text:
    Bank of Montreal, Appellant, v. Estate of Asa Griffin, Deceased, Appellee.
    Gen. No. 5,973.
    ' 1. Judgment, § 401

      -—privity of. Of two conflicting judgments obtained in courts of concurrent jurisdiction on the same claim by the same plaintiff against the same defendant, that which is later in point of time will prevail.
    2. Judgment, § 419*—when dismissal of appeal to Circuit Court not an adjudication on merits. A judgment dismissing an appeal from the Probate to the Circuit Court at the cost of appellant, either on his own motion or that of the court, at any time before or during the trial, does not have the effect of an adjudication on the merits.
    3. Appeal and error, § 783*—necessity of court's signature to till of exceptions. A stenographer’s statement added to a proposed bill of exceptions, to the effect that the court found the issues against a claimant and dismissed an appeal from the Probate Court, is not entitled to any weight as a finding or judgment of the court on the merits, if the proposed bill of exceptions was not signed.
    4. Judgment, § 419*—when dismissal of appeal to Circuit Court not res adjudicata. Where upon appeal from an order of the Probate Court to pay a judgment rendered in the Appellate Court, the petition was denied in the Circuit Court upon the ground that a suit covering the same subject-matter pending in the Circuit Court resulted in a dismissal, held that the dismissal of the suit in the Circuit Court did not constitute an adjudication of the claim, and that a judgment should be entered to direct the administrator to pay the judgment of the Appellate Court within sixty days or to make application for the sale of real estate to pay debts as prayed in the petition, to satisfy the judgment in the Appellate Court, which was last in point of time.
    Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded with directions.
    Opinion filed October 13, 1914.
    Robert F. Pettibone, John S. Goodwin and McDougall & Chapman, for appellant.
    Stead, Woodward & Hibbs and Browne & Wiley, for appellee.

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

   Mr. Presiding Justice Carnes

delivered the opinion of the court.

Asa Griffin died a resident of La Salle county July 19, 1905, and his widow, Mary L. Griffin, was by the Probate Court of that county appointed administratrix of his estate, and qualified as such. At the time of his death there was. pending in the Circuit Court of Cook county a suit in assumpsit, brought against him by the Bank of Montreal, the appellant, on seven promissory notes; and after his death suit was brought by the Bank in the same court against Mary L. Griffin, his administratrix, on three promissory notes. These suits were consolidated and proceeded to a judgment for the defendant in the Circuit Court, and on appeal to a judgment in the Appellate Court of the First District, rendered May 2,1910, in favor of appellant for $19,295.27, to be paid in due course of administration. Bank of Montreal v. Griffin, 154 Ill. App. 616. The detail of the litigation resulting in that judgment is now of little importance, but it may be learned by reading the opinion in that case. July 12, 1910, appellant filed a petition in the Prohate .Court of La Salle county, praying that the administratrix be ordered to show cause why she should not pay said judgment, and April 5, 1911, there was a hearing on the petition and an order directing the administratrix to pay the judgment within sixty days or make application to sell real estate for the payment of debts. Appellee perfected an appeal from that order to the Circuit Court of La Salle county, April 24, 1911, and that court on a hearing November 18,1913, denied the petition, from which this appeal is prosecuted.

Appellee in support of the judgment relies on the following facts: On November 28,1905, appellant filed in the Probate Court of La Salle county a claim against the estate on all of these ten notes. February 9, 1906, the Probate Court, on a hearing, entered an order disallowing the claim. Appellant perfected an appeal to the Circuit Court of La Salle county February 19,1906. With both suits pending in the same court between the same parties, involving the same subject-matter, there was a trial May 9,' 1912, of the appeal from the order of the Probate Court disallowing the claim. The record shows that the parties appeared, waived a jury and submitted the cause to the court, and the court entered an order, which as abstracted reads: “Jury waived by agreement of parties, cause submitted to the court for trial and the court having heard the proofs submitted herein and on consideration thereof it is ordered that the appeal herein be and the same is hereby dismissed.

“It is therefore considered and ordered by the court that the defendant do have and recover of and from the plaintiff, Bank of Montreal, her costs and charges and have execution therefor.”

On the trial of the cause at bar appellant offered in evidence the judgment of the Appellate Court and the opinion of that court, the record of the case in the Cook County Circuit Court and the petition in and the order of the Probate Court and rested its case. Appellee then offered in evidence records showing the action of the Probate Court in disallowing the claim and the pendency of that suit in the Circuit Court on appeal, and showed that the subject-matter of the litigation was in each suit the same ten promissory notes; and further offered in evidence a report of the official stenographer of the proceedings in that case which had been prepared as a bill of exceptions and presented to the trial judge, but not signed by him or filed in the case, but the stenographer testified in this case that it was a true statement of what took place at the trial. It appeared from that writing that appellee appeared by counsel on the trial of that case and suggested to the court that appellant had a valid judgment for the ten notes in question in the Appellate Court of the First District, and that it ought to dismiss the appeal and ought not to have judgment in two places for the same cause of action, but that appellant, appearing by counsel, insisted on a hearing and the court proceeded to hear evidence in the case. Appelsuggested to the court that appellant had a valid judgment in the Appellate Court and a certified copy of the order of the Probate Court of April 5,1911, with some other records of the Probate Court. Then followed a discussion in which the court stated to appellant that it had its order, appealed from, in the Probate Court and had a judgment in Cook county; that if it succeeded in thé case on trial it would be obtaining two orders or judgments for the collection of the same debt; that with a judgment in the Appellate Court of the First District and an order of the Probate Court of La Salle county enforcing that judgment pending in the Circuit Court on appeal, he would dismiss the appeal unless they wanted to try the other appeal. The court then held, at the instance of appellant, as a matter of law: “The judgment of the Appellate Court of Illinois for the First District is res adjudieata as to the validity and amount of the claim of the Bank of Montreal against said estate.” It is true that there is added to the proposed bill of exceptions that “the court found the issues on said claim to be against the claimant and dismissed the appeal;” but this is merely the statement of the reporter and should receive no weight as a finding or judgment of the court, since said proposed bill of exceptions was not signed.

The theory of appellee is that appellant, by its action in the case above recited, submitted to the Circuit Court the whole controversy, including the force and effect of its Cook county judgment as a claim against the estate, and that the judgment of the Circuit C'ourt dismissing its appeal was an adjudication of that claim; and whatever motive the court may have had in dismissing the appeal, its judgment determined the rights of the parties in the matter of the collection of these notes, and should be treated as an adjudication on the merits and, being later in point of time than the judgment of the Appellate Court, is controlling and bars appellant from collecting that judgment.

Looking at the record orders, without considering what is attempted to be shown by' the testimony of the reporter and the unsigned bill of exceptions as to what occurred on the trial of the appeal from the disallowance of the claim, the only judgment on the merits in La Salle county was that of the Probate Court disallowing the claim. The order of the Circuit Court dismissing the appeal from that judgment was not a retrial of the case or an adjudication of the merits, and it left the judgment of the Probate Court with the same force and effect as though no appeal from it had been taken. It is said in County of Menard v. Kincaid, 71 Ill. 587, that the dismissal of an appeal ordinarily amounts to an affirmance of the judgment appealed from; and in 3 Cyc. 199, that when an appeal or writ of error is dismissed, whether on motion or from other cause, the whole case is out of court, and on page 200, that except in cases where an appeal has been prematurely taken or a failure to file the record within the time required, or of defects in the undertaking, or for want of prosecution, the dismissal of' an appeal operates as an affirmance of the judgment of the trial court. We know of no precedent for giving a judgment dismissing an appeal at the cost of appellant,—whether the court was induced to enter it on motion of appellant or on its own motion, at any time before trial or during the trial,—the force and effect of a judgment on the merits; and do not see how anything that might be said or done by court and counsel, not a part of the record, would give that order such an effect. But if we consider what took place on the hearing, as shown by the evidence of the official reporter, for the purpose of determining what may have been intended by the order dismissing the appeal, it is very clear that the court did not intend to pass on the merits of the case. Whether appellant was "entitled to a judgment on the merits, which it would have been compelled to abide or take an appeal, seems immaterial because no such judgment was entered.

The judgment of the Appellate Court sought to be enforced in the case at bar is later in date than that of the Probate Court. Appellee says, and we presume correctly, that the judgment last in point of time is the judgment to which effect must be given; that the rule is that, “Of two conflicting judgments procured in courts of concurrent jurisdiction on the same cause of action, by the same' plaintiff, against the same defendant, that which is later in point of time will prevail.” Under the rule announced by appellee and sustained by authority cited from other States, without citing any Illinois authority, and we know of none, the question presented to the trial court on the appeal from the order of the Probate Court was the same as though there was no other judgment than the one sought to be enforced in this proceeding; that is, the same order should have been entered on this appeal that would have been entered had there been no showing that there was another and prior judgment on the same subject-matter between the same parties.

