19, 1918.
    Rehearing denied and opinion modified July 5, 1918.
    Statement of the Case.
    Bill by Albert Pick & Company, a corporation, complainant, against Albert D. Natalby and Charles D. Natalby, copartners, as Natalby Brothers, defendants, for a discovery, to set aside a transfer of assets from the partnership to Natalby’s, a corporation, to enjoin a transfer or incumbering of the assets, the appointment of a receiver and to subject such assets to the payment of a judgment theretofore recovered by complainant against defendants, execution on which had been returned unsatisfied. Later, on motion, Silas J. Whitlock, as trustee in bankruptcy of the estate of Charles I). Natalby and Albert D. Natalby, individually and as copartners, and also as trustee for Natalby’s, a corporation, was permitted to intervene, and filed a supplemental bill for an accounting and to set aside certain conveyances as fraudulent. Later complainant Pick & Company filed a supplemental bill. From a decree sustaining demurrers to the supplemental bills and dismissing them for want of equity, complainants appeal.
    Abstract of the Decision.
    1. Bankruptcy, § 28

       — when MU by trustee for reconveyance of property conveyed to defendant by bankrupt is demurrable. A demurrer is properly sustained to a bill by a trustee in bankruptcy which prays that defendant be decreed to convey back to the trustee property which had been conveyed to him by the bankrupt upon payment to defendant of such sum as he had actually paid for it together with any sum which he may be found to be equitably entitled to, where complainant does not offer to pay defendant the sum which may be so found to be equitably due him.
    2. Bankruptcy, § 28* — what are rights of trustee against transferees of bankrupt’s property. The rights of a trustee in bankruptcy against persons to whom the bankrupt has transferred his property are such, and oily such, as he derives by and through the provisions of the Bankruptcy Act.
    3. Bankruptcy, § 28* — when trustee not entitled to have conveyance by bankrupt set aside. Where, on a bill by a trustee in bankruptcy to set aside a conveyance by the bankrupt to defendant, it appears on the face of the bill that the conveyance was made more than 4 months before the petition in bankruptcy was filed and it is not alleged that the conveyance was made by the bankrupt to hinder and defraud his creditors, or that he was insolvent when it was made, or that defendant was not a bona fide purchaser for a fair consideration, but it appears that he purchased in good faith, the fact that certain incumbrances, subject to which he purchased, were void, does not give the trustee the right to set aside the conveyance.

      Homer K. Galpin, Samuel G. Hamblen and E. L. Duck, for appellants.
    Richberg, Ickes, Davies & Lord, for appellees Abram J. Liebman and Leah Liebman; John S. Lord, of counsel.
    Winston, Payne, Strawn & Shaw, for appellee Fred Miller Brewing Company; Edward W. Everett and T. Irving Christopher, of counsel.

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

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

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

   Mr. Justice Thomson

delivered the opinion of the court.

4. Bankruptcy, § 28 — when trustee should intervene in foreclosure suit against bankrupt to have trust deeds and notes canceled. Where, prior to and at the time of the appointment of a trustee in bankruptcy, a bill to foreclose trust deeds conveying property of the bankrupt is pending, the trustee cannot assert any rights which he may have with regard to the property involved, the trust deeds and the notes secured by them by filing a bill, whether original or supplemental, in a court having concurrent jurisdiction with that in which the foreclosure suit is pending, to restrain the foreclosure suit and to have the notes and trust deeds declared void and canceled, but his proper course is to intervene in the foreclosure suit.

5. Equity, § 148* — when bill is demurrable for lack of. A bill by a trustee in bankruptcy against a holder of notes secured by a trust deed which sets up usury on the part of defendant, prays that an accounting may be had between defendant and the bankrupt, and that if it appears that usurious interest has been paid, the amount shall be determined, the notes canceled and the trust deeds declared void, is demurrable for failing to offer to do equity in case any sum is found to be equitably due the defendant.

6. Usury, § 45* — when bill to cancel notes and trust deed is demurrable. Where, on a bill to set aside a conveyance and to cancel certain notes and the trust deed securing them on the ground of usury, it appears from its allegations that the loans for which the notes and -deed were given, were regular and free from usury, the only allegations to the contrary being conclusions merely, a demurrer is properly sustained to the bill.

7. Torbens Act — when demurrer sustained to bill of judgment creditor not complying with by filing judgment. Where, on a bill by a judgment creditor to set aside a conveyance by the debtor as in fraud of his creditors, it appears that the conveyance was made a month after complainant recovered judgment, that the title to the property conveyed was registered under the Torrens Act (J. & A. 1 2284 et seq.) and that no attempt was made to file a certificate of complainant’s judgment with the Registrar of Titles, as was essential under the Torrens Act (J. & A. 2284 et seq.) to render it a lien on the property, until after the conveyance to defendant, a demurrer is properly sustained to the bill.

