text:
    Cordie Whitehead, Administratrix, Appellee, v. Springfield Light, Heat & Power Company, Appellant.
    1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    2. Trial—when improper remarles will not reverse. Remarks of counsel which tend to arouse the prejudice and sympathies of the jury which call attention to the poverty of the next of kin and suggest that the amount of damages might be predicated upon considerations other than that of the pecuniary loss, though grossly improper, will not reverse where the right of recovery under the evidence is clear and the prejudicial effect of such remarks was neutralized by prompt and emphatic instructions of the court.
    Action in case for death caused by alleged wrongful aot. Appeal from the Circuit Court of Sangamon county; the Hon. X$mes A. Creighton, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Wilson, Warren & Child, for appellant.
    Drennan & Lawler, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case for the recovery of damages for the death of George Whitehead, which occurred on December 9, 1909, while he was working in the power plant of the defendant at Springfield, Illinois. Judgment was rendered in favor of the plaintiff for $6,000.

The declaration alleges in substance, that on the day in question, the defendant was erecting and constructing and placing in the engine room at its power plant, certain coal bunkers; that the coal then and there being used to keep up and maintain the fire in the furnaces under the boilers was thrown through the windows of the engine room into said bunkers; that the defendant negligently failed to use reasonable ■ car,e to furnish plaintiff’s intestate a reasonably safe place in which to perform his work; that it negligently placed one of said coal bunkers temporarily upon wooden blocks which were wet and slick and laid one upon the other, without being cribbed or otherwise placed in such position that they would only slip and fall, and negligently failed to in any way fasten the top of said coal bunker to the walls of the engine room to prevent it from tipping forward and falling; and negligently cause coal to be thrown into said bunker while it was in the position aforesaid. That while the deceased was shoveling coal from said bunker into the hopper of one of the furnaces, said bunker by reason of being so temporarily set upon wooden blocks which were wet, slick, and laid one upon the other, and not being cribbed or otherwise placed in position so that they would not slip or fall, and by reason of said coal bunker not being fastened to the top or wall of the engine room, and by reason of causing coal to be thrown therein while it was in said position, said coal bunker tipped forward and fell and struck the deceased, and killed him. The declaration further alleges that the dangerous and unsafe conditions aforesaid were known to the defendant, or by the exercise of due care would have been known to it, and that the same were unknown to the deceased and would not have been known to him by the - exercise of due care on his part; and further, that the deceased was at the time he met with his death, in the exercise of ordinary care for his own safety.

The evidence tends to show that Whitehead was employed by the defendant as a coal shoveler in its boiler room; that on the day in question the defendant was installing sheet iron coal bunkers in its engine room, consisting of three sides and a top, the fourth side being left open so that coal could be shoveled into them from cars on the outside of the building, and then taken from under the bottom by shovelers. Two of the bunkers had been erected, and a third had been put in place during the afternoon. It was necessary to attach the upper edge thereof to one side of the building, and for that purpose it had been raised from the floor about two feet, by putting blocks under the comers. The workmen were engaged in preparing hinges with which to attach the bunker to the side of the building so that the blocks could be removed. In the meantime coal was being shoveled into the bunker from the outside, and taken from underneath on the inside by the shovelers and then shoveled into the grates. While Whitehead was so engaged, the bunker fell and so injured him that he died instantly.

It is first urged by the defendant that the preponderance of the evidence shows that reasonable care and caution was used by it to provide a safe place for the deceased to work. We are satisfied from an examination of the record, that the jury were warranted in finding the contrary. The evidence is ample to warrant the conclusion that the fall of the bunker which injured the deceased was caused by a failure to properly crib or otherwise secure the blocks under the bunker. It is also contended that the evidence shows conclusively that whatever danger existed was obvious to the deceased. One Webster testified that within five minutes prior to the time the bunker fell, he notified Whitehead that the bunker had moved some little distance from the wall at the upper edge and was liable to fall at any time, and that Whitehead in reply said, “Let it fall, he didn’t care.” If the testimony of Webster was true, there would be much force in the contention of the defendant. It was, however, uncorroborated, and there were inconsistencies therein which fairly tended to discredit it. The jury, who were the sole judges of his credibility and of the weight to be given to his testimony, obviously did not believe the same, and we are therefore unable to say that the evidence clearly discloses that the deceased had actual knowledge of the danger. Neither can it be said that the deceased was chargeable with knowledge of the situation from observation. He was not required to make a careful and critical examination of his surroundings, and had a right to assume and to rely upon the assumption that the defendant had fully performed its duty and exercised reasonable care to furnish him with a reasonably safe place in which to work. There - is testimony tending to show that the bunkers were of novel construction, and that his attention was occupied with the work which he was performing. This question, too, was one for the jury, and we cannot say that their verdict was unwarranted.

It is complained that one of counsel for the plaintiff in his closing argument to the jury, used the following language: “If Webster’s statement was false, then Webster is worse than a highway robber; he would filch from this widow and these orphan children their support and education,” and the further statement that “these children are turned out upon the cold charities of a merciless world, and it is for you to say how much they shall have.” The record discloses that upon objection being interposed by counsel for the defendant, the court promptly sustained the same, and told the jury that they should not be influenced by such remarks; that they had no place in the case; that if there was any right to recover, the amount of the damages should be based wholly upon the pecuniary loss, and that whether the next of kin were rich or poor was immaterial. The statements in question were grossly improper. They not only tended to unduly arouse the sympathy and prejudice of the jury, but called attention to the alleged poverty of the next of kin, which fact was immaterial in the case, and not proper to be considered by the jury in the assessment of damages. We are of opinion, however, that their harmful effect was fully neutralized by the prompt and emphatic-instructions of the court. If the right of recovery was less clear under the evidence, we would feel impelled to consider the error assigned as prejudicial, but believe that in the present case the verdict was not affected thereby.

There is no error in the rulings of the court upon the evidence or instructions, and the damages awarded are not excessive. The judgment of the Circuit Court is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mb. Presiding Justice Puterbaugh

license: Public Domain

text:
    W. H. Whitaker, Appellee, v. Charles Shuman, Appellant.
    1. Dower—who entitled to rents after death of doweress. After the death of one having a dower interest in land the rents accruing therefrom become the property of the owner of the fee.
    2. Executors and administrators—when liable in assumpsit. If an executor collect and receipt for rent as such, which rent was not the property of his testator, he is liable in assumpsit to the true owner of such rent.
    Assumpsit. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    R. M. Peadro, for appellant.
    E. E. Wright, for appellee.
   Mb. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit which was tried before the court without a jury. The court found the issues for the plaintiff, assessed his damages at $267.50 and costs, and rendered judgment therefor.

Prior to her death on July 2, 1909, Sue. M. Patterson, who as doweress was enjoying the income from a tract of land, leased a part of the same to W. D. Pat- ■ terson for the term of one year from March 1, 1909, for $500, for which sum he gave her Ms note. She leased other portions to one Monroe and one Vaughn for one-half the crops raised thereon. Said note and the proceeds of said one-half of the crops were collected by appellant Shmnan, who had qualified as the executor of the will of Mrs. Patterson, and were by him received and treated as a part of the personal estate in his hands as such executor. Appellee, Whitaker, who was the owner of an undivided two-fifths of the lands in question, subject to the life estate of Mrs. Patterson, then brought this suit to recover two-fifths of the proceeds of the rent.

It is claimed by appellant that inasmuch as he collected and receipted for the rents in his capacity as executor, and claimed the same as assets of the estate, the only remedy available to appellee was either by replevin against the executor as such, or by obtaining an order of the Probate Court requiring such executor to turn over the rents to him. Under the provisions of section 35, chapter 80, of the Revised Statutes, appellee was clearly entitled to two-fifths of the rents in question. At the time of the death of Mrs. Patterson no rent was due. Rents thereafter becoming due became the property of the owners of the fee.

Her estate had no interest in them and her executor had no right to collect the same. The fact that appellant assumed to collect the rents as executor and charged himself therewith as such, could not in any way affect the rights of appellee. Haynes v. McDonald, 158 Ill. App. 294.

There was no error in the rulings of the court upon the propositions of law. The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Presiding Justice Puterbaugh

text:
    Joseph Lewis et al., Appellees, v. The Drainage Commissioners of Drainage District No. 1, Appellants.
    1. Drainage—section J¡3 of Farm Drainage Act construed. The Farm Drainage Act is independent of and should be construed without reference to the Levee Act, and section 43 of the Farm Drainage Act expressly authorizes the formation of one drainage district within the boundaries of another existing drainage district.
    2. Drainage—jurisdiction of corporation exclusive. There cannot be, at the same time, within the same territory, two distinct municipal corporations exercising the same power, jurisdiction and privileges.
    3. Drainage—when contract void. A contract for work made by a drainage district is void which provides for the doing of work upon a system of drainage over which it has no jurisdiction and those doing work under a contract with a drainage district are bound at their peril to take notice of the invalidity of such contract.
    Assumpsit. Appeal from the Circuit Court of Edgar county; the Hon. W. B. Scholeield, Judge, presiding.
    Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    H. S. Tanner and Eckhart & Moore, for appellants.
    Frank T. O’Hair and James W. & Edward C. Craig, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

The issues involved in this action in assumpsit were tried by the court without a jury. From a judgment in favor of the plaintiffs for $4,245.10 this appeal is prosecuted by the defendants.