The judgment is reversed and the cause, remanded with directions to the Circuit Court to enter a judgment directing the administrator to pay the judgment of the Appellate Court of the First District within sixty days or make application for the sale of real estate for the payment óf debts.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Ethelbert C. Richmond, Appellee, v. City of Marseilles, Appellant.
    Gen. No. 5,768.
    1. Municipal corporations, § 998

      —liability for defective sidewalks. A city is liable for personal injuries to a pedestrian resulting from a defective sidewalk contructed on private property if it is treated by the city as a' public walk and permitted to be used as such.
    2. " Negligence, § 134*—right of recovery on proof of negligence of one defendant. One may charge negligence generally against several defendants and recover against those who are proven to have been negligent; so that it is not erroneous to permit recovery where on of two defendants was dismissed without amending the declaration.
    '3. Municipal corporations, § 1063*—contributory negligence. In an action by a pedestrian for injuries resulting from a fall on a defective sidewalk, the fact that he knew that the walk was defective and could have gone another way does not preclude recovery, as the act of walking on the defective sidewalk is not negligence per se, but merely a circumstance to be considered by the jury, inter alia, in determining whether he was guilty of contributory negligence.

      4. Municipal corporations, § 1064

      —effect of failure of pedestrian to take different course. The fact that a pedestrian might have reached his destination by a route other than that over a defective sidewalk is not negligence per se, hut merely a circumstance to be considered by the jury in passing upon the question of contributory negligence.
    5. Municipal corporations, § 1060*—care required in using defective sidewalk. All that the law requires of one walking upon a public sidewalk with the knowledge of its defects,'and that there is another way that he could travel upon, is that he should exercise ordinary care for his own safety.
    6. Municipal corporations, § 1225*—sufficiency of notice of claim or injury. In an action against a city for personal injuries by reason of a defective sidewalk where the plaintiff, in front of his residence, met the city clerk on his way to the city hall and handed a statement of injuries to him, who carried the notice to his office in the city hall and had it there in the presence of the city attorney, and the plaintiff later called upon the clerk in his office upon the subject, it constituted a sufficient filing of the statement of injury, under the statute, immediately upon its reaching the city clerk’s office.
    7.. Municipal corporations, § 1098*—sufficiency of evidence. Where it appeared that a pedestrian had attempted to step over a hole or a broken place in a sidewalk and slipped because the walk was wet from rain and caught his toe in the hole and was thrown, evidence held .sufficient to support recovery for injuries received, the jury’s verdict being conclusive of the absence of contributory negligence.
    8. Municipal corporations, § 1001*—when evidence sufficient to show control or possession of sidewalk and driveway. Where a sidewalk and driveway, constructed on private property, had for fifteen years extended up a hill upon which from sixteen to twenty-five families lived, and where there was a public school and the street and alley commissioners of the city did work upon the walk before and after the accident in question, and the city had paid for repairs on the walk a few months before, evidence held sufficient to show that it was treated and permitted to be used as a public walk and driveway.
    Appeal from the Circuit- Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the - April term, 1914.
    Affirmed.
    Opinion filed October 13, 1914.
    H. M. Kelly, for appellant.

      Browne & Wiley and Stead, Woodward & Hibbs, 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. Justice Dibell

delivered the opinion of the court. •

Bthelbert C. Richmond fell because of a defective sidewalk in the City of Marseilles and struck against a rock embankment and was injured, and brought this suit against the City of Marseilles and Simon T. Osgood and filed a declaration, in which he sought to recover damages for said injuries. Thereafter, a demurrer by the City to an amended declaration was sustained, and plaintiff elected to abide by his amended declaration, and there was a judgment in favor of the City of Marseilles. The suit was afterwards dismissed as to Osgood. Plaintiff sued out a writ of error from this court. We held the second count of the amended declaration sufficient and reversed and remanded the cause. Richmond v. City of Marseilles, 154 Ill. App. 345. Thereafter the general issue was filed by the City and the cause was tried and there was a verdict and a judgment for plaintiff for $948, from which the City appeals.

It is first contended that there can be no recovery against the City because the sidewalk is not upon a public street. The sidewalk went up Osgood Hill from the valley to the top of the hill and there were from sixteen to twenty-five families who lived upon the hill and there was a public school there. The sidewalk had been there about fifteen years and was used as a public way, and it was adjacent to a driveway up said hill, also used as a public way. The proof was that it was used by the public generally as a public street and sidewalk. The street and alley commissioners of the City did work upon this walk both before and after Richmond was hurt. Before this accident a man employed by the City was seen working upon the walk. A witness notified the mayor of holes in the walk two or three, months before this accident and the mayor directed him to repair it and put in his bill to the City, and he did so and the City paid the bill. This walk and this driveway were on private property. A city is liable for injuries resulting from defective sidewalks constructed on private property, if they are treated by the city as public walks and permitted to be used as such. City of Chicago v. Baker, 195 Ill. 54.

- Although Osgood had been dismissed, the second count was not amended. It charged negligence against both the City and Osgood. No attempt was made to prove what relation Osgood bore to this sidewalk. It is contended that having averred negligence by both it was essential to a recovery against the City that the negligence of both be proven. The cases relied upon are where the declaration charged negligence by one defendant in one respect and negligence by another defendant in another respect, and that the two acts of negligence concurred in producing the result. There are no such allegations in this declaration. It is familiar law that one may charge negligence generally against several defendants and recover against those who are proven to have been negligent. The rule contended for by appellant would defeat every action for negligence against more than one defendant, unless the proof showed each defendant negligent.

It is contended that appellee cannot recover because of a variance between the allegations of the second count and the proof as to the exact nature of the break or defect in the sidewalk, which caused the fall. The second count avers that the City and Osgood negligently suffered the same to be and remain in a dangerous and unsafe condition and repair, and negligently permitted a place to be and remain in said sidewalk, at a place definitely located therein by distances from other objects, in a broken, defective, unsecure, unsafe and dangerous condition, rendering said sidewalk at said place unsafe and dangerous for foot passengers, and that the defendants knew thereof, or by the exercise of ordinary care might have known thereof, and that, as plaintiff was passing along said walk in the nighttime, in the exercise of all due care, he stepped upon said broken, defective, unsafe and dangerous place in the walk and unavoidably broke through it with his left foot and leg and was thrown violently, etc. Numerous witnesses saw and testified concerning this defect and they did not all describe it alike, and witnesses for the City, who came there a week later, gave a different description from that given by plaintiff’s witnesses. It is clear that there was a hole or broken place in the sidewalk and, as plaintiff was stepping over it, he slipped because it was raining and the walk was wet, and he caught his toe in the hole and was thrown. We are of the opinion that the allegations of the second count were sufficient to support a recovery, no matter which description of the broken sidewalk is accepted as most strictly correct, under the principles laid down in City of Joliet v. Johnson, 177 Ill. 178; Guianios v. DeCamp Coal Min. Co., 242 Ill. 278, and many other cases.

The proof shows that plaintiff knew the walk was defective and that he could have gone another way. It is urged that for that reason he cannot recover. It is held in City of Mattoon v. Faller, 217 Ill. 273, that where one knows of a defect in a sidewalk and walks thereon, that act is not negligence per se, but is a circumstance to be considered by the jury with all the other circumstances in determining whether he was guilty of contributory negligence, and that the fact that he might have reached his destination by another route is not evidence of negligence per se, but is merely another circumstance to be considered by the jury in determining the question of contributory negligence; and that all the law requires of one walking upon a public sidewalk with knowledge of its defects, and that there is another way which he could travel upon, is that he shall exercise ordinary care for his own safety. Wallace v. City of Farmington, 231 Ill. 232. Under the evidence the verdict of the jury means that plaintiff was in the exercise of due care as he went upon this sidewalk and sought to step over this defect, and we see no reason to disturb that conclusion.

The statute requires a party about to bring an action against a city for a personal injury to file a statement in writing in the office of the city clerk. It is contended that this provision was not complied with by plaintiff. Plaintiff met the city clerk in front of plaintiff’s residence as the clerk was on his way to the city hall, where his office was, and he handed the notice to the clerk there on the street and the clerk carried it with him to the city hall at once and had it there in the presence of the city attorney, and the plaintiff later called upon the. clerk in his office upon the subject. We think this ought to be treated as a sufficient compliance with the statute, under the principles laid down in Donaldson v. Village of Dieterich, 247 Ill. 522. Plaintiff had no power to file the statement. That must necessarily be the act of the clerk. Plaintiff could only hand it to the clerk. Plaintiff did not hand it to the clerk in the office but he handed it tó the clerk when the latter was on his way to the office, and the clerk carried it to the office, and when it had reached the office plaintiff’s duty in that respect was at an end. We do not think that plaintiff should be defeated because the clerk carried the paper instead of its being carried by the plaintiff. We think the form of the statement a sufficient compliance with the statute:

' We think the instructions not subject to the criticisms made upon them, for the reasons hereinabove stated. It is not argued that the damages are excessive. The judgment is affirmed.