8. Appeal and error, § 198 — lacle of jurisdiction of Appellate Court of constitutional question. The Appellate Court has no authority to declare any act of the legislature unconstitutional and void, but where such a question is involved the proper course is an appeal to the Supreme Court.

9. Appeal and error, § 200* — when validity of act is not involved. The question of the validity of an act cannot be said to be involved in an appeal where it is not raised in the trial court but first appears in appellant’s reply brief.

10. Mortgages, § 470* — when judgment creditor may have relief in foreclosure suit. A judgment creditor with a valid lien against property involved in a foreclosure suit, subject to such rights as the complainant may have by reason of the notes and trust deed sought to be foreclosed, may obtain full relief in the foreclosure suit.

11. Injunction, § 28* — when foreclosure suit not enjoined. A foreclosure suit will not be enjoined for the relief of a creditor who may obtain full relief in the foreclosure proceeding, and this rule is not affected by the fact that the parties to the injunction proceeding are not the same as the parties to the foreclosure suit, as the purpose of the rule is to protect the rights of courts rather than of parties, to avoid conflict of jurisdiction and to prevent confusion and delay in the administration of justice.

12. Equity, § 263* — when supplemental hill proper. Where the parties are at issue upon the original bill, and facts arise which show that it is necessary to pray for further relief or for additional discovery, or if new charges are required to be made, it is proper to introduce such additional matter by a supplemental bill.

13. Equity, § 263* — when supplemental hill may he brought. A supplemental bill may be brought not only to insist upon the relief prayed in the original bill, but also to insist upon other and different relief from that sought in the original bill, where subsequently arising facts require it.


text:
    The G. H. Hammond Company, Appellee, v. George E. Ford, Appellant.
    Gen. No. 23,576.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 14

       — what constitutes prima facie case in action of first class for services rendered under contract, Where, in an action of the first class in the Municipal Court of Chicago to recover for services rendered under a contract and for a breach of the contract, plaintiff puts defendant on the stand and through him introduces evidence that an itemized account of the charges for such services, which was shown the witness, had been checked up by defendant’s employees and that it correctly stated the amount that defendant’s books showed to be due after being so checked, a prima facie case is made out as to the charges for services and a motion to instruct the jury to find for defendant is properly overruled, even though no evidence is introduced by plaintiff, in presenting his case, regarding the issues raised by defendant’s affidavit of merits as to plaintiff’s alleged failure to do the various things called for on its part under the contract.

      Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. F*rt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 19, 1918.
    Statement of the Case.
    Action of the first class in the Municipal Court of Chicago by The G. H. Hammond Company, a corporation, plaintiff, against George E. Ford, defendant, on a contract. There was a verdict for plaintiff for $1,487.98. Plaintiff, on the court’s suggestion, filed a remittitur for $391.50 and judgment was entered in its favor for $1,096.48, from which defendant appeals, plaintiff assigning cross errors as to matters affecting a claim for set-off filed by defendant.
    Ditchburne & Westberg, for appellant.
    Henry Veeder, Robert C. McManus and Frank L. Horton, for appellee.

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

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

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

   Mr. Justice Thomson

delivered the opinion of the court.

2. Appeal and error, § 538* — when error in refusing to instruct jury to find fof defendant is not reviewahle. Denial of a motion to instruct the jury to find for defendant at the close of plaintiff’s evidence cannot be urged as error, where the .motion was not renewed at the close of all the evidence.

3. Appeal and error, § 538* — when refusal to direct verdict for defendant is reviewahle. The ruling of the trial court, made after defendant had rested, denying a motion, made at the close of plaintiff’s case, to instruct the jury to find the issues for the defendant as to one of the items of plaintiff’s claim, is properly reviewahle where the evidence in rebuttal following the motion had nothing to do with such item.

4. Warehousemen, § 23* — when waiver of full compliance with contract for delivery of specified amount of goods for storage is shown. In an action to recover for the breach of a contract which called for the delivery by defendant of a certain quantity of goods for storage, evidence that defendant stated to plaintiff’s agent that he feared that he would not be able to deliver such quantity, but would go out and get sufficient goods to fulfil the contract if plaintiff insisted, whereupon the agent told him that plaintiff would not be technical but that defendant should do the best he could, held to show a waiver by plaintiff of full compliance with the provision requiring defendant to deliver the specified amount of goods for storage.

5. Principal and agent, § 8* — when agent shown to have authority to waive full compliance with storage contract. In an action to recover for the breach of a contract requiring defendant to deliver to plaintiff for storage a certain number of barrels of apples, the manager of plaintiff’s storage warehouses, who negotiated dealings with defendant which resulted in the contract, had charge of soliciting plaintiff’s storage business and of the storage plant and was authorized to make storage contracts binding, on plaintiff, held to have authority to waive full compliance with the provision as to the number of barrels which should be delivered.