The declaration consists of the common counts, in which it is averred that the defendants were indebted to the plaintiffs in the sum of $5,000 for digging, repairing and cleaning out the branch known as the G-ilkey branch in the system of drainage of said drainage district, and for work, services and material furnished in so doing, and a special count which sets out a contract between the parties, whereby the plaintiffs agreed to dig, repair and clean out the branch known as the Gilkey branch in the system of drainage of said drainage district No. 1, theretofore laid out and constructed which branch extended from the main ditch in the southwest quarter of section 26, township 15, in a northeasterly direction through sections 26 and 24, in township 15, and sections 19 and 18, in township 16, which would require the excavation of about 17,000 cubic yards of earth, the said ditch to be repaired with a dredge boat according to certain plans and specifications, in consideration of which the defendants agreed to pay to the plaintiffs the sum of twenty-five cents per cubic yard for each and every yard excavated. It is then averred that the plaintiffs had performed the work required by the contract and in accordance therewith, and that the defendants had refused to pay them for the same or any part thereof.

In addition to the plea of general issue, the defendants filed two special pleas, averring generally that they were not authorized by law and had no authority in law, to make the contract in question; that the same was entered into for the purpose of digging, repairing and cleaning out the main ditch and a branch thereof situated within the boundaries of another and independent drainage district, a municipal corporation created for the purpose of local and more minute drainage of the lands within said district, designated as drainage district No. 4 in Young America township, having commissioners of its own, and exercising the same powers and jurisdiction that were conferred upon the commissioners of said district No. 1. That after the organization of said district No. 4, the commissioners of said district, after acquiring a right of way, extended the .lower terminus of the Gilkey ditch to include that portion of the same that lay below its boundaries, whereby its jurisdiction thereover became exclusive; that said extension beyond the boundaries of district No. 4 was the same ditch described in the second count of the declaration; that ever since such time, said commissioners of district No. 4 had had, and still had, exclusive jurisdiction and control over the said ditch and such extensions, and that the defendants had no jurisdiction over the same whatever, wherefore they had no power to enter into said contract, and that the same was void, and not binding upon said district No. 1. Demurrer was sustained to such pleas, and the defendants elected to abide by the same.

The material facts involved in the controversy, briefly stated, are the following: Drainage district No. 1 of the town of Young America, was originally organized in 1879, and included within its boundaries nearly 20,000 acres of land. The system of drainage adopted by the commissioners consisted of a main ditch and several branches. One of such branches was known as the Gilkey branch, about 4,900 feet in length and running northeasterly to the north line of the land of one Gilkey. On September 21, 1900, the commissioners of highways of the town of Young America, who were ex officio drainage commissioners of said town, organized an independent district under section 43 of the Farm Drainage Act, composed of lands lying partly in district No. 1 and partly without the boundaries of said district and designated as drainage district No. 4. The system of drainage adopted consisted of a main ditch, beginning at the northeast corner of section 19, and running in a southwesterly direction to the south line of the southwest quarter of section 24, and ending at the north line of the Gilkey land— the southern boundary of district No. 4; and from the lower boundaries of .the district the main ditch was extended beyond the boundaries of district No. 4 -to the main ditch of district No. 1, for the purpose of cleaning and enlarging the Gilkey branch of district No. 1. Such extension was constructed by district No. 4 in 1902, and paid for by assessments levied upon the lands of said district. District No. 4 was still in existence as an independent district, and had elected annually an entirely different set of commissioners from district No. 1.

During the year 1907, the defendants as commissioners of district No. 1 entered into the contract here involved with the plaintiffs, for the cleaning out and repairing of what is therein designated as the “Gfilkey branch.” Through error, misunderstanding or ignorance on the part of the commissioners, such contract provided for the cleaning and repairing of that part of the ditch which had formerly been within district No. 1, but which was then claimed to be under the dominión of district No. 4. After the plaintiffs had begun work at the upper end of the ditch within the limits of district No. 4, the mistake was discovered and the defendants notified the plaintiffs to stop work, and that they would refuse to pay for any work done outside of their district. Thereupon the plaintiffs ceased work, and thereafter repeated efforts were made by all concerned to arrive at some agreement or arrangement whereby the work should be completed and paid for. Nothing was accomplished however, and the plaintiffs finally resumed and completed the work, without any further authority from the defendants and without their acquiescence or consent. They then made a demand upon the defendants for payment for the entire work, according to the terms of the contract. The defendants paid them for the lower 4,900 feet, but refused to pay for the remainder of the work, whereupon this suit was instituted.

Upon the trial, the defendants offered to show, under the general issue, a rescission of the contract, and an acquiescence therein by the plaintiffs, but the court held that such proof was incompetent under the general issue, and that the defense should have been raised by special plea. The defendants also sought to show that the ditch described in the contract was not a part of the system of drainage of district No. 1, but was a part of No. 4, and that the Grilkey branch of district No. 1 extended only 4,900 feet from the main ditch. The court held that this defense also should have been raised by special plea.

The position of counsel for appellees that one drainage district cannot legally be formed within the boundaries of another existing drainage district, in support of which they cite People v. Lease, 248 Ill. 187, is unwarranted either by the statute or the authorities construing the same. The drainage districts under consideration in the case cited were organized under the Levee Act, and what is there said has no application to districts formed one within the other under section 43 of the Farm Drainage Act, which expressly authorizes such to be done (Rev. Stat. 1909, 911), and which act, by the terms thereof, must be construed as an independent act. There can be no doubt under the statute and authorities of the legal existence of district No. 4, or as to its power to construct an independent drainage system for local and more minute drainage. People v. Scott, 132 Ill. 427; People v. Swigart, 130 Ill. 618. The two districts were therefore distinct municipal corporations within the same territory, except as to the lands lying wholly without the boundaries of the main district. It is well-settled that there cannot be, at the same time, within the same territory, two distinct municipal corporations exercising the same power, jurisdiction and privileges. Dillon Mun. Corp., 184; Park Commissioners v. Chicago, 152 Ill. 392; Bishop v. People, 200 Ill. 33; Chicago v. Ry. Co., 242 Ill. 30; People v. Lease, supra. Under section 43, district No. 4, upon its organization, acquired jurisdiction of all work within its boundaries, to the exclusion of district No. 1. District No. 1 therefore had no power to levy a tax on the land included within the limits of district No. 4 for the payment of this work.

The plaintiffs were bound at their peril to take notice of the authority and power of the defendants to enter into the contract which they seek to have enforced. District No. 4 being an independent district, and the commissioners having the same powers that the commissioners of main districts have, they were authorized to clean and enlarge the Grilkey branch of district No. 1, by virtue of the power conferred upon them by section 41 of the Farm Drainage Act. The demurrer admitted that the commissioners of district No. 4 did lay out, as a part of this system of drainage, the improvement of the Grilkey branch of district No. 1, and acquired the right of way over the same, and constructed the improvements. That ditch then became, by operation of law, one of the ditches of district No. 4, and it passed under its dominion and control, as much so as any ditch within district No. 4.

The special pleas, in substance, presented a valid defense, and the court erred in sustaining a demurrer to the same. In this view it will be unnecessary to specifically determine the propriety of the rulings of the court upon the evidence and propositions of law submitted by the defendants.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Mrs. Henry Peters et al., Appellees, v. Mike Kamiczaitis et al., Appellants.

      Dram-shops—effect of joint action for loss of support upon measure of damages. The fact that several minor children of the deceased join together in an action for loss of support does not limit the extent of the recovery to such losses as accrue from the time of the death of the deceased until the oldest of the children reaches majority. It is for the jury to determine from the evidence the full amount to which each and all of such children are damaged by reason of tbe death of their father and to return a verdict for the gross amount. -■
    Action in case. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Thomas F. Ferns, Marvin T. Robison, Rufus M. Potts, W. H. Nelms and Alfred Adams, for appellants.
    Smith & Friedmeyer, for appellee; E. S. Smith, of counsel.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case, under the Dram-Shop. Act, instituted by the minor children of Frank Lederle, whose death is alleged to have resulted by reason of the sale to him by the defendant Kamiczaitis, of intoxicating liquor; the other defendants being the owners of the premises in which such liquor was sold. The jury returned a verdict in favor of the plaintiffs for $1,350. To reverse the judgment rendered thereon this appeal is prosecuted.

The sole ground urged for reversal is that the plaintiffs, the several minor children of Frank Lederle, deceased, can jointly recover only for such loss to their means of support as accrued from the time of the death of their father until the oldest of the children reached his majority; in other words, that having elected to sue jointly, which they had a right to do their recovery must be confined to the period during which each had an equal interest in the whole of the recovery. We are of opinion that such position is unwarranted and unsupported by any reasonable construction of the Dram-Shop statute. The plaintiffs had the right to sue jointly for and recover all damages sustained by them on account of the cause of action stated in the declaration. It was for the jury to determine from the evidence the full extent to which each and all of them were damaged by reason of the death of their father, and to return a verdict for the gross amount. It is a matter of no concern to the defendants how or in what proportion the proceeds of the judgment he divided among the joint plaintiffs.