Affirmed'.


text:
    Richardson Silk Company, Appellee, v. D. Raymond Mead, Appellant.
    Gen. No. 5,914.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Estoppel, § 82

      —effect of silence and acquiescence as to title. Where plaintiff placed silk cabinets with a customer on consignment to be used by the customer as long as he continued to buy silk of plaintiff, and such customer sold his store to another and plaintiff acquiesced in the sale, and the purchaser transferred the store to the defendant who paid for the store and sold the cabinets in question, in an action to recover the full value of the cabinets, held that he could not maintain the action for the full contract price.
    2. Sales, § 221*—when purchaser from buyer not liable for price. Where a party placed goods in a store with a customer on consignment and acquiesced in the sale of a store to another, he cannot thus' ratify the sale and reject the payment for the goods in question by still another purchaser so as to recover from such other purchaser when .the goods were sold by him.
    3. Assumpsit, action of, § 5*—effect of action as waiving tort. Where goods on consignment are- sold by the consignee the tort is waived by a suit in assumpsit.
    Appeal from the County Court of Winnebago county; the Hon. Louis M. Reckhow, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed with finding of facts.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action in assumpsit by Richardson Silk Company against D. Raymond Mead to recover $206 as the purchase price of two silk cabinets. From a verdict and judgment for $25, defendant appeals.
    Fisher & North, for appellant.
    No appearance for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Joseph Dux v. Marion D. Rumsey et al. White City Electric Company, Appellant, v. Marion D. Rumsey et al., Appellees.
    Gen. No. 5,927.
    Mechanic's liens, § 136

      —consideration for agreement waiving right to lien. Where a provision in a subcontract waives the subcontractor’s right to lien “for the consideration hereinafter named” and is followed by a provision that the contractor shall pay to the subcontractor a certain sum for the work done and that .the latter shall indemnify the former against liability for any liens or claims arising from its default in the work, held that the consideration for the agreement was the promise of the contractor to pay ■the subcontractor, whether the promise was fulfilled or not, and could not be construed to be that the subcontractor should be paid in full, so that in case it was not so paid the consideration for the agreement failed.
    Whitney, J., took no part in this decision.
    Appeal from the Circuit Court of Lake county; the Hon. Chables Whitney, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 13, 1914.
    Silber, Isaacs, Silber & Woley, for appellant; James D. Woley, of counsel.
    Sheriff, Dent, Dobyns & Freeman and Sam S. Holmes, for appellees.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Marion D. Eumsey, owner of certain real estate in ■Lake county, by her husband, Henry A. Eumsey, entered into a written contract with the Warren Construction Company for the erection of a dwelling house and other improvements on said premises. The Warren Construction Company made a subcontract with the White City Electric Company to do certain electrieal work, required by said original contract, for a certain consideration therein named. Afterwards, the Warren Construction Company became bankrupt and failed to complete its contract. Afterwards, Joseph Dux, a subcontractor upon said work, filed a bill in the Circuit .Court for a mechanic’s lien, making all parties in interest defendants. Thereafter the White City Electric Company filed an amended answer in the nature of a cross-petition for a mechanic’s lien upon said premises for $1,094.91. The court sustained a demurrer by Marion D. and Henry A. Eumsey to said answer. The White City Electric Company elected to abide by its said answer and cross-petition and the same was dismissed for want of equity, and it prosecuted this appeal from said decree.

The original contract contained the following provision :

‘ ‘ The party of the second part, before any payment is made or shall be considered to be due to him under this contract, shall satisfy the party of the first part, by receipts or written waivers of liens by sub-contractors and material men, that the said building is free and unincumbered of and from any and all claims and liens of mechanics, laborers or material men and shall produce and give to the parties of the first part such reasonable and proper protection as may be required, against all future liens and claims of like nature.”

The subcontract between the White City Electric Company and the Warren Construction Company contained the following provision:

“Eighth: The sub-contractor hereby, for the consideration hereinafter named, waives, and releases all lien or right of lien now existing or that may hereafter arise for work or labor performed or material furnished under this contract under any lien laws upon said building, the land upon which the same is situated and upon any money or moneys due or to become due from any person or persons to said contractor, and agrees to furnish a good and sufficient waiver of lien on said premises from every person or persons and corporation furnishing labor or material for said premises under the sub-contractor.”

The tenth paragraph of said contract provided that the contractor should pay to said subcontractor $1,600 for the work to be done under said subcontract. It also contained the following provision:

“If at any time there shall be evidence of any lien or claim for which, if established, the contractor or the said premises might become liable, and which is chargeable to the subcontractor, the contractor shall have the right to retain out of any payment then due or thereafter to become due an amount sufficient to completely indemnify the contractor against such lien or claim. Should there prove to be any such claim after all payments are made, the sub-contractor shall refund to the.contractor all moneys that the latter may be compelled to pay in discharging any lien on said premises made obligatory in consequence of the subcontractor’s default.”

It is the contention of the owner that by the provisions of said eighth section of the subcontract all right of the subcontractor to a lien upon the premises is waived, and that the words, “the consideration hereinafter named,” in said section 8 means that the consideration for said eighth clause is the promise by the contractor to pay $1,600 to the subcontractor. It is the contention of the subcontractor that under the provisions above quoted from the tenth section of the contract, the consideration for waiving the lien is that the subcontractor shall be paid in full, and that, as the subcontractor was not paid, the consideration for the waiver of the lien has failed, and the subcontractor is entitled to a lien, notwithstanding the eighth clause.

When parties insert into a carefully prepared contract between them provisions like section 8 of this subcontract, a reasonable interpretation of the contract requires the courts to presume that some purpose was intended to be accomplished by such provision. If the construction contended for by the subcontractor here is sustained, it makes the subcontract mean that the subcontractor waives his lien in case he is paid in full. The law gives him no lien if he is paid in full. Therefore the proposed construction deprives section 8 of said contract of all meaning and leaves the contract as it would be if that section had never been written into it. We are of opinion that the intention of the parties in inserting the eighth section was to absolutely waive any lien in behalf of the subcontractor. In causing the eighth section to be inserted the contractor was arranging for the written waiver of lien provided for in the clause above quoted from the original contract. We conclude that the consideration referred to in said eighth paragraph was not payment in full to the subcontractor, but the promise of the contractor to pay the subcontractor, and that the waiver is effective whether that promise was fulfilled or not. By no other construction of the subcontract can the eighth section thereof be given any force and meaning whatever.

The decree is therefore affirmed.

Affirmed.

Mr. Justice Whitney took no part in this decision.


text:
    Joseph Dux v. Marion D. Rumsey et al. James A. Miller. & Brother, Appellants, v. Marion D. Rumsey et al., Appellees.
    Gen. No. 5,928.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Lake county; the Hon. Charles Whitney, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    This case is substantially the same as Dux v. Rumsey, ante, p. 234. Appellants were subcontractors and filed an amended answer in the nature of a cross-bill in the same proceeding. The decision filed in the above mentioned case held controlling.
    Whitney, J., took no part in this decision.
    Silber, Isaacs, Silber & Woley, for appellants; James D. Woley, of counsel.
    Sheriff, Dent, Dobyns & Freeman and Sam S. Holmes, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Peter Fippinger, Appellant, v. Henry F. Glos, AppeUee.
    Gen. No. 5,932.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Du Page county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by Peter Fippinger against Henry F. Glos to recover for personal injuries sustained by plaintiff by reason of a horse which plaintiff was driving becoming frightened at defendant’s auto truck, which plaintiff claims was being driven at excessive speed. To reverse a judgment in favor of defendant, plaintiff appeals.
    Charles W. Hadley, for appellant; John W. Leidle, of counsel.