6. Appeal and error, § 1424* — when errors as to set-off are harmless. Where a defendant filing a statement of set-off fails to make out a case on his set-off and, under the evidence, is not entitled to have any allowance upon his claim, errors having to do with his claim are harmless.

7. Warehousemen — what is measure of damages for injury to stored goods. Where, in an action on a contract for the storage of goods, defendant files a claim of set-off for damages to goods stored with plaintiff, his measure of damages is the difference between the fair market value if they had been withdrawn from storage in good condition at seasonable times and the amount which he was able to obtain for them in their damaged state.

8. Warehousemen, § 27 — when damages for injury to stored goods not shown. In am action to recover under a contract for the storage of goods, wherein defendant filed a claim of set-off for damages to goods stored with plaintiff, evidence held insufficient to show the damages to the goods in question, in that it failed to show of what the goods consisted, their fair market value or that after they were damaged defendant sold them for their market value in- their then condition.


text:
    The Blaisdell Machinery Company, Appellant, v. Frank Voightmann and Dolly Gasoline Extracting Company, Appellees.
    Gen. No. 23,601.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 19, 1918.
    Statement of the Case.
    Action by The Blaisdell Machinery Company, a corporation, plaintiff, against Frank Yoightmann and Dolly Gasoline Extracting Company, a corporation, defendants, to recover on a bond, on which defendant Yoightmann was surety, given, with certain notes, by the Dolly Company for the purchase price of certain machinery. Service was had on defendant Voightmann only. From a judgment for defendant Voightmann, plaintiff appeals.
    Abstract of the Decision.
    1. Pbincipai. and subety, § 8

       — what is nature of obligation of surety. As a general rule, a surety is an original promisor and debtor from the beginning, and his obligation is primary, not collateral.
    2. Contbacts, § 180* — what considered in determining meaning of contract. In ascertaining the meaning of a contract between parties, 'the words by which the obligation has been expressed must prevail over those by which the parties may have described themselves.
    3. Indemnity, § 3.1* — <what is nature of obligation of surety on bond indemnifying against nonpayment of notes. Where, by the terms of a bond given in connection with promissory notes, the surety’s undertaking is that his principal will indemnify the obligee for all loss and expenses, including lawsuits and attorney’s fees, which may happen or come to the obligee by reason of the nonpayment of the notes by the principal, the surety’s liability is, as to these matters, primary, but is collateral as to the notes themselves and their payment at maturity.
    4. Indemnity, § 24* — what is prima facie case in action on bond indemnifying against nonpayment of notes. In a suit against a surety on a bond given for the payment of promissory notes by which he undertakes that his principal will indemnify the obligee for all loss or expenses to the latter by the principal’s nonpayment of the notes, to make out a prima facie case, there must be evidence showing, or tending to show, that the notes are past due and unpaid and that plaintiff has suffered loss or expense by reason of the principal’s failure to pay them when due, and evidence merely that certain of the notes are past due and unpaid is insufficient, especially where not only is no loss shown, but it is shown that the principal is contesting the value of the consideration for which the notes were given.

      Culver, Andrews, King & Stitt, for appellant.
    Bell & Cross, for appellees.

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

   Mr. Justice Thomson

delivered the opinion of the court.


text:
    Wearcrete Engineering Company, Appellee, v. Newton Engineering Company, Appellant.
    Gen. No. 23,765.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Look-wood I-Ionobe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 19, 1918.
    Rehearing denied July 5, 1918.
    Statement of the Case.
    Attachment by Wearcrete Engineering Company, a corporation, plaintiff, against Newton Engineering Company, a corporation, defendant. The plaintiff filed a declaration and an affidavit of claim, and the defendant filed a plea of the general issue and also a special plea, supported by an affidavit, but no affidavit of merits was filed. On motion, later made by the defendant, an order was entered, giving it leave to withdraw its special plea. Later, the court, on motion of the plaintiff, ordered the plea of the general issue stricken for want of an affidavit of merits and entered a default against the defendant for want of a plea, following which, the plaintiff’s damages were assessed at $442.48, and judgment was entered against the defendant for that amount. At a subsequent term, the defendant made a motion to vacate the judgment, which motion the court denied, and the defendant has appealed from that, order.
    Stephen A. Day and John M. Duffy, for appellant.