The rulings upon the instructions referred to were correct, and the judgment of the Circuit Court is affirmed.

'Affirmed.


text:
    Carrie Courtney, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Master and servant—when notice of defective condition of tracks presumed. A railroad company is bound with respect to its employes to use reasonable care to keep its tracks in a reasonably safe condition and it is charged with constructive notice as to the existence of a defective and dangerous condition.
    2. Master and servant—when doctrine of assumed risk does not apply. An engineer of a railroad company is not bound to inspect its tracks. He has a right to assume that they are in a reasonably safe condition, and if he is injured through a defective condition while in the performance of his duty, he is entitled to recover.
    3. Evidence—as to what expert testimony not competent. Held, that it was not error for the court to refuse to permit expert testimony as to what might have caused a derailment of an engine, etc.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of McLean county; the Hon. Coeostin D. Myers, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Charles L. Capen, for appellant; John G. Drennan, of counsel.
    De Mange, Gillespie & De Mange, for appellee.
   Mb. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case brought by the plaintiff, as administratrix, to recover damages for the death of her intestate. The declaration consists of six counts, in each of which it is averred that the intestate was in the employ of the defendant as an engineer, and that on February 22, 1909, the engine which he was then driving overturned, whereby he was killed.

The specific negligence charged in the first count is that the tracks were out of repair; in the second, that the ties were rotten and defective; in the third, that the spikes were improperly driven and fastened; in the fourth, that the rails were improperly secured, and in the sixth and seventh, that the defendant required plaintiff’s intestate to run his engine at an unreasonable rate of speed in front of a passenger train, without having promulgated proper rules. A trial by jury resulted in a judgment in favor of the plaintiff for $8,500.

The plaintiff’s intestate, Courtney, was 43 years old at the time of his death, and had been in the service of defendant as an engineer on freight trains, for eighteen years, upon the Freeport division, upon which the accident occurred. On the day in question, the train upon which he was acting as engineer reached Bloomington shortly before eight o’clock in the evening. Under the law limiting the number of consecutive hours of continuous service by trainmen to sixteen, it was necessary to stop the train at Bloomington unless it would reach Clinton by nine o’clock. Upon the arrival at Bloomington, two train orders were received from the dispatcher’s office at Freeport. The first one sent at 7:30 read, “Reduce'your train at Bloomington to what you can make Clinton inside of the sixteen hours;” the second, received at 8:02, read “Set out your train at Bloomington and go to Clinton with caboose. If you cannot make Clinton by nine p. m. with caboose, tie up at Bloomington.” These orders were handed to the conductor and by him shown to Courtney. Pursuant to such order, the cars of the train were set upon side-tracks and the engine and caboose, with the train crew, started south for Clinton at 8:23. At a point about a mile and a half north of the town of Randolph, a small station about seven miles south of Bloomington, the engine from some cause left the rails, turned over, and fell upon Courtney and killed Mm. The evidence mtroduced by the plaintiff tended to show that the road-bed at the place where the accident occurred was properly graded and level; that the rails were in alignment and properly jointed; that there was nothing to indicate to one riding over the track that it was out of repair; that between the station of Randolph and the former station of Old Randolph, about a mile and a half north, the track of the defendant ran over a considerable fill and through a slight cut, but was practically level; that north of Randolph, at least one-third of the ties were rotten and defective; that the spikes were loose, and the rails unfastened and insufficiently secured to the ties, but that such defects could not be detected by an engineer on duty in Ms cab.

There was evidence from which, together with the fair and reasonable inference to be deducted therefrom, the jury was not unwarranted m finding that by reason of the defective condition of the ties and spikes in the track, the rails were caused to spread, whereby the caboose left the track and turned over, about 100 feet from the point of derailment, at about 200 feet further south the tender followed suit, while the engine continued to run upon the ties for the distance of from 300 to 360 feet, when it tipped over on its side and crushed Courtney while at his post of duty. The defendant thus failed in the performance of its duty to use reasonable care to provide Courtney and others employed in its service who were required to run

trains there over at a high rate of speed, with reasonably safe tracks, and to maintain snch tracks in a reasonably safe condition. It must be presumed to have at least constructive knowledge of the defective condition of the track, and it was therefore its further duty to warn Courtney, who was not shown to have been aware of the same, of the danger of running over such track at a high rate of speed, and not to require him to use the speed made necessary to carry out the specific instructions which he is shown to have received. R. Co. v. Kerr, 148 Ill. 605. It was not the duty of Courtney to inspect the tracks over which he was required to run. In the absence of knowledge or means of knowledge to the contrary, he had the right to assume that the defendant had fully performed its duty both of inspection and repair. The evidence shows that the condition of the track and the danger attendant upon the use to which it was being put, were not such to be obvious to an ordinarily prudent person under the- same or similar circumstances. Bonato v. Coal Co., 248 Ill. 422. It cannot be said, therefore, that Courtney assumed the risk of injury, and we are not prepared to hold that the greater weight of the evidence clearly established that he was guilty of such contributory negligence as to bar a recovery by the plaintiff.

'The defendant sought to show by the testimony of the superintendent, an assistant civil engineer, the road-master, and the train-master of the road, their respective opinions, based upon their experience, education and examination of the track after the accident, as to what might have caused the derailment of the .engine. It further offered to prove by the road-master and train-master, that there was nothing at the point where the marks first appeared on the rail, or fifty feet either way, that might in any way or manner have caused the derailment; and whether in their opinion the same might not have been caused by the spreading of the track under the conditions disclosed by the inspection made by the witnesses immediately after the accident. It still further offered to prove by the train-master and traveling engineer, that in their respective experience, derailment of engines sometimes occurred without it being possible to ascertain the cause. The refusal of the trial court to permit the introduction of such evidence is urged as error. We do not think that the court erred in this respect. While the witnesses offered doubtless had greater experience and opportunities of observation than the court or jury, the questions submitted to them were not such as called for the exercise of minds trained in a particular science, skill or knowledge, in order to form an opinion. Yarber v. R. Co., 235 Ill. 589. The facts were fully, specifically and lucidly presented and described to the ■ jury, and they were as competent to form an opinion as either of the expert witnesses in question. Furthermore, the cause of the derailment was in controversy, and it would be improper to permit a witness, whether expert or non-expert, to invade the province of the jury by giving an opinion as to the cause or probable cause of such derailment. R. Co. v. Smith, 208 Ill. 608.

Complaint is made of the refusal of several instructions offered by the defendant. Many of them are fully covered by others given. Several are cautionary in their nature, and whether to give them or not was within the discretion of the court. We find no prejudicial error in the rulings of the court upon the plaintiff’s given instructions. While that referred to as the second has been disapproved in cases where the number of witnesses testifying on the respective sides was greatly disproportionate, we do not think it was error to give it in the case at bar. The defendant offered an instruction which in part told the jury that the burden of proof as to negligence was not upon the defendant to show that it was not guilty of the specific negligence. The court added the words “charged in the declaration,” and gave the same as modified. ■ It is urged that this was error, for the reason that the instruction ignored the defense of assumed risk, and also authorized the jury to consider the fifth count of the declaration, which count the conrt, hy another instruction, had directed the jury to disregard. The practice of referring juries to the declaration has often been condemned, and in a number of cases, where the instruction directed a verdict, the giving of the same has been held to be reversible error. We do not think the jury in the present case were misled by the instruction of which complaint is made.

We are of opinion that the jury were fully and fairly instructed as to the law applicable to the facts involved. The verdict of the jury was not clearly and manifestly against the weight of the evidence, and we find no prejudicial error in the rulings of the court upon the evidence. The judgment rendered upon such verdict is therefore affirmed.

Affirmed.


text:
    Charles B. Lewman, Appellee, v. Danville Street Railway & Light Company, Appellant.
    1. Trial—when improper remarks ground for reversal. Improper remarks in the presence of the jury which if heeded were calculated to arouse passion and prejudice even though rebuked, are ground for reversal.
    2. Instructions—when upon question of negligence erroneous. An instruction .in a personal injury case which assumes the negligence of the defendant, is erroneous.
    3. Instructions—when as to duty of keeping tracks in repair erroneous. It is error to tell.the jury that insofar as the keeping of the track in question in repair was left to the servants of the defendant it was the duty of the defendant to exercise reasonable supervision to see that the work entrusted to them was properly done; the duty of the defendant is to use reasonable care to see that its tracks are kept in a reasonably safe condition.

      4. Instructions—when as to exercise of ordinary care erroneous. It is error to instruct the jury in effect that unless an accident occurred solely through the plaintiff’s negligence he is entitled to recover.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    H. M. Steely, for appellant.
    Mabin & Morris, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

'This is an action on the case hy appellee against appellant, to recover damages for personal injuries sustained by the former while he was in the employ of appellant as a street car motorman. Upon a trial by jury a verdict was rendered in favor of the plaintiff for $300 and judgment entered thereon.