      Abstract of the Decision.
    1. Damages, § 178

      —when expert evidence as to cause of physical condition competent. In an action for personal injuries, physicians may be permitted to testify for defendant what in their opinion could have produced the conditions which plaintiff claimed to be suffering from after the accident.
    2. Automobiles and gabages, § 3*—when proof of experiments as to speed of motor vehicles competent. Proof of experiments made by experts as to the speed at which defendant’s auto truck could be driven, held competent on behalf of defendant without proof that the conditions were identically the same, where it was practically impossible to produce the exact conditions owing to the fact that defendant was not served with process until more than nine months after the accident.
    3. Automobiles -and gabages, § 3*—when declaration insufficient to warrant instruction in language of statute. A count in a declaration charging that defendant drove his motor truck at “a high, excessive, unreasonable and dangerous rate of speed, to-wit, at the rate of 30 miles per hour,” held, by reason of the videlicet, not to .charge that the vehicle was being driven at' any particular number of miles per hour, and therefore not to justify an instruction that running a motor vehicle at a speed of more than twenty miles per hour was prima facie evidence that the rate of speed was greater than was reasonable and proper under section 10 of the Motor Vehicle Act of 1911, J. & A. j[ 10,010.
    4. Negligence, § 223*—sufficiency of instruction defining proximate cause. A requested instruction defining “proximate cause” as a cause “without an intervening or efficient cause,” held to be less likely to be understood than the words “proximate cause” themselves.
    Cornelius E. Adams, for appellee.

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

   Mr. Justice Dibell

delivered the opinion of the court.


text:
    Mamie Thompson, Appellee, v. Chicago, Ottawa & Peoria Railway Company, Appellant.
    Gen. No. 5,945.
    (Not to he reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Edgab Eldbedge, Judge, presiding. Heard in this court at the April term, 1914.
    Reversed and remanded.-
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by Mamie Thompson against the Chicago, Ottawa & Peoria Railway Company for personal injuries sustained by plaintiff in a collision between a vehicle in which she was riding and one of defendant’s cars at a highway crossing. The evidence showed that when the accident happened, which was in the nighttime, the plaintiff and her sister and the latter’s children were riding in a surrey driven' by her sister’s husband. The negligence charged was that the defendant negligently ran its car over said highway at a rapid rate of speed and also failed to ring a bell or sound a whistle, and also charged that the defendant negligently failed to keep a proper lookout. Defendant pleaded not guilty and there was a jury trial and a verdict awarding plaintiff five thousand dollars damages. Motions for a new trial and in arrest of judgment were denied and judgment entered on the verdict. To reverse the judgment, defendant appeals.
    Duncan, Doyle & O’Conor, for appellant.
    D. R. Anderson and Butters & Armstrong, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Abstract of the Decision.

1. Railroads, § 733*—when evidence insufficient to show negligence in operating car at highway crossing. In an action against an interurban electric railway company to recover for personal injuries sustained by plaintiff in a collision between a vehicle in which she was riding and one of defendant’s cars at a highway crossing, held that the preponderance of the evidence did not support the charges of negligence that defendant was running the car at excessive speed, or that it failed to blow the whistle on approaching the crossing, nor support any other charge of negligence in the operation of the car.

2. Railroads, § 607*—care on approaching highway crossings. In the operation of railway trains the demands and necessities of the traveling public are such that it is not required of railway companies to bring their cars to a stop or to a low speed on approaching highway crossings so that those driving on the highway and seeing the train approaching may pass over ahead of the train; on the contrary, those in charge of the train, with a proper headlight in the nighttime and after giving the customary signal, have the right to assume that a team approaching the crossing will stop before it reaches it and wait for the train to go by.


author: Mr. Justice Dibell,

text:
    P. H. McCormick, Defendant in Error, v. Frank M. Higgins and Cora Higgins, Plaintiffs in Error.
    Gen. No. 5,948.
    1. Appeal and error, § 1069

      -—joinder in error. The filing of briefs and arguing a cause upon the merits are equivalent to a formal joinder in error.
    2. Appeal and error, § 1074*—effect of .failure to join in error. The Practice Act of 1907 (Hurd’s R. S. 1913, ch. 110, § 108, J. & A. V 8645) requires a case to be treated as if error had been joined, where error has been assigned and the opposite party does not plead in proper time.
    3. Appeal and error, § 1073*—effect of joinder in error. A joinder in error does not bar pleas, but on the contrary, pleas prevent a subsequent joinder in error.

      4. Appeal and ebbob, § 1078

      —effect of joinder in error. A joinder in error to an error assigned is, in effect, a demurrer to such assignment.
    5. Appeal and ebbob, § 1145*—when pleas constitute abandonment of joinder in error. The subsequent filing of pleas in legal effect constitutes an abandonment of a joinder in error to the assignments to which the pleas are directed.
    6. Appeal and ebbob, § 1783*—what constitutes confession of errors. Where pleas in bar are filed to a writ of error and the pleas are not sustained as bad in law upon demurrer, or as not supported by proof upon trial, they confess the errors assigned, and the judgment or decree must be reversed, whether the supposed errors assigned do in fact exist upon the record or not, and the court which' finds the pleas insufficient will not consider whether the errors are justly assigned or not; and, on the other hand, if the pleas are sustained, the judgment or decree must be affirmed.
    7. Appeal and ebbob, § 1783*—effect of plea of release of errors. Under the Practice Act of 1907 (Hurd’s R. S. 1913, ch. 110, § 109, J. & A. If 8646), as an exception to the general rule, a plea of release of errors adjudged bad or not sustained does not deprive the defendant of the right to join in error.
    8. Appeal and ebbob, § 1145*—pleading to writ of error. Whatever the rule may have been at ancient common law or in other jurisdictions, the practice in this State permits several pleas and several replications to pleas to be made .to a writ of error.
    9. Appeal and ebbob, § 1145*—power to allow additional pleas to writ of error. As more than one plea can be filed to assignments of error, and as amended pleas can be filed thereto by leave of court, it follows, that power exists in the court to permit additional pleas to be filed.
    10. Judgment, § 281*—when statutory limitation against vacating decrees begins to run. A decree in a foreclosure suit against one served by publication is not final, and the statute of limitations does not begin to run until either one or three years after the entry of the decree, depending upon whether defendant received the notice required tó be sent him by mail, since a defendant or his successor in interest may within one year after notice in writing given him of such decree, or within three years after such decree, if ho such notice has been given him, appear and be heard and permitted to answer.
    11. Appeal and ebbob, § 625*—statutory limitations for writ of error. Where pleas are treated as admitting that a defendant did not receive written notice of a decree of foreclosure, the decree was not final until three years thereafter, and the Practice Act of 1872, as amended in 1877, § 85, gave them five years within which to .sue out a writ of error, or eight years in all, and constituted a bar in the case in question.
    12. Appeal and error, § 625

      —statutory limitations for writ of error. Under the Practice Act of 1907 (Hurd’s R. S. 1913, eh. 110, § 117, J. & A. f 8654), three years is fixed as the limit for suing out a writ of error, except where the defendant is an infant, non compos mentis or under duress, when a decree is entered.
    13. Pleading, § 11*—when allegation of certain length of time ineludes smaller length of time. A plea that a certain thing was not done within eight years before a certain date, includes an allegation that it was not within four or six years before that date, in determining a statutory bar to a suit.
    14. Appeal and error, § 1070*—effect of a good plea to assignment of error. One good defense defeats an action, so that if one plea is good the assignments of error to which such plea is directed are defeated.
    15. Judgment, § 252*—when record may be corrected after the term. Where an order of service in a suit for foreclosure showed defendants to be residents of “Geneva Lake, Wisconsin,” and the affidavit of nonresidence stated that defendants resided in the city of “Lake Geneva” in said State, held that the court had jurisdiction to amend the order to correspond with the affidavit after the expiration of the term and after a writ of error was barred by the statute of limitations.
    16. Mortgages, § 393*—when debt becomes due. Where a mortgage, given to secure a note due five years after date with interest at six per cent, per annum until paid, provided that if default be made in the payment of interest on the note at any time the whole principal and interest should become due at the option of the mortgagee, held, upon such default in the payment of interest, a bill to foreclose would properly lie after the expiration of a year, although nothing in the note standing alone indicated that it had fallen due.
    17. Notaries, § 8*—effect of failure to file memorandum of appointment. Where an affidavit of nonresidence of defendants was sworn to before a notary public before a memorandum of his appointment had been entered in the office of the county clerk, as required by statute (Hurd’s R. S. 1913, ch. 99, § 5, J. & A. 7841), held the notary’s failure thus to comply with the statute did not go to the validity of the foreclosure in question.
    18. Pleading, § 321*—verification before an attorney. While the practice of verifying papers in a cause before a notary public who is an attorney therein is disapproved, yet it is not reversible error.