      Abstract of the Decision.
    1. Judgment, § • 133

       — when default may he vacated after term. After the expiration of the term at which a judgment by default is entered, the court is without jurisdiction to entertain a motion to vacate it, unless made under Hurd’s Rev. St. ch. 110, sec. 89 (J. & A. f 8626).
    2. Judgment, § 272* — how motion to vacate after term must he made. Under Hurd’s Rev. St. ch. 110, sec. 89 (J. & A. If 8626), a motion to vacate a judgment by default entered at a previous term cannot be made orally, but must be in writing.
    3. Appeal and ebrob, § 1568* — when question of irregularity in procedure in obtaining judgment hy default is immaterial. The question whether or not a case had been properly placed upon a printed calendar, and whether or not the action of the court in entering judgment by default was taken at a time when the ease had been regularly reached for trial, is immaterial where the record shows that defendant was in default.
    4. Judgment, § 106* — when defendant is in default. Where plaintiff has filed an affidavit of claim with his declaration and defendant has, on his own motion, been given leave to withdraw a special plea which he had filed with a plea to the general issue, but without filing any affidavit of merits, the effect of the granting of his motion is to leave his plea of the general issue unsupported and defendant is in default, and when defendant’s time to plead has expired, plaintiff is entitled to judgment at any time.
    5. Pleading, § 162* — what is proper practice upon failure to timely file affidavit of merits. While the usual practice is for the court to enter an order striking the plea of the general issue from the files when there is no affidavit of merits and the time to plead has expired, advantage of the omission to file the affidavit of merits may be taken by motion for judgment as in case of default, under the provisions of section 55 of the Practice Act (J. & A. If 8592).
    6. Judgment, § 106* — when no notice to defendant in default for want of pleading is necessary. Where a defendant is in default for want of an affidavit of merits, plaintiff is entitled to have his formal order of default entered and judgment awarded under the provisions of section 55 of the Practice Act (J. & A. 8592), without notice to the defendant.
    495
    Thomas Mack, for appellee.

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

   Mr. Justice Thomson

delivered the opinion of the court.


text:
    William R. Wiley, Appellant, v. Childs Company, Appellee.
    Gen. No. 23,784.
    (Not to be reported in full.)
    Abstract of the Decision.
    Innkeepers, § 5

       — when restaurant Keeper not liable for loss of overcoat of customer. A restaurant keeper is not liable for the loss of an overcoat by a customer in the restaurant, where the evidence shows that he hung his coat up on a hook furnished, without availing himself of checking privileges provided by the restaurant keeper, who had given notice that he would not be responsible for personal property not checked, even though the customer claims not to have seen such notice, which was on the menu cards and also on the walls.
    Appeal from the Municipal Court of Chicago; the Hon. John K. Pbindivilee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed June 19, 1918.
    Statement of the Case.
    Action by William R. Wiley, plaintiff, against Childs Company, a corporation, defendant, to recover the value of an overcoat, lost or stolen from defendant’s restaurant. From a judgment for defendant, plaintiff appeals.
    William R. Wiley, pro se.

    Winston, Payne, Straws & Shaw, for appellee; Leslie M. O’Connor, of counsel.

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

   Mr. Justice Thomson

delivered the opinion of the court.


author: Mr. Presiding Justice Dever

text:
    Leon A. Berezniak, Appellee, v. Beauregard F. Moseley and Idlewild Hotel & Investment Company, Appellants.
    Gen. No. 24,070.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1113

       — when appeal dismissed for insufficiency of hand. Where the order allowing an appeal states that “plaintiff" prays the appeal and the appeal is granted on condition that “said party” file an appeal bond, whereas the bond filed is signed by defendant, against whom the judgment was entered, the appeal will be dismissed.

      1 Appeal from the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the March term, 1918.
    Appeal dismissed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Action by Leon A. Berezniak, plaintiff, against Beauregard F. Moseley and Idlewild Hotel & Investment Company, a corporation, defendants, to recover for professional services. From a judgment for plaintiff for $150, defendants appeal.
    G. T. Graham, for appellant Idlewild Hotel & Investment Company.
    Beauregard F. Moseley, pro se.

    Leon A. Berezniak, pro se, and Rankin, Dittus & Lesemann, for appellee; Jacob E. Dittus, of counsel.

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.


text:
    Mark Levy and Arthur Levy, Appellees, v. Albert C. Barley, Appellant.
    Gen. No. 24,132.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Guaranty, § 9

       — when bonds and trust deed construed together. Where bonds and the trust deed executed to secure their payment appear to be a single transaction, in determining the liability of one who guarantees the payment of the bonds, the bonds and deed should be read together.
    2. Guaranty, § 14* — when recourse may be had to trust deeds to determine maturity of bonds. Where a guaranty is given of the payment of the principal and interest on certain bonds as they severally mature and the bonds are secured by a trust deed with which they form a single transaction, the date of maturity of the bond is not necessarily the date specified in the bonds themselves, but recourse may be had to the trust deed to determine their maturity.

      Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 1, 1918.
    Rehearing denied July 12, 1918.
    Statement of the Case.
    Action by Mark Levy and Arthur Levy, plaintiffs, against Albert 0. Barley, defendant, to recover on a bond guaranteeing the payment of the principal and interest of certain corporate bonds secured by a trust deed. From a judgment for plaintiffs for $2,339.81, defendant appeals.
    W. F. Mayer, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellees.

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

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.