The second count of the declaration charges that the defendant negligently permitted dirt and trash to accumulate in the space on the inside of the rails of its street car track in which the flanges of the car wheels run, and that in consequence the car upon which the plaintiff was acting as motorman, while passing over an iron bridge, was caused to leave the rails and strike the iron frame-work of such bridge, whereby the plaintiff was thrown from the car and injured.

The sixth count charges that the derailment was caused by the negligence of the defendant in allowing a plank in the floor of the bridge to become loose so that one end thereof protruded, by reason of which the wheels of said car were caught by the end of said board. There was evidence tending to support the latter count. Upon the issues whether or not the accident was the result of the negligence of the defendant as charged; whether it was due to the negligence of the plaintiff in running his car at a high and dangerous rate of speed; and whether or not immediately prior to and at the time of the accident he was in the exercise of ordinary care and caution for his own safety, the evidence was close and conflicting, and the court was warranted in submitting the same to the jury. As the judgment must be reversed and the cause remanded for another trial, we shall not detail or discuss the evidence.

An examination of the record discloses that on several occasions during the trial, counsel for plaintiff made improper remarks in the presence of the jury, which if heeded by them were calculated to arouse their passion and prejudice. In view of the closeness of the case upon the facts, such conduct, although rebuked by the trial court, was of itself sufficiently prejudicial to necessitate a new trial. P. & O. Co. v. Scott, 137 Ill. App. 454.

The contention of the defendant that the plaintiff assumed the risk of being injured as charged, is without force, for the reason that the hazard arising from the negligence charged cannot properly be said to have been a usual known danger incident to his employment. There is no evidence tending to show that he knew of the defective condition of the track or flooring of the bridge, or that by exercise of ordinary care he could have known of the same. If however, he ran the car at a high and dangerous rate of speed as claimed he was guilty of contributory negligence.

The first paragraph of the second instruction given at the request of the plaintiff was complete in itself, and when so read, improperly assumed that the defendant was guilty of the negligence charged in the sixth count of the declaration. It was therefore calculated to mislead. The sixth instruction given for the plaintiff told the jury that in so far as the keeping of the track in repair was left to its servants, it was the duty of the defendant to exercise reasonable supervision to see that the work entrusted to them was properly done. The duty of the defendant was to use reasonable care to see that its tracks were kept in a reasonably safe condition. The instruction was misleading and should not have been given.

The fifteenth instruction offered by the defendant, after its modification by the court, told the jury in effect that unless the accident occurred solely through the plaintiff’s negligence, he was entitled to recover. The modification, which consisted in the interpolation pf the word “solely” in the instruction, was clearly improper. The eighteenth instruction was erroneous as offered and as modified and should have been refused. The court did not err in refusing the sixteenth, seventeenth and nineteenth instructions offered by the defendant, nor in refusing the others offered by it.

For the reasons indicated, the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed cmd remanded.


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    Anvilla Wheeler et al., Appellees, v. The Farmers Fire Insurance Company, Appellant.
    • Insurance—when continued vacancy constitutes defense. If premises insured remain vacant and unoccupied contrary to the terms of the policy sued on and no waiver of the provision in question is shown, a recovery will not he sustained.
    Assumpsit. Appeal from the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed.
    Opinion filed May 26, 1911.
    C. B. Obermeyer and McAnulty & Allen, for appellant.
    John G. Friedmeyer, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by appellees against appellant to recover amount claimed to be due under a fire insurance policy. The declaration alleges that said policy was issued on February 27, 1908, for the term of one year, covering a building in Springfield, Illinois; that, thereafter while the policy was in full force and .effect, on September 12, 1908, said building was destroyed by fire; that the plaintiffs were the owners of the property, which was of the value of $500; that the plaintiffs gave notice of the loss and in all things complied with the requirements and conditions of the contract. The defendant pleaded among other special defenses, that the building in question was' allowed by the insured to become and remain vacant for a longer period than ten days, contrary to the conditions of the policy, which provided that the same should become void in case of such vacancy; to which the plaintiffs replied that the agent of the company knew that the property was vacant and that the insured intended to allow it to remain vacant during the life of the policy. A trial of the issues by jury resulted in a verdict in favor of the plaintiffs for the sum of $500.

The evidence discloses that the building in question had been occupied as an ice house for several years before the fire, but that prior to the issuance of the policy it had been abandoned and the doors nailed up, so as to prevent access thereto. It is manifest therefore, that the building was vacant and unoccupied for a longer period than ten days within the meaning of the policy. The local agent of the appellant company denied that he at any time knew that the building was vacant, and there is no proof tending to show that the appellant or any one representing it had any such knowledge. Appellees seem to contend that because the building was described in the policy as an ice house, it was unnecessary that any endorsement permitting the vacancy should be made upon the policy, for the reason that appellant was presumed to know that such a building would be occupied for such time only as ice might be stored therein and until the same was removed. There is no evidence in the record tending to show that it was usual and customary for ice houses to remain continuously vacant for the purposes of the storage of ice, for two or three years, with the means of ingress and egress barred. To hold that such facts and circumstances operated as an estoppel or constituted a waiver of the conditions of the policy, would be to destroy the contract which the parties have themselves made, and substitute by judicial interpretation a new and different one. The construction of the words “vacant and unoccupied” as used in the policy, was a question of law. There was no knowledge shown on the part of appellant or its agent of the vacancy, at the time of the issuance of the policy, or thereafter. The policy was by its terms void, and there was no question of fact for submission to the jury. The trial court should therefore have granted the motion of the defendant to direct a verdict in its favor, at the close of all the evidence.

The judgment of the County Court is reversed.

Reversed.


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    David Bidle, Appellee, v. C. E. Hamilton, Appellant.
    1. Executions—what not subject to. A promissory note cannot be levied upon and sold under execution.
    2. Attachment and garnishment—amendment to section 5 of act relative to attachments before justices, construed. The amendment to section 5 of the act relative to attachments before justices of the peace does not permit evidences of indebtedness, such as promissory notes, to be subject to seizure upon writs of execution.

      Assumpsit. Appeal from the Circuit Court of Coles county; the Hon. M. W. Thompson, Judge, presiding.
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Albert C. Anderson, for appellant.
    J. H. Marshall, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit by appellee, David Bidle, against appellant, C. E. Hamilton, on a promissory note, executed by said Hamilton. The declaration consists of a special count on the note, and the common counts.

The second plea of the defendant alleges that prior to the bringing of the suit, one Blankenbaker had brought suit in attachment against said Bidle before a justice of the peace; that service by publication was had on Bidle, and judgment rendered in such suit against Bidle and in favor of Blankenbaker; that the Charleston State Bank was summoned as a garnishee in said attachment suit, and that said bank answered therein that it had in its possession a promissory note belonging to said Bidle, signed by said Hamilton; that the justice of the peace ordered said bank to surrender said note, and issued an execution to the constable, who levied the same on the said note, and sold the same at constable’s sale to said Hamilton for $115, and that by reason of the said facts Hamilton was not liable on said note. The additional plea alleges that the note was sold by the constable “by order” of the justice of the peace, instead of upon the execution. Demurrers were sustained to both pleas. The defendant abided by bis pleas, and judgment was entered by default against him for $434.55.

The propriety of the action of the court in sustaining demurrers to the pleas depends upon whether or not under the law of this state a promissory note can be levied upon and sold under an execution and the title of the owner thereof thereby diverted. We are of opinion that the question must be answered in the negative. It is well settled that a promissory note cannot be sold on execution. Crawford v. Schmitz, 139 Ill. 564; Vault Co. v. Barrett, 222 Ill. 169. Nor can a promissory note be reached by a writ of attachment. Prout v. Grout, 72 Ill. 456. We do not think that the effect of the amendment to section 5 of the act relative to attachments before justices of the peace is to permit evidence of indebtedness such as promissory notes to be subject to be seized upon writs of attachment. The proper remedy is by garnishment summons against the person liable thereon. The proceedings before the justice of the peace in the present case in no way affected the right of the appellee to recover from appellant, the maker of the note. 'The facts alleged in the plea did not constitute a defense to the action, and the demurrers thereto were properly sustained. The judgment of the Circuit Court is accordingly affirmed.

Affirmed.


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    Minnie M. Nihell, Defendant in Error, v. Edward M. Nihell, Plaintiff in Error.

      Divorce—When decree should he set aside. If a decree of divorce is granted upon the ground that the defendant had a former wife living at the time he intermarried with the complainant, a motion made at the term of entry to set aside such decree should in the exercise of a sound discretion be granted if the showing made in support thereof is such as to create a doubt as to the propriety of the decree.
    Divorce. Error to the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge presiding.
    Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.

      Thomas F. Ferns and Eugene Hale, for plaintiff in error.
    Acton & Acton, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This writ of error is prosecuted by the defendant to have reviewed an order of the Circuit Court overruling a motion to set aside a decree granting the complainant, Minnie M. Nihell, a divorce from the defendant, Edward M. Nihell.