      19. Affidavits, § 3

      —validity of oath administered by solicitor. Where a decree of foreclosure allowed a solicitor’s fee, pursuant to a mortgage, and it was sought to set aside the decree over eight years after it was entered on the ground' that the solicitor, was, by reason of his fee, such a party in interest as to invalidate the affidavit sworn to before him upon which the decree by publication was based, held the attacks upon the affidavit would not he sustained, as the entire sum was directed to be paid to complainant, and the right of the solicitor to his fee depended upon his contract with his client and not upon the provisions of the mortgage.
    20. Evidence, § 16*—judicial notice of location of city. The court will take judicial notice that a city named is in a certain county of the State.
    21. Newspapers, § 1*—what constitutes. Where a publication is called in the certificate of publication the “Weekly Fair Dealer,” and the service order finds that it is a paper of general circulation published in a certain city, it is sufficiently designated as a newspaper to satisfy the statute.
    22. Notice, § 58*—when finding sufficient to show publication 'in proper county. A finding that a newspaper is published in a certain county is sufficient to show that it was “printed” in such county, as its publication satisfies the spirit of the requirements of the statute.
    23. Mortgages, § 375*—grounds for strict foreclosure. Where mortgaged premises are worth no more than the mortgage debt •and the debtor is insolvent, and the creditor is willing to take the property in satisfaction of the debt and the costs, it is proper to decree a strict foreclosure.
    • 24. Mortgages, § 375*—evidence warranting strict foreclosure. Evidence held sufficient to warrant a decree of strict foreclosure.
    25. . Mortgages, § 71*—merger of oral agreement in writing. At the time of giving a note and mortgage to secure it, oral and contemporaneous arrangements are merged in the papers, which the parties execute.
    26. Mortgages, § 375*—evidence insufficient to open decree of strict foreclosure. Evidence held insufficient upon the merits to open up a decree of strict foreclosure eight years after rendition.
    Error to the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1914.
    Affirmed.
    Opinion filed October 13, 1914.
    Certiorari denied by Supreme Court (making opinion final).
    Butters & Clark, for plaintiffs in error.

      H. M. Kelley, for defendant in error.

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

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

      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 Dibell,

delivered the opinion of the court.

On May 5, 1904, Frank M. Higgins and Cora, his wife, executed and delivered to P. H. McCormick a mortgage on an undivided one-eleventh of certain pieces of real estate in LaSalle county, Illinois, to secure the payment of a note for the principal sum of $1,622.33, and the same was duly recorded. Thereafter on July 29, 1905, McCormick filed against Higgins' and his wife, Cora, a bill in the Circuit Court of LaSalle county for a strict foreclosure of said mortgage, it being charged that Higgins was in default in the payment of interest and that the mortgaged property had thereby become defaulted and that the property was scant security for the debt and that Higgins was financially unable to pay the debt, and that in the undivided condition of the property the value of the property mortgaged was wholly insufficient to pay the debt and costs. There was service upon the defendants by publication and by mailing of notice, and certificates of publication and of mailing of notice were filed in the cause. There was also filed a summons for the defendants to the sheriff of LaSalle county, with his return thereon that said defendants were not found in his county. On October 12,1905, at the return term, an order was entered finding service and jurisdiction, and entering the default of the defendants, and taking the bill as confessed and referring the cause to the master to report proofs and findings. Thereafter the master filed a report of proofs taken before him and of his findings therefrom, and including the finding of default in the payment of interest, and that the whole sum secured by the note was due, and finding the amount due ; and that Higgins, the maker of the note, was insolvent, and that the mortgaged property was scant security for the amount due, and that a- decree of strict foreclosure should be entered. On October 20, 1905, a final decree was entered, finding due the complainant, including solicitor’s fees, $1,863.47, and that McCormick was willing to take the premises in full satisfaction of the amount due. on the note and the costs; and decreeing that if the said sum with interest and costs be paid within ninety days, McCormick should reconvey the premises to Higgins and discharge the mortgage of record, but that in default of his paying that sum within that time, the defendants be barred and foreclosed of all equity of redemption, and that McCormick then be let into possession of the premises. On February 19, 1906, McCormick filed in said cause a petition stating that the time had elapsed and that no payment had been made and that he had paid the costs, and asking that an order be entered barring defendants of all right in the property; and on that day there was a hearing and a supplemental order or decree finding the facts and barring Higgins and his wife of any right in the premises, and bestowing full title upon McCormick the same as though conveyed to him by a proper deed by Higgins.

On January 31, 1914, McCormick filed in said cause a motion to redocket the cause and to amend the order of service of October 12, 1905, in the particulars set out in said motion, and he proved due service of notice of said motion upon Higgins and wife, and they appeared by their solicitor and moved the court to set aside the default and all orders, decrees and proceedings entered in said cause. Both motions were thereupon heard upon proofs presented, and afterwards on February 19, 1914, the motion to amend the service order was granted, and the motion to vacate the default and orders and decrees in the cause was denied, and Higgins and wife obtained a certificate of the evidence produced at that hearing.

Thereafter on April 7, 1914, Higgins and wife filed in this court a complete record of said cause, with thirteen assignments of error thereon, and on the same day McCormick filed his appearance in writing’ in this court in said cause. The cause has been treated as if a writ of error issued from this court on April 7, 1914, but, in fact, no writ of error was issued, but the record filed on that date was treated as equivalent to a return to a writ of error. It is stated in a typewritten brief for Higgins that McCormick filed a joinder in error on April 7th, but this is a mistake. What he filed was an entry of appearance and a waiver of service of process, which process would have been a scire facias to hear errors assigned. On April 9th, by leave of court, Higgins and wife filed briefs instanter. McCormick filed briefs on April 18, 1914. The case was submitted on briefs and oral arguments on April 29th. The briefs for McCormick raised the defense of the statute of limitations, but at that time he had no plea on file presenting that defense. On May 7th, he asked leave to withdraw such parts of his brief as purported to answer the third, fourth, fifth, sixth, seventh, tenth and eleventh assignments of error and to file instanter a plea or pleas of the statute of limitations as to said assignments of error. That motion was granted, and he filed two pleas to said assignments of error. Plaintiffs in error filed a demurrer to said-pleas, and on their motion we heard oral arguments upon said demurrer on May 21st. Defendant in error then entered his motion to amend said two pleas by striking out the word “three’’before the word “years” wherever that occurred in said pleas, and inserting the word “five.” We denied the motion for leave to so amend said pleas, but granted leave to file additional pleas by the following Monday, and defendant in error did file additional pleas to the same assignments of error; and on motion of plaintiffs in error their demurrer on file was ordered to stand to said additional pleas. The cause was submitted on the demurrer. This was all at the April term. Thereafter on July 31, 1914, in vacation, plaintiffs in error entered their motion for leave to withdraw their demurrers as to said additional pleas, and to vacate and set aside the order granting leave to file said additional pleas, and moved to strike said additional pleas from the files and to reverse the decree; and said motion was argued by each side upon typewritten briefs. It is contended by plaintiffs in error that nothing was due upon the note when the bill to foreclose was filed and that that fact appeared on the face of the papers; that the affidavit for publication was insufficient to confer jurisdiction because it was sworn to before a notary public, a memorandum of whose appointment had not been entered with the county clerk, and because he was a solicitor in the cause; that the order of service was insufficient; that-the proof before the master did not show sufficient to authorize a decree of strict foreclosure; that the court had no jurisdiction in 1914 to amend the service order; that the proofs were insufficient to authorize the amendment which the court then made; and that under the proofs then presented by plaintiffs in error, the decree should have been vacated. It is also contended by plaintiffs in error that in a court of appeal the court has no power to permit more than one plea to be filed to a writ of error, nor to permit any plea to be filed after joinder in error unless the latter is withdrawn; that where two pleas have been filed and demurred to, the court has no power before deciding the demurrer to them to permit them to be amended or to permit additional pleas to be filed; that the additional pleas must therefore be stricken from the files; that the two pleas first filed are insufficient, and that therefore the assignments of error to which said first two pleas were directed are confessed, and a reversal must follow.

The pleas were in bar of assignments of error Nos. 3, 4, 5, 6, 7, 10 and 11. The third assignment of error assailed the action of the Circuit Court in entering the original decree; the fourth, the finding of jurisdiction and entering of the default; the fifth, the finding that the defendants were in default in paying either interest or principal on the note; the sixth assignment was that the decree confirming the master’s report and ordering a strict foreclosure was not supported by the evidence; the seventh, that said decree is contrary to law; the tenth, that the decree was without notice to the defendants, and is contrary to law, and is not supported by the competent evidence, and is contrary to equity and is unconscionable; the eleventh, that the court erred in confirming the master’s report because entered without notice to the defendants and without notice of the hearing before the master.