3. Action, § 68 — when not prematurely brought on guaranty of payment of bonds and interest. Where the trust deed securing bonds provides that on the failure or refusal of the maker of the bonds to pay the bonds or any of them or any instalment of interest when due and payable and if the same shall remain unpaid for a period of thirty days, then all of the bonds shall become due and payable, an action may be brought on a guaranty given to secure the payment of the bonds on a default in the payment of interest, even though the time fixed in the bonds for the maturity of the principal has not arrived.

4. Guaranty, § 12*- — when guarantor not liable for interest. WThere the maturity of bonds is accelerated by bankruptcy proceedings against the maker or by default in the payment of interest thereon, as provided by the trust deed securing them, and the principal and interest to the date of the accelerated maturity are paid, one who had guaranteed the payment of the principal and interest of the bonds cannot be held liable for interest accruing after the accelerated payment.

5. Bankruptcy, § 59* — what is liability of guarantor upon bankruptcy of debtor. There is some force in the contention that section 16 of the Bankruptcy Act was intended to prevent, in the interest of creditors, a codebtor or guarantor from escaping liability in a contract by reason of the bankruptcy of a debtor.

6. Appeal and error, § 542*- — what must be pointed out in trial court. Refusal to grant a motion to strike out the answers of a witness is not error where the grounds on which the motion is based are not pointed out to the trial court.


text:
    Jacob Gottlieb, Appellee, v. Andrews & Company, Appellant.
    Gen. No. 24,144.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.

      Abstract of the Decision.
    1. Municipal Court op Chicago, § 19

       — when right to judgment on pleadings not waived. Under Hurd’s Rev. St. ch. 110, sec. 55 (J. & A. 1T 8592) where, in an action to recover back payments made under a contract during infancy, plaintiff sets forth in his statement of claim that he, while under the age of 21, entered into a contract with defendant under which he agreed to purchase certain shares of stock, that he paid a specified sum thereon, that he became of age on a specified date and thereafter disaffirmed the contract and demanded the return of the amount so paid, and files an affidavit in support of his statement and it does not appear that defendant filed any affidavit denying the allegations of the statement of claim or in support of any defense to the action, plaintiff is entitled to a judgment, and his right is not waived by the introduction of evidence in support of the statement of claim.
    2. Municipal Court op Chicago, § 29* — what not judicially noticed on appeal. The Appellate Court wrill not take judicial notice of the rules of the Municipal Court of Chicago.
    Statement of the Case.
    Action by Jacob Gottlieb, plaintiff, against Andrews & Company, a corporation, defendant, to recover back payments made by plaintiff, during infancy, on a contract for the purchase of corporate stock entered into by him during infancy and disaffirmed after coming of age. From a judgment for plaintiff for $155, defendant appeals.
    Maurice Alschuler, for appellant.
    Maguire & Mooney, for appellee.

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.


text:
    Distributors Coal Company, Appellee, v. Charles O. Race and Ambrosia Y. Race, Appellants.
    Gen. No. 24,153.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 448

       — when party estopped to bring second action. One who, without fault or fraud of the adverse party, takes judgment for a sum less than is actually claimed, is estopped to bring a second action for any balance due him before the entry of judgment.
    2. Judgment, § 473* — when creditor not bound by on note. The fact that judgment is entered by an indorsee on notes given for an amount incorrectly believed by a debtor and creditor to represent the amount due from the former to the latter does not preclude the creditor, who was not a party to the action by the indorsee, from thereafter bringing a separate action against the debtor to recover the additional sum actually due the creditor at the time the notes were delivered.
    Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Action by Distributors Coal Company, a corporation, plaintiff, against Charles 0. Race and Ambrosia Y. Race, defendants, to recover a balance claimed to be due for goods sold and delivered. From a judgment for plaintiff, defendants appeal.
    Fred H. Atwood, Charles O. Loucks and Vernon R. Loucks, for appellants; Geary V. Stibgen, of counsel.
    Henry M. Hagan, for appellee.

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

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.

3. Action, § 55 — when cause of may not be split. One cannot split a cause of action for a single breach of contract and bring several actions thereon.

4. Payment, § 6* — when acceptance of notes does not prevent recovery of balance of debt due. Acceptance of a debtor’s notes by a creditor in the erroneous belief that they represent the amount due him does not prevent him from compelling the payment of any additional amount actually due him, even though he has negotiated the notes.

5. Sales, § 329* — when joint liability may be found on contract for coal. In an action to recover a balance due on a contract for coal sold for use in an apartment house, brought against two defendants, a joint liability may he found, even though one defendant testifies that he was the owner of the house, where the other defendant signed notes given for an amount incorrectly believed to represent the total amount due, was made a defendant to the proceedings and did not deny joint liability under oath.


text:
    Martin Janci and Stefan Palansky, Appellees, v. Stefan, alias Steve Cerny, Appellant.
    Gen. No. 24,163.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Bill by Martin Janci and Stefan Palansky, complainants, against Stefan, alias Steve Cerny and John Cemy, defendants for an accounting in a wool polling business. From a decree for complainants, defendant Steve Cerny appeals.
    Sinden, Hassell & Osusky, for appellant; John H. McAuliffe, of counsel.