The record discloses that the bill was filed on March 24, 1909, and summons returnable to the May term, 1909, of said court, issued and returned by the sheriff “not found.” Service was thereupon had upon the defendant by publication under the statute. At said May term a default was entered, and a hearing had, which resulted in the entry of a decree in accordance with the prayer of the bill. At the same term the defendant moved the court to set aside said decree, which motion was overruled.

The ground for divorce set up in the bill is that the defendant had a former wife living at the time he intermarried with the complainant. The defendant was on June 16, 1892, married to one Dora Schwindt. On February 28, 1902, the complainant and defendant were married, and on March 24, 1909, the complainant filed the present bill against the defendant, alleging that at the time he married her, the said Dora Schwindt was living and that the defendant had never been divorced from her. It is contended by the defendant that on May 4, 1897, an absolute divorce was granted to his first wife by the Circuit Court of Davidson county, Tennessee, while the complainant contends that although such first wife did institute proceedings for divorce against the defendant in said court on November 23, 1896, no decree was ever rendered in the suit until May 15,1909, when said court improperly entered a decree of divorce nunc pro tunc as of May 4, 1897.

We shall not consider or determine the questions raised as to the sufficiency of the proof upon which the decree was rendered, or whether or not competent evidence was heard in support of the bill, or whether proper service by publication was had upon the defendant. It will suffice to say that we are of opinion that upon the showing made by the defendant on the motion to vacate the decree, the chancellor should have in the exercise of a sound discretion, set aside the decree, and allowed the defendant to answer the bill and have his day in court. The motion was made at the first and at the same term the decree was rendered. The showing made by the defendant upon the motion was sufficient to create doubt as to the propriety of the decree.

The order of the Circuit Court overruling said motion is therefore reversed and the cause remanded with direction to set aside said decree of divorce and permit the defendant to answer the bill.

Reversed and remanded.


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    The People, for use State Board of Health, Appellant, v. A. M. Bochner, Appellee.
    This case is controlled by the decision in People v. Wilson, 249 Ill. 195.
    Action in debt. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Frank L. Hatch, for appellant.
    Alonzo Hoff, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This appeal is from a judgment for the defendant rendered in an action in debt for the recovery of a penalty for selling medicine as an itinerant vendor, without first having secured a certificate from the State Board of Health as provided by section 8, paragraph 12, chapter 91 of “An Act to Regulate the Practice of Medicine in the State of Illinois.”

The section of the statute in question has since this appeal was perfected been declared to be unconstitutional, for the reason that the practical effect of the same, so far as patent or proprietary medicines are concerned, is to give druggists a monopoly of the sale of such medicines, the license fee required to be paid by itinerant vendors being so high as practically to prohibit them from engaging in such business. People v. Wilson, 249 Ill. 195.

The judgment is therefore affirmed.

Affirmed.


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    Charles VanMiddlesworth, Appellant, v. William A. Hill et al., Appellees.
    1. Roads and bridges—-what essential to personal liability of highway commissioners. Highway commissioners can only be held personally liable for damages to persons or property with respect to the performance of their official duties when under the guise or pretense of performing a duty they perform some ministerial duty in a wrongful and negligent manner, or where they corruptly, wilfully or negligently fail to perform some mandatory duty.
    2. Personae injuries—when declaration states good cause of action against highway commissioners. Meld, that the declaration in this case set forth a good cause of action against the defendant highway commissioners, it averring among other things that the defendants, with full knowledge of the dangerous and unsafe condition of the bridge in question for a sufficient length of time to have enabled them to have repaired and made the same reasonably safe for use prior to the injury to the plaintiff, with sufficient funds at all times at their disposal and available for such purpose, and with knowledge that their failure to repair said bridge would in all probability result in injury to some person using the same, permitted said bridge to be and remain out of repair and unsafe for use by the traveling public.
    3. Pleading—when averment of due care sufficient. An averment of the exercise of ordinary care upon the part of the plaintiff is sufficient to authorize a submission of that issue to the jury.
    Action in case. Appeal from the Circuit Court of Pulton county; the Hon. H. M. Waggonek, Judge, presiding.
    Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Chiperfield & Chiperfield, for appellant.
    O. J. Boyer, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case against the commissioners of highways of Farmington township, Fulton county, to recover damages for injuries received by the plaintiff while driving a traction engine over a bridge across Copperas creek in said township, which bridge constituted a part of the public highway. A demurrer was sustained to the declaration and the plaintiff elected to abide thereby, whereupon the court entered judgment against him in bar of action and for costs.

The declaration charges, in substance, that it was the duty of the defendants, as commissioners, with the funds under their control, to keep said bridge in a reasonably safe condition of repair for the use of the public traveling along said highway; that for more than sixty days prior to the time the plaintiff was injured, the stringers, sills, foundation and floor of said bridge were rotten and decayed so that said bridge was in an unsafe condition for use by the traveling public, of which fact the defendants, as commissioners, had knowledge; that said defendants, as commissioners, negligently and wilfully neglected and failed to perform the duty imposed upon them by law as such commissioners to keep said bridge in a reasonably safe condition for use by the traveling public, although they had in their hands sufficient funds subject to their order for that purpose, and had full knowledge of the dangerous condition of said bridge and of the probability of serious injury to the public by reason thereof; that on July 28, 1908, the plaintiff, being a total stranger in that locality, and with no knowledge of the unsafe condition of said bridge, proceeded along the public highway with the intention of crossing said bridge with a certain traction engine and hay baler; that when he reached said bridge, and said traction engine and the front truck of said baler rested upon said bridge, and while the plaintiff was in the act of crossing the same therewith, and while he was in the exercise of all due care and caution for his own safety, the said bridge, by reason of its dangerous and decayed condition, gave way and fell to the ground, whereby the plaintiff was crushed and held by the traction engine and baler, and received serious permanent injuries.

It has been frequently held in this state that highway commissioners can only he held personally liable for damages to persons or property with respect to the performance of their official duties when under the guise or pretense of performing a duty, they perform some ministerial duty in a wrongful and negligent manner, or where they corruptly, wilfully or negligently fail to perform some mandatory duty. Lienemann v. Costa, 140 Ill. App. 167; Skinner v. Morgan, 21 Ill. App. 209; Neville v. Viner, 115 Ill. App. 364. Appellees contend that the declaration does not allege that the appellees in the performance of some ministerial duty, performed the same in a wrongful or. negligent manner, nor does it sufficiently plead facts constituting corrupt, wilful or negligent failure to perform some "mandatory duty.

'The averments of the declaration, which must be taken as true, show that the defendants, with full knowledge of the dangerous and unsafe condition of the bridge, for a sufficient length of time to have enabled them to have repaired and made the same reasonably safe for use prior to the injury to the plaintiff, with sufficient funds at all times at their disposal and available for use for such purpose, and with knowledge that their failure to repair said bridge would in all probability result in injury to some person using the same, permitted said bridge to be and remain out of repair and unsafe for use by the traveling public. Under such circumstances, their failure to make a reasonable effort to repair the bridge so as to make the same reasonably safe for travel must be held to have been wilful and intentional. The contention that it appears from the face of the declaration that the plaintiff was guilty of contributory negligence is untenable. The averment of due care on the part of the plaintiff is sufficient to warrant the submission of the issue to the jury. We are of opinion that the' declaration states a good cause of action, and that the court erred in sustaining a demurrer to the same.

The judgment will be reversed and the cause remanded with directions to the Circuit Court to overrule the demurrer in question.

Reversed and remanded.


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    J. C. Heckman, Appellee, v. Springfield, Clear Lake & Rochester Interurban Railway Company, Appellant.
    1. Trial—order of introduction of proof. Unless an abuse of discretion is shown the action of the trial court in permitting the plaintiff to introduce further testimony after he had closed his case, will not reverse.
    2. Appeals and errors—when assignment of error not considered. An objection urged on review will not be considered in the absence of the abstract showing .that an exception was preserved.
    Assumpsit. Appeal from the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding.
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    George M. Morgan, for appellant.
    Shutt & Fain, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a judgment in favor of the plaintiff, for $219. The declaration consisted of the common counts, together with a bill of particulars showing the claim of the plaintiff to be for an amount claimed to be due to him for labor performed for the defendant.

The evidence introduced by the plaintiff tends to show that he was employed by the defendant on March 12, 1907, as a conductor and motorman upon its railroad; that his wages were to be $14 a week in cash, and the sum of $20 per month to be credited on account of bonds of the road to be purchased by him; that on or about March 27, 1907, a new arrangement was entered into, whereby he was to receive $14 a week in cash, and $15 a month to be credited on said purchase of bonds. On or about August 27, 1907, still another arrangement was made, whereby he was to be paid $15 per week, and $15 per month credit on bonds; that when he quit the employ of the company, on September 17, 1908, there was due him a credit upon the purchase of bonds of the sum of $36, which was thereafter paid to him by the manager of the company, in small cash installments. The defendant contends that the arrangement whereby the plaintiff was to receive a credit each month on account of payment for bonds, was not renewed on August 27, 1907, at the time his wages were raised from $14 to $15 a week. Upon the controverted issue as to the terms of the employment, the jury were not unwarranted in finding in favor of the plaintiff.