Plaintiffs in error contend that defendant in error could not plead because he had not withdrawn his joinder in error. There was no formal joinder in error, but he filed briefs upon the merits and argued the cause upon the merits. This was equivalent to a formal joinder in error. De Beukelaer v. People, 25 Ill. App. 460; Ferrias v. People 71 Ill. App. 559; People v. Rudorf, 149 Ill. App. 215. But these rulings are in reality based upon section 79 of the Practice Act of 1872 (J. & A. ^ 8645), and section 108 of the Practice Act of 1907 (J. & A. 8645), which require the case to be treated as if error has been joined if the opposite party does not plead in proper time. If the defendant in error could not file pleas without leave of court, he obtained such leave of court; and this was a proper exercise of discretion, for his briefs showed that he in fact relied upon the statute of limitations as a defense to the assignments of errors above recited. A joinder in error does not bar pleas, but, on the contrary, pleas- prevent a subsequent joinder in error. A joinder in error to an error assigned is in effect a demurrer to such assignment. Austin v. Bainter, 40 Ill. 82; Farwell v. Sturges, 165 Ill. 252; Cass v. Duncan, 260 Ill. 228. In asking leave to file pleas to the assignments above specified, plaintiff in error asked leave to withdraw his brief as to those assignments of error. It is insisted that this did not withdraw his joinder in error on those assignments. It was no doubt so intended, but, if not, the filing of the pleas was in legal effect an abandonment of the joinder as to those assignments to which the pleas were directed.

Where pleas in bar are filed to a writ of error and said pleas are not sustained because bad in law upon demurrer, or because not supported by the proofs upon trial, they confess the errors assigned, and the judgment or decree must be reversed, whether the supposed errors assigned do in fact exist upon the record or not, and the court which finds the pleas insufficient will not consider whether the errors are justly assigned or not; and, on the other hand, if the pleas are sustained, the judgment or decree must be affirmed. Austin v. Bainter, supra; Clapp v. Reid, 40 Ill. 121; Ruckman v. Alwood, 44 Ill. 183; Holt v. Rees, 46 Ill. 181; Thornton v. Houtze, 91 Ill. 199; Page v. People, 99 Ill. 418; International Bank of Chicago v. Jenkins, 104 Ill. 143; Mahony v. Mahony, 139 Ill. 14; Beardsley v. Smith, 139 Ill. 290; Martin v. Commissioners of Scotland Tp., 150 Ill. 158; Schaeffer v. Ardery, 238 Ill. 557; Peterson v. Manhattan Life Ins. Co., 244 Ill. 329; George v. George, 250 Ill. 251. There is now one exception to this rule. Under section 109 of the Practice Act of 1907 (J. & A. 8646), a plea of release of errors adjudged bad or not sustained does not deprive the defendant of the right to join in error. Schaeffer v. Ardery, supra; Cass v. Duncan, supra; Lott v. Davis, 262 Ill. 148. It is contended that the court had no power to permit more than one plea to be filed. Whatever the rule may have been at ancient common law or is in other jurisdictions, the practice in this State permits several pleas and several replications to pleas to be filed to a writ of error. Austin v. Bainter, supra; Corwin v. Shoup, 76 Ill. 246; Thornton v. Houtze, supra; Page v. People, supra; Trapp v. Off, 194 Ill. 287; Schaeffer v. Ardery, supra; Lott v. Davis, supra. In Austin v. Bainter, supra, there were two pleas, to which plaintiff in error demurred, but, before the court rendered a judgment upon the demurrer, leave was given defendant in error to file amended pleas. Amended pleas to a writ of error therefore can be filed, and it may well be that defendant in error was entitled to have his motion of May 21st, to amend his pleas, granted, but the same object was accomplished by permitting him to file additional pleas. As more than one plea can be filed to assignments of error, and as amended pleas can be filed thereto by leave of court, it must follow that power exists in the court to permit additional pleas to be filed.

The first plea, after setting out the respective dates when said order of default, decree of foreclosure and decree of confirmation were entered, alleged that plaintiff in error did not sue out this writ of error or assign said specified errors within five years after said orders and decrees were entered. The second plea averred that said alleged errors were committed by the Circuit Court of La Salle county more than five years prior to the suing out of this writ of error, and that the same are barred by the statute of limitations. The first additional plea set out the respective dates of said orders and decrees, namely, October 12, 1905, October 20, 1905 and February 19, 1906, and alleged that plaintiffs did not sue out said writ of error nor assign said errors within six years after said errors are alleged to have been committed, nor within six years after any order or decree on which error is so assigned, nor within six years after February 19, 1906, the date of the last order in said cause. The second additional plea averred that the alleged errors so assigned were committed by the Circuit Court of LaSalle county more than three years before April 7, 1914, the date when plaintiffs in error sued out their writ of error in this court; that plaintiffs in error were not served personally in said cause, but by publication, and that said judgment did not become final until February 19, 1909, and that more than three years from February 19, 1909, elapsed before the suing out of the writ of error in this cause, and that the same was therefore barred by the statute of limitations. The third additional plea averred that the writ of error was issued and the record filed in this cause on April 7, 1914, and it averred the date of the several orders and decrees as before stated on October 12, and 20, 1905, and February 19, 1906, the latter being the final order, and that no other order or decree was thereafter entered in said cause, and that plaintiffs in error did not sue out this writ of error within eight years after errors are alleged to have been committed, or within eight years after any decree upon which error is so assigned, nor within eight years after the final decree in said cause. The fourth additional plea averred that the alleged errors so assigned were committed by the Circuit Court on different dates between October 11, 1905, and February 20,1906, and that on April 7, 1914, when this writ of error was sued out and the record filed, plaintiffs in error were without right to have said assignments of error heard and determined or to have said decree reversed, because the statute of limitations of this State had run and the time had passed within which plaintiffs in error might sue out a writ of error and assign the errors above enumerated.

The reason why it was deemed proper to permit these different pleas to be filed arises from the following considerations: Section 117 of the Practice Act of 1907 (J. & A. 8654) fixes three years as the limit for suing out a writ of error, except where the plaintiff in error is an infant, non compos mentis or under duress, when the same was entered, but the statute in force when the decree was rendered seems to be the one which applies, and the statute then in force was section 85 of the Practice Act of 1872, as amended in 1877, and the limitation to a writ of error was five years from the rendition of the decree or judgment complained of. Moreover, section 19 of the Chancery Act (J. & A. 899) provides that when any final decree is entered against any defendant, who has not been summoned or served with a copy of the bill or received the notice required to be sent him by mail, such defendant or his successors in interest may within one year after notice in writing given him of such decree or within three years after such decree, if no such notice has been given him, appear and be heard and permitted to answer. Under these provisions the decree in the case of one served by publication is not final and the statute of limitations does not begin to run until either one or three years after the entry of the decree, depending upon whether the plaintiff in error received the notice required to be sent him by mail. Lyon v. Robbins, 46 Ill. 276; Sale v. Fike, 54 Ill. 292; Martin v. Gilmore, 72 Ill. 193; Wellington v. Heermans, 110 Ill. 564; Caswell v. Caswell, 120 Ill. 377; Burton v. Perry, 146 Ill. 71. On the hearing in 1914 of the motion by plaintiffs in error in the Circuit Court to vacate the decree, there was evidence tending to show that Higgins did not receive the notice mailed him in 1905, and other evidence tending to show that he did receive it. We assume that the matters shown on that motion in 1914 are not entitled to be considered in determining whether, in passing upon the sufficiency of these pleas, the record shows that plaintiffs in error did or did not receive the notice required to be sent them by mail. We are not aware that those words in section 19 of the Chancery Act have received a. construction by the Supreme Court. This record shows that notice was mailed to them in conformity with the statute. If that is treated as prima facie proof that they received the notice, then the statute of limitations in this case would be five years after October 20, 1906, or six years after the entry of the decree in October 20, 1905, but there is no averment in the pleas that plaintiffs in error did receive the notice mailed them, and if the pleas are to be treated as admitting that they did not receive such notice, thén the decree was not final under the above authorities for three years, and the statute gave them five years thereafter in which to sue out a writ of error, or eight years in all. If, as we hold, the decree of October 20,1905, was the final decree, then the statute became a bar in any event after October 20, 1913. If. the order of confirmation of February 19, 1906, is the final decree, then the writ of error was barred after February 19,1914. In either case it was barred before this writ of error was sued out. We cannot concur in the position of plaintiff in error that if the plea asserts that the writ of error was not brought within a greater number of years than that prescribed by statute then the plea is bad, but concur in the view of that subject stated in Adams Exp. Co. v. King, 3 Ill. App. 316, on the principle that the less is included in the greater, and that a plea that a certain thing was not done within eight years before a certain date includes an allegation that it was not done within four or six years before that date. In their typewritten brief plaintiffs in error contend that this decree did not become final until after the statute of 1907 was in force and therefore the Three-Tear Statute of Limitations is the only one which applies; but we are of opinion that under the authorities above cited, plaintiffs in error had eight years from the entry of the decree of October 20, 1905, in which to sue out a writ of error. The motion to withdraw the demurrer to the additional pleas, and to strike them from the files, and to reverse the decree is denied, and the demurrer is sustained to the first and second pleas and to the first and second additional pleas, and is overruled as to the third and fourth additional pleas. Plaintiffs in error contend that if one plea is bad it confesses the errors assigned to which the plea is directed and the decree must be reversed. We hold, on the contrary, that one good defense defeats the action, and that if one plea is good the assignments of'error to which such plea is directed are thereby defeated. In Corwin v. Shoup, supra, three pleas were filed to a writ of error, and a demurrer was sustained as to the first plea but overruled as to the second and third pleas, and thereupon the judgment was affirmed and the writ of error dismissed. The assignments of error to which these pleas were directed were all the assignments which questioned the original proceedings in 1905 and 1906, and the overruling of the demurrer to the third and fourth additional pleas to said assignments of error must result in an affirmance of these orders and decrees.