      Abstract of the Decision.
    1. Partnership, § 385a

       — what is unauthorized diversion of property by partner necessitating accounting. The delivery of warehouse receipts for property belonging to a partnership by a member to another is an unauthorized diversion of partnership property and such partner may be required to account for the profits derived from the use of the property.
    2. Equity, § 480* — when decree conforms to bill for accounting. There is no variance between a bill for an accounting charging wrongful use of partnership funds from which a partner has derived profits and a decree proceeding on the theory that transactions between the partner and another were transactions of the partnership and were on its behalf and for its benefit, and created a resulting trust, although not designated as such in the decree.
    3. Partnership, § 388* — when partner not excused from accounting for profits. The payment of certain sums by a partner to other members of a partnership in settlement of claims out of profits derived from assets of the partnership does not excuse the partner from accounting for profits derived from the use of warehouse receipts, of which use the other partners did not have full knowledge.
    4. Partnership, § 407* — when fraud by partner shown. Evidence held to warrant the finding, on a bill for a partnership accounting, that defendant, in fraud of the rights of complainants, had placed wool, which was owned by the partnership, in the hands of another person.
    Max Luster, for appellees.

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.


text:
    John Sexton & Company, Appellant, v. English Canning & Manufacturing Company, Appellee.
    Gen. No. 24,171.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

       — pleadings in action of fourth class. In an action of the fourth class in the Municipal Court of Chicago no written pleadings are required and the case is whatever the evidence introduced makes it.
    2. Municipal Court of Chicago — when error in taking acknowledgment to affidavit of merits is waived. Any error because an affidavit of merits is sworn to in the State before a notary public of another State, who had no legal authority to administer oaths in the State, is waived when plaintiff goes to trial upon the issues presented by its statement of claim and the affidavit of merits.
    3. Municipal Court of Chicago, § 28* — when question as to

      pleading may not be raised. The question whether an affidavit of merits in a case in the Municipal Court of Chicago was sworn to in the State before a notary public of a foreign State, having no legal authority to administer oaths in this State, cannot be raised for the first time on appeal.

      Appeal from the Municipal Court of Chicago; the Hon. John Richardson, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Action by John Sexton & Company, a corporation, plaintiff, against English Canning & Manufacturing Company, a corporation, defendant, to recover for breach of contract to sell certain merchandise to plaintiff. From a judgment in favor of defendant, plaintiff appeals.
    Blum, Wolfsohn & Blum, for appellant.
    Culver, Andrews, King & Stitt, for appellee; John W. Burdette, of counsel.

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

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.

4. Municipal Court of Chicago, § 5 — What not judicially noticed. The Appellate Court will not take judicial notice of the rules of the Municipal Court of Chicago.

5. Municipal Court of Chicago, § 5* — necessity of preserving rules in record. An objection to an affidavit of merits on the ground that it does not comply with the rules of the Municipal Court of Chicago cannot be urged on review where the rules are not preserved in the record.


text:
    C. E. Pratt, trading as Logan Square Automobile Station, Appellee, v. Indian River Garden Corporation, Appellant.
    Gen. No. 24,202.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James Donahoe, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Action by C. E. Pratt, trading as Logan Square Automobile Station, plaintiff, against Indian River Garden Corporation, defendant. From a judgment for $150.76 in favor of plaintiff, defendant appeals.
    Paul F. Compart, for appellant.
    John A. Bloomingston, for appellee.

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.

Abstract of the Decision.

Appeal and ebrok, § 1744 — when judgment affirmed. Even though defendant perfected an appeal from an order overruling a motion to vacate the judgment, if there is a failure to preserve, by a bill of exceptions, the affidavit in support of the motion, there is nothing to review and the judgment will be affirmed.


text:
    Hyman Silverman, Appellee, v. Harry Korshak and Isaac Lashkovitz, Appellants.
    Gen. No. 24,234.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry M. Eisheb, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Action by Hyman Silverman, plaintiff, against Harry Korshak and Isaac Lashkovitz, defendants, on a judgment note executed by defendant Lashkovitz, payable to defendant Korshak, and by him indorsed and delivered to plaintiff. From a judgment in favor of plaintiff for $639.21, defendants appeal.
    Hyman Soboroff, for appellants.
    Samuel W. Newman, for appellee.
   Mr. Presiding Justice Dever

delivered the opinion of the court.

Abstract of the Decision.