It is urged that the court erred in refusing to direct a verdict for the defendant at the close of plaintiff’s _ case, and again at the close of all the evidence, for the reason that the pleadings in the case were insufficient to advise the defendant of the character of the plaintiff’s claim. Such contention is without merit. The pleadings we think sufficiently advised the defendant. The objections urged to the instructions given on behalf of the plaintiff are also without merit. They correctly state the law.

It is further urged that the court further erred in permitting the plaintiff to introduce further testimony after he had closed his case. The order in which testimony shall be received is a matter resting largely within the sound discretion of the court, and we do not think that such discretion was abused in this instance. It is finally contended that the court erred in admitting in evidence the written demand of the plaintiff before bringing the suit, for the wages claimed by him to be due. As to this objection it will suffice to say that the abstract does not disclose that the defendant preserved any exception to the adverse ruling of the court.

The verdict and judgment were warranted by the evidence, there was no prejudicial error in the rulings of the court upon the evidence or instructions, and the judgment is accordingly affirmed.

Affirmed.


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    Andrew Laskodik, Appellee, v. John Tomashumes, Appellant.
    Forcible entry and detainer—when lies to recover possession wrongfully taken. No one, not even the owner, has the right forcibly to take possession of premises from one in the occupation thereof, no matter how justly he may be entitled to it, and the person so dispossessed against his will may recover possession even though his original possession may have been wrongful.
    Forcible entry and detainer. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding.
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion • filed May 26, 1911.
    Shutt & Fain and Conkling & Irwin, for appellant.
    Albert Salzenstein and John L. King, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

In a suit of forcible entry and detainer against appellant, appellee recovered judgment for the possession of a certain store room.

On the evening of December 1, 1909, appellee bought the saloon business of appellant, who had been conducting the same in the premises involved, for the sum of $1,100, and at the time paid $20 to appellant on account of the purchase price. The evidence as to the terms of the contract of sale, the payment of the balance of the purchase price, and when the possession of the business was to be delivered, is conflicting. That adduced by appellee tends to show that the possession of the premises was at the time delivered to appellee; that he was to pay the balance of the purchase price on the following morning, and that he continued in possession until dispossessed by appellant.

The evidence on behalf of appellant tends to show that possession was not delivered to appellee at the time of the sale, for the reason that the full purchase price was not then paid, and that appellant at no time surrendered possession to him. It is not controverted, however, that on the evening of December 3rd, while appellee was in possession of the premises, whether wrongfully or otherwise, appellant procured a warrant to be issued against him for trespass, that appellee closed the saloon, gave bond, returned to the saloon and re-opened it; that appellant then swore out a similar warrant, and that while appellee was under arrest thereunder, appellant took and retained possession of the premises.

'The controlling controverted question of fact involved is whether appellee was in lawful occupation of the premises at the time he was dispossessed by appellant. Phelps v. Randolph, 147 Ill. 335. The jury, who were the' sole judges of the credibility of the witnesses and of the weight to be given to their testimony, have returned a verdict in favor of appellee upon this issue. Their finding cannot be said to be clearly against the weight of the evidence, and we are therefore not at liberty to disturb the same. If appellee was in possession of the premises, no one, not even the owner, had the right to forcibly take the possession from him, no matter how justly he may have been entitled to it, and having taken such possession against the will of appellee, he is liable in this form of action even though no violence was employed and even though appellee’s possession may have been wrongful. Phelps v. Randolph, supra; R. R. Co. v. Johnson, 119 U. S. 608.

We find no error in the rulings of the court upon the evidence or instructions, which could have operated to the prejudice of appellant. The judgment of the Circuit Court is affirmed.

Affirmed.


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    Paris Savings & Loan Association, Defendant in Error, v. Margaret Shea, Plaintiff in Error.

      Mortgages—what credited against indebtedness. A fund designed to be applied towards the reduction of a mortgage debt will not in equity be allowed to be diverted to the injury of a party in interest.
    Foreclosure. Error to the Circuit Court of Edgar county; the Hon. W. B. Scholfield, Judge, presiding.
    Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    F. W. Dundas, for plaintiff in error.
    Frank T. O’Hair, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This writ of error is prosecuted to have reviewed a decree of foreclosure under a real estate mortgage executed by Johanna Fitzpatrick and Margaret Shea to the complainant, to secure the payment of a loan of $600. As additional security for such loan, and in accordance with the by-laws of the complainant association, said parties, together with John Shea, the husband of Margaret Shea, assigned to the complainant six shares of the capital stock of Series B of said corporation, which had been issued to them jointly; also an agreement by which the holders of said stock agreed to pay all stock dues, premiums and interest upon the loan, until such time as said shares should reach their par value. Both the mortgage and said agreement provided that if the mortgagors should fail to pay said dues, premium and interest, for a period of six months, said mortgage might be foreclosed.

The mortgaged property in question was owned by Margaret Shea, subject to the life estate of Johanna Fitzpatrick, her mother. John Shea, who held an inchoate right of dower in the premises, as the husband of Margaret, died shortly after the mortgage was executed. From the time the loan was made in July, 1894, until September 26, 1902, Mrs. Shea and Mrs. Fitzpatrick continued to make the payments required by the stock agreement and mortgage, each furnishing one-half of the necessary money, the proceeds of the loan having been divided equally between them.

In September, 1903, at which time dues and interest had been paid up to and including the month of April, 1902, and the value of the stock was $566, Mrs. Fitzpatrick, without the knowledge or consent of Mrs. Shea, withdrew the additional sum of $500 from the complainant, and out of the same paid six months dues and interest to November, 1902, thereby increasing the value of the stock to $588.20, being within a few dollars of the amount due upon the first loan with interest. She at the same time procured one share of the stock to be cancelled and the remaining five shares to be transferred to a different class, thereby reducing the monthly dues and further deferring the maturity of the stock. She then reported to Mrs. Shea that she had settled in full with the complainant. In November, 1903, at which time the transferred shares had reached the value of $102, she withdrew their full value in cash. From September, 1903, until June, 1905, she personally paid the dues and interest upon the stock. A conservator was then appointed for her, who thereafter until her death on February 7, 1907, paid interest only upon the loan. After Mrs. Fitzpatrick’s death, Mrs. Shea paid the complainant the sum of $14 but declined to make any further payments, and the present bill to foreclose followed.

The chancellor found that there was due on account of the original loan the sum of $632.70, and that there should he credited upon the same, payments to the extent of $135, leaving a balance of $497.70, for which a decree of foreclosure was entered. There is no controversy as to the amount paid in to the complainant, the amount borrowed, or the amount withdrawn.

It is contended by plaintiff in error that the complainant had no right to permit Mrs. Fitzpatrick, without the consent of the joint owners of the stock, to withdraw from the association any part of the accumulated dues and dividends paid in by them, and that the full value of the stock certificates should be applied in liquidation of the mortgage indebtedness. Defendant in error contends that the dual relation between it and the borrowing stockholders is such that their respective rights thereto and interests therein, as among themselves, are not involved in the present proceeding, and that either of them had the right to make such withdrawals. Conceding, as contended, that a borrowing member of a building and loan association sustains a dual relation toward such association, each relation independent of the other, and that payments of dues upon stock are not payments upon and do not ipso facto extinguish so much of the mortgage indebtedness; and conceding further, that such stockholders could, acting jointly, with the consent of the association, withdraw at any time any portion of the joint fund created by their payments upon stock dues, we are, nevertheless, of opinion that in equity the payments made upon the stock in question should be credited upon the mortgage debt. It was undoubtedly understood by Mrs. Shea that under the contract, all payments made should and did reduce the mortgage debt, unless she and her co-stockholders saw fit, acting jointly, to withdraw the value of the same. The fund created by such payment was the joint property of such stockholders, and neither had the right, without the consent of the others, to divert it from the purpose contemplated. The defendant association wrongfully allowed Mrs. Fitzpatrick so to do, without the knowledge and consent of Mrs. Shea and in utter disregard of her rights. To permit it now to say that such funds should not be applied as was obviously intended, would be palpably and grossly inequitable.

The present decree is accordingly reversed and remanded with directions to the Circuit Court to credit upon the mortgage debt the value of the stock in April, 1902, which is admitted to have been $566.12, and the sum of $14 paid by her to the association after the death of Mrs. Fitzpatrick.

Reversed and remanded.


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    Ernie A. Vittum, Appellant, v. E. K. Drury, Appellee.
    1. Instructions—when upon preponderance of evidence erroneous. It is error to instruct the jury that the preponderance of evidence is not alone determined hy the number of witnesses testifying to particular facts or state of facts.
    2. Instructions—when upon contributory negligence erroneous. It is error to tell the jury that if they believe from the evidence that the plaintiff might in the exercise of ordinary care and caution have seen the danger and avoided it and that his omission to do so directly contributed to the injury he was guilty of such negligence as to prevent a recovery, in that the word “would” should have been used instead of “might.”
    3. Instructions—when upon contributory negligence improper. An instruction is properly refused which invades the province of the jury by stating in effect that certain facts constitute contributory negligence and preclude a recovery.
    4. Instructions—upon liability in action for personal injuries, properly refused. An instruction in an action for personal injuries is properly refused which assumes contributory negligence of the plaintiff and ignores in some respects the obligations of the defendant.
    5. Instructions—when as to credibility of witness erroneous. An instruction upon this subject is improper which omits the element of materiality of the facts as to which the witness has knowingly testified untruthfully.
    6. Negligence—doctrine of comparative. The doctrine of comparative negligence no longer exists in Illinois.
    Trespass. Appeal from the City Court of Canton; the Hon. H. C. Moran, Judge, presiding.
    Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Chiperfield & Chiperfield, for appellant.