The errors assigned, to which no plea was filed, question the action of the court upon the motion by defendant in error to amend the service order and the action of the court upon the motion of plaintiffs in error to set aside the default and all orders and decrees in the cause, which motions were entered on January 31, 1914, and decided on February 19, 1914. The service order found that the affidavit of nonresidence on file showed that the defendants and each of them were residents of “Geneva Lake,” Wisconsin, and that within ten days after the first publication of notice of the pendency of the suit the clerk of the court mailed a copy of said publication to each of said defendants, postage prepaid, properly addressed to said Frank M. Higgins and Cora Higgins at “Geneva Lake,” Wisconsin. In fact the affidavit of nonresidence on file among the papers in said cause, and filed on the same day that the bill to foreclose was filed, stated that said defendants resided “in the city of Lake Geneva, in the County of Walworth and State of Wisconsin,” and that the post office address of each of them was “Lake Geneva, County of Walworth and State of Wisconsin,” and the certificate of the publisher showed that the first publication of notice was on August 4, 1905, and the certificate of the clerk showed that on August 5, 1905, he sent by mail, postage prepaid, a copy of said notice to “Frank M. Higgins, Lake Geneva, County of Walworth, Wisconsin,” and to “Cora Higgins, Lake Geneva, County of Walworth, Wisconsin.” The sole object of the proposed amendment of the service order was to change the words “Geneva Lake” to “Lake Geneva.” The jurisdiction of the court to amend at a later term in a matter of form is sustained in Channel v. Merrifield, 206 Ill. 278, and many other cases, and is authorized by statute. We doubt if the amendment was essential. There is no claim that in Walworth county, Wisconsin, there are two places and post offices, one named “Lake Geneva” and the other named “Geneva Lake.” It is held in Turner’s Adm’r v. Patton, 49 Ala. 406, that the courts will take judicial notice of the post roads and post offices of the United States. Where a court may take judicial notice the judges thereof may also resort to any available source of information where the personal knowledge of the judge's needs such assistance. From such sources it seems to be the fact that there was in 1905 and still is in Walworth county, Wisconsin, a post office named “Lake Geneva,” and that there was not then and is not now in that county or State a post office named “Geneva Lake,” and further that under the practice prevailing in the post office department a letter duly stamped and mailed, addressed to a person at “Geneva Lake, Wisconsin,” would be sent to “Lake Geneva, Wisconsin.” But Malaer v. Damron, 31 Ill. App. 572, holds that the courts will not take judicial notice that a post office is established at a particular place. Even if we follow that rule, we do not think the mere transposition of the two words of a name should have the effect here contended for. Suppose a notice had been duly mailed to a defendant addressed to him at New York City, New York State. Could it be supposed that the proceedings would be in anyway invalidated if it appeared that the leg'al name is “The City of New York”? We think not. The affidavit and certificate on file and therefore a part of the record, authorized the amendment, and this, notwithstanding the order was entered by a judge now deceased. The order amending the service order must therefore be affirmed.

In our opinion the motion by plaintiffs in error made January 31,1914, to set aside the default and all orders and decrees in the cause, comes too late. The decree of October 20, 1905, was a final decree and established the rights of the complainant against the defendants. It was so held in Ellis v. Leek, 127 Ill. 60, where a like decree was under consideration, and the cases are there reviewed. The order of February 19, 1906, repeated some provisions of the decree of October 20, 1905, but this was unnecessary. As already shown, the statute of limitations ran against a writ of error to question that decree in eight years thereafter, under the most favorable construction of the statutes governing that question. That eight years expired on October 20, 1913, and this motion was after that date. If these matters set up in the court below by defendants in error could be heard on mere motion, still we would be of opinion that the same limitation applies to an effort to question the decree by motion as it would be by a writ of error, or that by analogy to the statute of limitations the right to have the court consider such a motion is barred by laches. On February 19, 1906, the court did enter an order finding that defendants had not paid the amount fixed by the decree within the time given them therein in which to pay it. Bight years from that date had not expired when this motion was interposed, and if defendants in error were seeking to show that they paid said decree within said ninety days, it may well be that they could question that last order by a proper bill in equity, but they offered no proof having any tendency to show that they have ever paid anything upon said decree. We therefore conclude that the statute of limitations or laches deprived the court of any authority to entertain or grant said motion, interposed in 1914, even if these matters could be raised by motion after the term. We are further of opinion that what is here sought to be done could not in any event be accomplished after the term by. mere motion, but only by a writ of error or bill in equity. In Ernst Tosetti Brewing Co. v. Koehler, 200 Ill. 369, a decree was entered at the May term. At the October term the defendant moved to vacate said decree, and supported that motion by affidavits to the effect that the solicitor for complainant had by misrepresentation and fraud procured the court to enter said decree. The trial court vacated said decree, and afterwards entered a decree for defendant at a still later term. The Supreme Court held that the court erred in vacating the original decree at a later term; that after the term the decree could be corrected on motion in matters of form and as to clerical errors, but that the court was without power at that later term to set aside, vacáte, modify or annul said decree. ■ The court there said: “No error of law of any kind will justify revising or annulling a decree at a subsequent term in a summary way on a motion, but relief against it must be obtained by appeal or writ of error if the error is apparent on the face of the record, and if not, by bill of review or bill to impeach the decree for fraud or other sufficient cause. ’ ’ The court there ■ further said: “A decree regularly entered cannot be altered of amended after the term has elapsed, except for the correction of matters of form or clerical errors,—and even such amendments cannot be made merely upon the evidence of .solicitors contradicting what appears of record. These rules have been settled by repeated decisions of this court. (Cook v. Wood, 24 Ill. 295; State Savings Institution v. Nelson, 49 id. 171). A decree cannot be vacated or amended at a subsequent term on motion or petition for the purpose of correcting an alleged error which involves the merits of the case. (5 Ency. of Pl. & Pr. 1049.) The proper method of impeaching and setting aside a decree after the term is to file an original bill in the nature of a bill of review when such decree may be set aside, reversed or modified, according to the equities of the parties.” The same rules are announced in many other cases. We are of opinion that the matters relied upon in support of the 'motion were, except in one or two respects, beyond the reach of the court on mere motion after the term.

The foregoing conclusions dispose of this case and require the affirmance of the decree and orders assailed. But as it has been strenuously contended by counsel for plaintiffs in error in briefs and in oral argument and typewritten arguments that the decree is without a semblance of justification in law or fact and should shock the conscience of the court, and that if we approve these proceedings it will be the first time such a result has been reached in an Appellate tribunal in this State, and as a bill in the nature of a bill of review is now barred, we have concluded to discuss the case further.

It is contended that when this bill was filed nothing was due complainant and therefore the court had no jurisdiction to foreclose this mortgage. The note was dated May 5,1904, was due on or before five years after date for $1,622.33, with interest at six per cent, per annum after date until paid. If the note stood alone there was nothing due upon it when the bill was filed; but the mortgage described the note as “with interest at the rate of six per cent, payable annually,” and it provided that if default be made in the payment of the note or any part thereof, “or the interest thereon or any part thereof at the time and in the manner specified for the payment thereof, ’ ’ then the whole of the principal and interest should become due at the option of the mortgagee, and the mortgage might immediately be foreclosed. Therefore the mortgage required the payment of interest annually, and it was not paid, and the filing of the bill was an election to declare the whole sum due, and the bill to foreclose was properly filed on July 29,1905.