Appeal and error, § 801* — what must he preserved in hill of exceptions. A ruling of the trial court striking an affidavit of merits from the files cannot be reviewed in a court of appeals unless the pleading and ruling thereon are preserved in a bill of exceptions.


text:
    Abraham Lepine, Appellee, v. Chicago Waste Company, Appellant.
    Gen. No. 24,244.
    (Not to he reported in full.)
    Abstract of the Decision.
    Attorney and client, § 135

       — what evidence is improperly excluded in action for services. In an action by an attorney for legal services in obtaining information relative to alleged thefts from defendant and in aiding to prosecute certain persons, where there was evidence that a certain person was a client of plaintiff, evidence was improperly excluded which tended to show that plaintiff’s interest in the case was for the purpose of protecting such person in a controversy with another who, it was intimated, received certain property which it was charged was stolen from defendant

      Appeal from the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed and remanded.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Action by Abraham Lepine, plaintiff, against Chicago Waste Company, defendant, for legal services. - From a judgment for plaintiff for $200, defendant appeals.
    Richard J. Cooney and John A. Verhoeven, for appellant.
    Abraham: Lepine, pro se.

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

   Mr. Presiding Justice Dever

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    John E. Merz and Charles E. Merz, Appellants, v. Leon E. Stewart, Appellee.
    Gen. No. 24,000.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Conflict of laws, § 49

       — when doctrine of comity between States has no application as to sale of personalty. The doctrine of comity between States has no application where an Illinois manufacturer sells a motorcycle and side car to residents of Indiana and the latter sell the property under a conditional sales contract to another person and such latter purchaser removes it from the State and sells it to a resident of Illinois, who does not know of the conditional sales contract, even though the conditional sales contract, which was unrecorded in either State, was good in Indiana between sellers and the purchaser and third persons.

      Appeal from the Municipal Court of Chicago; the Hon. John Richabdson, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Action in. replevin by John E. Merz and Charles E. Merz, plaintiffs, against Leon R. Stewart, defendant, to recover a motorcycle and side car sold by plaintiffs in Indiana under a conditional sale contract to another person, who sold the car to defendant. From a judgment for defendant, plaintiffs appeal.
    Marshall E. Gallion, for appellants.
    Lannen & Hickey, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Sales, § 221 — when purchaser may acquire good title. The possession of personalty is prima facie evidence of ownership, and unless a lien is reserved in accord with the statutes of the State the possessor may convey a good title to a bona fide purchaser, provided he is without notice of any intervening equities or claims.


text:
    Western Iron Construction Company, Appellee, v. S. A. Sternfeld and Harry N. Sternfeld, Appellants.
    Gen. No. 21,032.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in this court at the March term, 1918.
    Reversed with judgment of nil capiat and for costs.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Action by Western Iron Construction Company, a corporation, plaintiff, against S. A. Sternfeld and Harry N. ‘Sternfeld, defendants, to recover the contract price of 90 angle irons. From a judgment for plaintiff for $176.95, defendants appeal.
    Stedman & Soelke, for appellants.
    I. B. Perlman, for appellee.

      Abstract of the Decision.
    1. Sales, § 126

       — when delivery not shown. In an action to recover the purchase price of a certain number of angle irons, evidence held insufficient to show delivery of a portion of the irons by an expressman at the building at which defendants were working.
    2. Sales, § 126* — wrfiat does not constitute delivery of angle irons to building contractors. The mere placing by an expressman of angle irons, for use in a building under construction, in the street alongside the curb, does not constitute a delivery to the contractors, if no one representing the latter received the irons or checked them up.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Horace D. Kennedy, Appellee, v. North Avenue Motor Sales Company, Appellant.
    Gen. No. 24,083.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Action hy Horace D. Kennedy, plaintiff, against North Avenue Motor Sales Company, a. corporation, defendant, to recover hack the purchase price of a motor truck. From a judgment for plaintiff for $75, defendant appeals.
    Samuel A. Miller and Aaron R. Eppstein, for appellant.
    No appearance for appellee.

      Abstract of the Decision.
    Sales, § 352

       — when purchaser may recover hack purchase price of motor truck. The purchaser of a motor truck is entitled to recover back the purchase price where the written contract of sale contains a condition that the truck is “to be running and in usable condition,” and it is impossible to run the truck.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Blanche G. lane, Appellee, v. Frederick J. lane, Appellant.
    Gen. No. 24,103.

      (Not to be reported in full.)

    Appeal from the Superior Court of Cook county; the Hon. Henry Guerin, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Bill by Blanche Gr. Lane, complainant, against Frederick J. Lane, defendant, for separate maintenance. From a decree ordering the payment of $65 monthly to complainant and the sum of $300 for the necessary expense of an operation, hospital expenses, doctor’s fees, etc., defendant appeals.
    Lynden Evans, for appellant.
    Smith, Fake, Levinson & Hoffman, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Husband and wm;, § 217 — when shown that wife was living apart from husband without fault of her own. On a bill by a wife for separate maintenance where it appeared that defendant cut off complainant’s account at the grocery, meat market and other stores, shut off the gas and electric light in their apartment and refused to pay rent therefor and left complainant, and the testimony tended to show that defendant consorted with other women, evidence held sufficient to show that complainant was living apart from defendant without her fault.