      O. J. Boyer, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in trespass for the recovery of damages for injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. A verdict was returned and judgment rendered thereon in favor of the defendant. The first count of the declaration charges, in substance, that while the plaintiff was driving along a public highway in a buggy, the defendant approached from an opposite direction driving a team attached to a lumber wagon, at the rate of twenty milés an hour; that in passing or attempting to pass the plaintiff, the defendant with said team and wagon negligently ran into the horse attached to the buggy in which the plaintiff was riding, and collided with said buggy, whereby the plaintiff was thrown to the ground and injured. The remaining counts of the declaration are substantially the same, except that in each the manner of the collision is stated differently. It is alleged in each count that the plaintiff at the time of the accident was exercising due care for his own safety.

The evidence shows that the highway at the place where the collision occurred was sixty feet in width and ran east and west. In the center of the highway there had been constructed a brick pavement sixteen feet wide, on either side of which there was a dirt road of sufficient width to permit a team to be driven thereon in either direction; that at about six o’clock in the evening the plaintiff was traveling in an easterly direction on the dirt road, on the south side of said highway, at a slow rate of speed; that the defendant and one McQuaid, each of whom was driving a team hitched to a lumber wagon and traveling at a rate of speed equaling fifteen miles an hour, approached the plaintiff, the defendant’s team being on the dirt road to the south and McQuaid’s team on the dirt road to the north, of the hard road. When the plaintiff observed the teams approaching, he pulled out upon a dirt bank to the south of the dirt road south of the hard road, so that the right wheels of his buggy were on the dirt bank, and called to the defendant to turn out; but that the defendant pulled across the road to the left in front of the plaintiff, in such a manner that one of his horses passed between the plaintiff’s horse and the bank to the left of the plaintiff, whereby the plaintiff was thrown out of his buggy to the ground and injured.

The plaintiff contends that under the foregoing facts and the law applicable thereto, it was the duty of the defendant in attempting to pass him, to have turned toward the right, and that his failure to do so constituted actionable negligence. The defendant claims that there is evidence tending to show that upon observing the approach of the defendant, the plaintiff pulled his horse square across in front of the defendant’s running team; that one of the defendant’s horses became frightened and uncontrollable; that he tried to stop them by pulling on them, and being unable to do so, to turn them outside of the road into the fence on the left-hand side; that so far as the defendant was concerned the accident was unavoidable, and further that the plaintiff was guilty of contributory negligence on his part.

While-the proof is insufficient to warrant a finding that the plaintiff was guilty of contributory negligence, there is a sharp conflict in the evidence upon the issue of the negligence of the defendant. Under such circumstances it was essential that the jury should have been accurately advised as to the rules of law applicable to the facts in controversy. It is contended by the plaintiff that none of the instructions offered by the defendant correctly stated the law.

As to a number of them such contention is well-founded. The sixth told the jury that the preponderance of the evidence in the case was not alone determined by the number of witnesses testifying to a particular fact or state of facts. Similar instructions have been disapproved in Sullivan v. Sullivan, 139 Ill. App. 378, and Lyons v. Eyerson, 242 Ill. 409, as having a tendency to mislead the jury. The seventh, which told the jury that if they believed from the evidence that the plaintiff might in the exercise of ordinary care and caution, have seen the danger and avoided it, and that his omission to do so directly contributed to the injury, he was guilty of such negligence as to prevent a recovery, is incorrect and misleading in the use of the word “might” instead of “would.”

The 8th, 20th and 25th instructions are objectionable for the reason, among others, that they seek to invoke the doctrine of comparative negligence, which is no longer the law in this state. “All the puzzling refinements as to degree of care have been done away with, and the accepted rule is, that if one exercises the degree of care required of him under the circumstances, he is guilty of no negligence, but. if he fails to do so he is guilty and cannot recover.” Krieger v. R. R. Co., 242 Ill. 544. Instructions 6, 9 and 18 were improperly given for the reasons stated in Himrod Coal Co. v. Clingan, 114 Ill. App. 568. Instruction 10 invades the province of the jury by telling them in effect that certain facts constituted contributory negligence and precluded a recovery. It further assumes negligence on the part of the plaintiff, and also ignores the exercise by the plaintiff of the duty imposed by law to keep to the right of the beaten track on a public highway. The 18th instruction is further objectionable for the reason that it omits the element of materiality of the facts as to which the witness has knowingly testified untruthfully.

For the errors indicated, and others relating to instructions which we shall not discuss, the judgment must be reversed and the cause remanded.

Reversed and remanded.


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    The People, for use State Board of Health, Plaintiff in Error, v. H. W. Turney, Defendant in Error.
    This case is controlled by the decision in People v. Wilson, 249 Ill. 195.
    Action in debt. Error to the Circuit Court of Montgomery county; the Hon. J. C. McBride, Judge, presiding.
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Harry C. Stuttle and Amos Miller, for plaintiff in error.
    Rinaker & Rinaker, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

In an action in debt to recover a penalty for selling medicines as an itinerant vendor, without first having secured a certificate from the State Board of Health, as provided by section 8, paragraph 12, chapter 91 of “An Act to Begulate the Practice of Medicine in the State of Illinois,” the trial court, at the conclusion of the plaintiff’s evidence directed a verdict of not guilty. In People v. Wilson, 249 Ill. 195, the section of the act upon which this prosecution is based was declared to be unconstitutional" and void. The judgment must be affirmed, notwithstanding the evidence shows a clear violation of the section of the statute in question.

Affirmed.


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    George W. Riedel, Appellee, v. Francis F. Crocker, Appellant.

      Evidence—when testimony of wife incompetent. In an action of trespass for assault and battery the wife of the defendant is incompetent in his behalf.
    Trespass. Appeal from the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding.
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Govert & Lancaster, for appellant.
    Hubbard, Schmiedeskamp & Groves, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

In an action in trespass the plaintiff recovered judgment for $470. The declaration charges that on August 27, 1908, the defendant made an assault upon the plaintiff and shot and wounded him with a pistol. In addition to the general issue the defendant pleaded self-defense of himself, self-defense of his minor child, and the plaintiff replied sua de injuria as to the latter pleas.

The evidence shows that on the morning of the day he was assaulted, the plaintiff left his horse and buggy at the livery barn of the defendant, in Payson, Adams county, for care and feeding; that about eight o’clock in the evening, when in a partially intoxicated condition, he returned to the bam for his horse and buggy, he became involved in a dispute with the defendant’s wife as to the amount due the defendant for care of the horse, whereupon she called the defendant, who was busy at another bam. He and the plaintiff then had a quarrel, during which the latter used profane and threatening language. As to what then followed the evidence is in close conflict. That adduced by the defendant tends to show that the plaintiff started toward the defendant in a threatening attitude and struck at him several times while holding some bright object in his hand; that as he advanced, the defendant, who was holding his infant child in his arms, stepped backward, that his wife then grasped the child and took it from him, and that the defendant, acting under the belief that the child had been struck or injured by the plaintiff, drew a revolver from his pocket, and discharged the same twice at the plaintiff, so wounding him that he was confined to his bed for about three weeks, and was compelled to use crutches for two or three months. The evidence introduced by the plaintiff tends to show that he was not intoxicated or boisterous, that the child was not present, and that the assault was without legal justification.

The only serious error in the rulings upon the evidence was the admission of the testimony of the defendant’s wife. The cross-error based thereon is well-assigned, and in weighing the evidence we have not considered her testimony.

While we are convinced that the assault was not entirely unprovoked by the conduct and language of the plaintiff, and that the defendant’s version as to what occurred prior to the assault is more probable than that of the plaintiff, the plea of defense of the child, upon which the defendant relied, was not sustained by the greater weight of the evidence.

Notwithstanding several of the instructions given are subject to criticism, the jury were fully and fairly informed as to the law of the case, and were not misled. The rule of self-defense invoked by the defendant was substantially covered by the plaintiff’s third and sixth instructions. There was no warrant for plaintiff’s first instruction, which permitted the assessment of damages for mental anquish or mortification. In view of the fact that the' amount of the verdict is not excessive, the error could not have' been prejudicial.

The judgment of the Circuit Court is affirmed.

Affirmed.