The affidavit of nonresidence was sworn to before H. M, Kelly, a notary public. Section 5 of chapter 99 of the Kevised Statutes (J. & A. ft 7841) requires a notary public, before entering upon the duties of his office, to have a memorandum of his appointment and of the time when his office will expire entered in the office of the county clerk of his county. When this affidavit was sworn to, Kelly had been a notary public for a considerable time, but had not then caused such an entry to be made. It is contended that this invalidates the entire proceeding. The statute does not say that his acts shall be void if he fails to comply with the regulation. The public, executing papers before a notary public, are not required to investigate the records in the county clerk’s' office to find whether such an entry has been made, and it would be monstrous to hold that every act performed by or before a notary public who has failed to obey this statute is void, and thus invalidate legal proceedings and titles many years after the acts performed. Kelly was the solicitor-for the complainant, and it is charged that therefore the affidavit is invalid and that the entire proceeding must fail. It is held in Hollenbeck v. Detrick, 162 Ill. 388, that while the practice of verifying papers in a cause before a notary who is an attorney therein is disapproved, yet it is not reversible error. The decree allowed an attorney’s fee, pursuant to the mortgage, and it is contended that therefore Kelly, the attorney, was a party in interest, and for that reason the affidavit, sworn to before him, is invalid, and the decree, based upon said affidavit and publication thereunder, must be set aside, over eight years after it was entered. The decree did not direct defendants to pay Kelly any fee, but the entire sum found due, including the attorney’s fee, was directed to be paid to the complainant, and the right of Kelly to a fee did not depend upon that provision of the mortgage or of the decree, but upon his contract with his client. We hold the attacks upon the affidavit not sustained by the law.

Sections 12 and 13 of the Chancery Act (J. & A. 892, 893) required the notice of the pendency of the suit in such county to be published “in some newspaper printed in his county” at least once in each week for four successive weeks. The certificate of the publisher, filed in this case, certified that the notice in question was published four successive weeks in the Weekly Fair Dealer, the first insertion being on August 4, 1905, and the last on August 25, 1905, and this certificate was dated at Ottawa, Illinois. The service order found “that publications were duly made in the Fair Dealer, a paper of general circulation, published in the City of Ottawa, the first of said publications being made on the 4th day of August, 1905,” and “that the publication was made for four successive weeks in the said Fair Dealer, the first publication being made more than 40 days prior to the first day of the present term.” The order does not state that this publication was in LaSalle county, but we tabs judicial notice that Ottawa is in LaSalle county. Neither the certificate nor the service order say that the Fair Dealer is a newspaper, but only that it is a paper of general circulation, published at Ottawa, and it is argued that it might be a mere circular. We hold that as it is called in the certificate the Weekly Fair Dealer and as the service order finds that it is a paper of general circulation, published in the city of Ottawa, the meaning of all this is that it is a newspaper. It is also contended that neither the certificate nor the order show that it is “printed” in that county. We hold that the finding that it is published there is sufficient, and that if it were a fact that the paper was printed in Chicago and then sent to Ottawa and there published, as at least a part of newspapers having patent insides are printed, nevertheless its publication in Ottawa would satisfy the spirit of the requirements of the sections of the statute above referred to. It is worthy of note that section 1 of chapter 100 of the Revised Statutes, entitled “Notices” (J. &. A. 7853), uses the word “published” instead of “printed.”

It is contended that the proofs reported by the master did not justify a decree of strict foreclosure. The rule is that where the premises are worth no more than the mortgage debt, and the debtor is insolvent and the •creditor is willing to take the property in satisfaction of the debt and the costs, it is proper to decree a strict foreclosure. Wilson v. Geisler, 19 Ill. 49, and other cases. The proofs preserved in the report of the master contain the evidence of a number of witnesses giving their opinions of the values of the several tracts of real estate described in this mortgage. Plaintiffs in error contend that, by making a computation of the values of the several tracts as named by these witnesses and dividing the result by eleven, it will be found that the value of the one-eleventh interest covered by said mortgage was $334.53 more than the amount of this decree. This computation is not set out in the briefs and we have not verified it, but assume it to be true. In arguing that this shows that strict foreclosure should not have been awarded, several things are overlooked. The witnesses stated the value per acre of the entire tracts. It is obvious that a fraction thereof is worth less than the acre value of the entire property, for he who buys such a fraction subjects himself to his share of the expenses of a partition and will be compelled to accept any reasonable price bid, even if he thinks it too small. Again, complainant testified before the master that the land mortgaged to him was worth no more than the indebtedness and the costs. Again, on the hearing of the motion made by plaintiffs in error, they showed that this land was subject to a life estate in the mother of Frank M. Higgins, and that she died December 12,1913. It was also proved before the master that Higgins, the maker of the note, was insolvent. It is said that the $100 solicitor’s fee should not have been included in the decree because not asked in the bill. The mortgage provided that immediately upon filing a bill to foreclose it, $100 solicitor’s fee should become due to the complainant, and a copy thereof was filed with the bill as an exhibit and expressly made a part of the bill. The bill thus showed that a solicitor’s fee of $100 was due, and it prayed for a decree for what was due. We conclude the proofs warranted a decree of strict foreclosure.

In support of the motion plaintiff in error filed the affidavit of Frank M. Higgins. He therein stated that he never received notice in any way of the pendency of this suit and did not know that any proceedings had ever been had to foreclose said mortgage until December, 1913. He then stated for what matters the note was given, implying that the note was given for more than was due. His affidavit gives the dates and amounts of the several judgments which entered into this note, and the principal thereof amounts to $87.53 less than the note. We have computed the interest on said judgments to the date of the note, and find that the note exceeds the principal and interest by less than $24, and the affidavit does not state what the costs were in the several cases where said several judgments were recovered, so that it is obvious that the note was intended to be for the exact amount which Higgins owed on said judgments. The affidavit then sets up an entirely different agreement as to when and how this money should be paid, which agreement is said to have been made at the time when the note and mortgage were executed. All oral and prior contemporaneous arrangements are merged in the papers which the parties execute, and certainly Higgins cannot he heard now to show differently. The affidavit states that affiant’s mother had a life estate in these premises, and agreed with him to pay the interest on this note, and that she did pay the interest thereon from year to year until she died, in December, 1913. He does not state that he was present and saw any interest paid, and he does not produce the affidavit of any other person who saw any interest paid, and his affidavit can only mean that he has been informed or believes that the interest was paid from year to year. In addition to all the reasons hereinbefore set out why such a claim cannot be received on mere motion more than eight years after the decree, the good faith and truth of this affidavit are much shaken by correspondence which defendant in error introduced in rebuttal to said affidavit. At the hearing of said motion Kelly, solicitor for defendant in error, had been called and examined as a witness for plaintiffs in error, and he thereupon further testified in behalf of defendant in error, producing copies which he testified to be true copies of letters written by him, which he testified he mailed, addressed to Frank M. Higgins at Geneva Lake, Wisconsin, and letters in reply thereto, which he testified he received from Higgins. These letters indicate that Kelly was a friend of Higgins and anxious to have him avoid the foreclosure. The correspondence began more than five months before this bill was filed, and Kelly therein repeatedly urged Higgins to pay the annual interest when due and informed him that McCormick would foreclose if he did not, and some time after the note was due wrote him that he had induced McCormick to wait fifteen days longer. Higgins’ replies show that though these letters were addressed to “Geneva Lake” instead of “Lake Geneva,” yet Higgins received them. Under date of May 3,1905, two days before the annual interest was due by the terms of the mortgage, Higgins wrote to Kelly: “I thought I could send a draft to-day for amt. of int. so delayed my reply to your letter. You will receive one next Monday or Tuesday at the latest.” The printed letter heads upon which Higgins wrote these letters, and some of the letters themselves, show that he had an established business at Lake Geneva as the publisher of a newspaper there. Under date of August 6, 1905, the next day after the clerk mailed him the notice, Higgins wrote to Kelly: “I found that it was impossible for me to raise the interest money on that mortgage and as no one is losing anything but myself, I expect it is all right. Your client will find ample funds to reimburse him, and you, no doubt, will get your fee.” After the decree was entered Kelly wrote Higgins telling him the amount of the decree and the time within which he could pay it, and urged him very strongly to make payment and save his land, if he thought it worth more than the decree. In a letter which Higgins wrote to Kelly on August 14, 1906, nearly six months after the final order, he said among other things: “As to my keeping up the interest and preventing the foreclosure, it was simply impossible, so I will have to make the best of the situation as it is:” With these letters in the record it is idle to say that he had no notice and has not been guilty of laches. But plaintiffs in error argue that it is not proven that Higgins wrote these letters and therefore the court should not have permitted them to be received subject to objection. Kelly did not testify in express words that the words “F. M. Higgins ’ ’ signed to them were the genuine signature of Frank M. Higgins. But the letters written by Kelly show that he was well acquainted with Higgins, and he testified that he received these letters from Frank M. Higgins, and they contain such reference to the contents of the letters which Kelly wrote and mailed to Frank M. Higgins as to make it obvious that they are genuine letters of said plaintiff in error. Frank M. Higgins did not take the stand to deny that he wrote them.

We are satisfied that there is no reversible error in the decree and orders assailed by this writ of error. The decree and orders are therefore affirmed.

Affirmed.