2. Husband and wife, § 243* — what is proper monthly allowance to wife in separate maintenance suit. The allowance to a wife, in a separate maintenance suit, of the sum of $65 per month was proper, although during the marriage the wife had earned $1,550 as a school-teacher, where she was in poor health at the time of trial and a surgical operation was, according to a medical witness, necessary, and the husband had been earning $4,100 per year.

3. Husband and wife, § 243* — what is not excessive allowance to wife for surgical operation. In a separate maintenance suit, the allowance of the sum of $300 for a necessary surgical operation for the wife was proper where the husband had an income of $4,100 per year.

4. Husband and wife, § 265* — when application to vary monthly allowance to wife is proper. Where a wife, in a separate maintenance suit, has been awarded a specific sum payable monthly on account of her poor physical condition, and where she would otherwise be able to support herself, if her condition or the financial circumstances of the husband materially change in the future, an application to vary the allowance will be proper.


text:
    Western Hardware Manufacturing Company, Appellee, v. H. B. T. Chandler and W. L. lindgren, Appellants.
    Gen. No. 24,149.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Judgment, § 82

       — when affidavit in support of •motion to vacate by confession is insufficient. An affidavit presented in support of a motion to vacate a judgment by confession, under a power of attorney in a lease against officers of a corporation individually leasing the premises, presents no meritorious defense In an allegation that the corporation occupied the premises and paid the rent accruing during the time of such occupation.
    Appeal from the Municipal Court of Chicago; the Hon. Harby M. Fishes, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Rehearing denied July 12, 1918.
    Statement of the Case.
    Western Hardware Manufacturing Company, a corporation, procured a judgment against H. B. T. Chandler and W. L. Lindgren for $155 by confession under a power of attorney contained in a lease under seal between the parties to certain premises. Defendants moved to vacate this judgment, but such motion was denied and an appeal from such order was prayed and perfected.
    Adler, Lederer & Beck, for appellants.
    Cruice & Langille and Henry M. Shabad, for appellee; Henry M. Shabad, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Landlord and tenant, § 443 — how lease cannot he terminated. A lease cannot be terminated contrary to its covenants by parol.

3. Contracts, § 251* — hoiv may not he modified. A sealed executory contract cannot he changed, altered or modified by parol.

4. Judgment, § 82* — when denial of motion to vacate hy confession is proper. ■ The trial judge does not abuse his discretion in denying a motion to vacate a judgment hy confession where there are no facts stated, in an affidavit in support of a motion to vacate the judgment, which constitute any defense upon the merits.


author: Mb. Justice Holdom

text:
    James F. Bishop, Administrator, Appellant, v. Rose H. Rowe, Appellee.
    Gen. No. 24,156.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed July 1, 1918.
    Statement of the Case.
    Bill by James F. Bishop, administrator of the estate of James Rowe, deceased, complainant, against Rose H. Rowe, defendant, to recover certain personal property averred to belong to the estate of defendant’s deceased husband and which defendant contends was given her by her husband during his lifetime and by her reduced into possession. From a decree dismissing the bill for want of equity, complainant appeals.
    Fred H. Atwood, Charles O. Loucks and Vernon R. Loucks, for appellant.
    Landon & Holt, for appellee; Robert N. Holt, of counsel.

      Abstract of the Decision.
    1. Husband and wife, § 114

       — when not shown that bonds belonged, to husband’s estate. In a suit by an administrator against the intestate’s wife to recover bonds claimed to belong to the intestate’s estate, where there is evidence that the husband informed the person through whom he purchased the bonds that he bought them for his wife and with her money; that he gave the money he earned to the wife with the understanding that what was not used for family expenses belonged to her; that the interest on the bonds was paid to the wife by checks to her order; that he inquired of the person through whom the bonds were purchased if anything further on his part was necessary to make her ownership effective, that she owned the bonds and the only property in which he had an interest was the homestead, which was held in joint tenancy by him and the wife; that the wife had always had the bonds in possession and received the interest; that the husband had no property at the time he was married and the accumulations were after the marriage and mainly by the wife’s thrift, the bill is properly dismissed.
    2. Husband and wife, § 69* — what is sufficient consideration for gift to wife. A gift by a husband to his wife can be- sustained without any actual consideration other than that which arises from their relationship, love and affection being a sufficient consideration as between them.
    3. Husband and wife, § 70* — when equity will sustain gift to wife. The rights of creditors not intervening, equity will sustain a gift from a husband to his wife as an executed consideration, where the possession of the subject of the gift is in the donee.

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

   Mb. Justice Holdom

delivered the opinion of the court.