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    Stany Petrausky, Appellee, v. Illinois Midland Coal Company, Appellant.
    1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence where not clearly and manifestly against its weight.
    2. Verdicts—when not excessive. A verdict for $1,300 reduced by remittitur to $800 will not be set aside as excessive notwithstanding it appears that the plaintiff’s injury was slight, that his recovery was speedy and complete and that his loss of earnings was small.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Brown, Wheeler, Brown & Hay and John T. Creighton, for appellant.
    W. St. J. Wines, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action in case, to recover damages to compensate the plaintiff for personal injuries sustained by him on January 8, 1910, while in the employ of the defendant as a driver in its coal mine at Pawnee. The jury returned a verdict in favor of the plaintiff, and assessed his damages at $1,300. Upon the hearing of a motion for a new trial the plaintiff remitted $500 of the damages as assessed by the jury, whereupon the trial court overruled the motion and rendered judgment against the defendant for $800.

The declaration is based upon the alleged violation by the defendant of sections 18a and 18b of the Mines and Miners Act, requiring the mine examiner to inspect all places where men are expected to pass or to work, and to observe whether there are any recent falls or obstructions in rooms or roadways, or other unsafe conditions; and further, to place a conspicuous mark at any working place discovered in which any dangerous condition is found to exist, and to at once report his finding to the mine manager. It alleges that at the time of the injury to plaintiff, a large amount of coal had accumulated under a certain curtain under which he was expected and required to pass, to such an extent as that it caused the curtain to rest upon the coal instead of hanging free and clear of the ground thereby rendering it likely that the mule driven by the plaintiff in passing under the curtain would step upon the curtain so lying on the coal, and be brought to an abrupt stop and thereby injure the plaintiff, thus creating a dangerous condition within the meaning of the statute; that the defendant wilfully failed and neglected to place a conspicuous mark at said dangerous place as notice to plaintiff and others to keep out until the same' had been made safe, and that in consequence of such wilful failure and neglect plaintiff was injured.

The evidence tends to show that plaintiff had been in the employ of defendant as a driver in its coal mine for aboüt two years; that for about ten days prior to the injury he had been driving through the cross-cut in which he .was injured; that in doing so it was necessary for him to drive under a certain heavy canvas curtain hung near the center of such cross-cut, which curtain was fastened to a cross-bar in the roof of the cross-cut and extended to within an inch of the track, the sides and bottom being unfastened; that during the time the plaintiff had been driving through the cross-cut in question, coal had accumulated upon the track under the curtain to a height of from four to six inches, and in the roadway outside of the track to the height of about twelve inches, and that such condition existed at the time he. was injured.

The plaintiff’s evidence further tends to show that during the time he had been driving through the crosscut he had observed its condition, and asked the boss driver to be permitted to clean up his run, but that neither he nor any one was on that occasion assigned for that purpose; that the mine examiner inspected the cross-cut about four o’clock a. m. on the day of the injury, but made no danger mark at or near the curtain nor did he make any report to the mine manager of any existing dangerous condition nor of any obstruction in- the roadway that during the early part of the afternoon on that day, the plaintiff, with four loaded cars of coal hitched to his mule, approached the curtain on a slig'ht down-grade; that the mule stepped on the end of the curtain, which being fastened at the top and held at the bottom by the weight of the mule, arrested the progress of the mule, and caused the loaded cars to jam forward by their own momentum, striking the plaintiff in the back, knocking him off the car, and grinding him between the sides of two of the cars and the rib of coal and so injuring him that he was confined to a hospital for forty-six days.

The evidence introduced by the defendant tends to show that while the dragging of the curtain in question over passing cars had caused some coal and slack to fall therefrom upon the track, there was but a small quantity at the place in question, and nothing unusual about the condition of the particular track as compared with its former condition or that of the tracks under similar curtains in the mine; that when the ^plaintiff reached the curtain the mule shied, as was his habit, and the light upon the plaintiff’s cap went out, causing the mule to stop abruptly; that it -had frequently done so before and that such habit of the mule was well-known to the plaintiff, and that his fall was the result of his failure, with such knowledge, to exercise proper care and caution. The decisive issues thus presented to the jury were whether or not the track under the curtain was in such condition as to constitute a dangerous place within the meaning of the statute, and whether or not such dangerous condition was the proximate cause of the plaintiff’s injuries.

Counsel for the plaintiff seeks to involve the rule that a verdict should not be set aside by a court of review where there is a contrariety of evidence, when the facts and circumstances, by a fair and reasonable intendment, will authorize the verdict, notwithstanding it may appear to be against the strength and weight of the testimony, and cites authorities in support thereof. Such rule is applicable only when the propriety of submitting the issues to the jury is involved. Where it is sought to disturb a verdict on the ground that the same is against the weight of the evidence, the rule referred to is clearly subject to the qualification that such verdict is not manifestly and palpably against the weight of the evidence. If it be so, the trial judge should promptly take the responsibility of setting aside the verdict, and a failure to do so would constitute error. Donelson v. Ry. Co., 235 Ill. 625. In the case at bar, while the evidence is close and conflicting and we should not hesitate thereunder to approve a verdict either way, we are unable to say that the findings of the jury that a dangerous condition existed at the time and place where the plaintiff was injured, and that such condition was the proximate cause of such injury, are so manifestly and palpably against the weight of the evidence that the trial judge should have set the same aside.

It is contended that the damages awarded are excessive. The testimony of the plaintiff’s physician shows that his injuries consisted of a sprained and bruised back, and slight laceration of his arm and leg, and that he had entirely recovered therefrom by May, 1910. He was injured in January and resumed work on the 1st of March following. There is no evidence that he paid or became liable to pay anything for necessary care and attention. It appears that the utmost he could have earned during the time he was disabled, was $160. It is insisted that the allowance of the difference between that sum and the amount of the judgment, for pain and suffering, which is as much as he could reasonably have earned in an entire year, is clearly excessive. The trial judge fixed the amount of the remittitur, and while at first blush the verdict appears to be unduly large, even after such remittitur, we cannot say that it is so grossly excessive as to warrant the requirement of a further remittitur or reversal of the judgment.

The judgment of the Circuit Court is affirmed.

Affirmed.


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    Lena M. Alexander, Appellee, v. Charles E. Alexander, Appellant.
    1. Service of process—when motion to quash properly denied. If an inspection of the record discloses no defect in the writ, its service or return, a motion to quash is properly denied. The proper method of attacking a return founded upon extrinsic matter, is by plea to the jurisdiction.
    2. Defaults—when denial of motion to set aside, not error. In the absence of abuse of discretion the action of the chancellor in refusing to set aside a default will not be disturbed. Such a- motion should be supported by an affidavit of merits which affidavit should set up facts showing a good defense.
    Separate maintenance. Appeal from the Circuit Court of Montgomery county; the Hon. J. C. MoBride, Judge, presiding.
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Hill & Bullington and Lane & Cooper, for appellant.
    Amos Miller, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is a bill for separate maintenance. A summons was issued against the defendant, returnable to the November term, 1909, of the Circuit Court of Montgomery county. It appears from the return of the sheriff that he executed said writ on October 12, 1909, by leaving a true copy thereof at the usual place of abode of the defendant, with his mother, a white person of the age of ten years and upwards and a member of the family of the defendant, and at the same time making known to her the contents thereof. A default was taken on November 2,1909. On November 10th, a hearing had upon the bill and a decree of separate maintenance entered. At the same term, on November 15,1909, the defendant, limiting his appearance for that purpose, moved to quash the summons and the return of the sheriff thereon, and to set aside all orders and decrees in the case. On April 21, 1910, the court denied said motion, and thereupon the defendant asked leave to withdraw his former motion, which was also denied, whereupon the defendant perfected an appeal to this court.

In support of said former motion, the defendant filed his own and other affidavits, tending to show that the summons was left at the home of his father and mother; that at the time he was not a member of their family, but had departed from the State. The affidavit of his mother was to the effect that when said summons was left with her, she refused to accept the same, and informed the sheriff that said defendant was not a member of her family. The complainant filed her own and other affidavits which tended to show that the defendant, at the time of the service of the summons, resided with his father and mother, and that about the time the summons was left at their residence he was seen in the vicinity.

The motion to quash the writ of summons and return thereon was properly overruled. An inspection of the record discloses no defect in the writ, its service or return. The objection urged was founded upon extrinsic matter and should have been raised by a plea to the jurisdiction, so that the question of fact as to whether the place in question was the usual place of abode could have been submitted to a jury for determination. The motion to set aside “all orders in the case,” which included the default and decree, was addressed to the sound legal discretion of the chancellor, and unless it appears that such discretion has been wrongfully and oppressively exercised, the action of the chancellor cannot be reviewed by this court. Culver v. Brinkerhoff, 180 Ill. 548. To warrant setting aside the default, it was essential that the affidavit of the defendant should show that the defendant had a good defense to the suit. While it states that “he had a meritorious defense to said suit,” it does not state any facts from whicli the chancellor could see that he had any substantial defense. The mere statement that he had a meritorious defense is a conclusion of law to be drawn from facts, and not the statement of fact. The affidavit should have stated the facts constituting his defense, so that the chancellor would have been enabled to draw his own conclusion of law. Culver v. Brinkerhoff, supra. It was also discretionary with the chancellor whether to allow the defendant to withdraw the motion to quash. We are of opinion that such discretion was not improperly exercised.

The decree of the Circuit Court is affirmed.

Affirmed.