author: Mr. Presiding Justice Fitch

text:
    Thomas Chvatal and Barbara Chvatal, Defendants in Error, v. Lev (Lion) Homestead Association, Plaintiff in Error.
    Gen. No. 19,863.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at ' the March term, 1914.
    Affirmed.
    Opinion filed April 22, 1915.
    Statement of the Case.
    Action by Thomas Chvatal and Barbara Chvatal against Lev (Lion) Homestead Association, a corporation, to recover the withdrawal value of stock of said Association owned by the plaintiffs. The Association claimed that a voucher for the amount due was issued to them and that they indorsed it over to the treasurer as a personal loan to him, which the plaintiffs denied. After the voucher was drawn the treasurer disappeared. From a judgment for two hundred dollars, defendant brings error.

      Abstract of the Decision.
    1. Building and loan associations, § 36

      —when recovery of withdrawal value sustained. An action against a building and loan association to recover the withdrawal value of stock, defendant averred payment by means of a voucher issued to plaintiffs, who had indorsed it to defendant’s treasurer as a personal loan, who in the meantime had disappeared, the evidence was held insufficient to sustain the defendant’s claim, the voucher having been lost, and there being no testimony as to the genuineness of the indorsement.
    2. Appeal and bbbob, § 479*—when objection necessary to instruction. Where the record shows that no objections of any kind were made to any part of the instructions, complaint cannot be made that the court erred in its oral instructions.
    Q. J. Chott, for plaintiff in error; Frank H. Culver, of counsel.
    Jones, Kerner & Posvic, for defendants in error; DeWitt C. Jones, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


source: Caselaw Access Project

license: Public Domain

text:
    E. Looney, Appellee, v. Oregon Short Line Railroad Company, Appellant. Lester C. Seawell, Appellee, v. Oregon Short Line Railroad Company, Appellant.
    Gen. No. 30,278.
    Gen. No. 20,279.
    1. Carriers, § 189

      —when connecting carrier liable under Gar-mack amendment on reshipment. In an action against a railway company to recover damages for the shrinkage in weight and depreciation in value of stock, shipped from one State to another over connecting lines, the shipper, under the Carmack amendment to the Interstate Commerce Act, is entitled to recover from the connecting carrier where such carrier, without any reference to the contract of the initial carrier, makes a new contract of shipment from the place of delivery to it, to which the shipper assents.
    2. Cabbiebs, § 107*—when evidence of reasonable running time admissible. Where in an action against a carrier for damages caused by delay in the transportation of stock, evidence as to the reasonable running time between the termini of the shipment was claimed to have been improperly admitted because the question did not show whether the witness was to include time consumed in feeding and watering, it was held that the evidence was properly admitted, the witness evidently having understood the question as including stops, and having in his answers made allowance therefor.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemhill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed April 22, 1915.
    John A. Sheean, for appellant.
    Charles A. Butler, for appellees; Franklin Raber, of counsel.

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

   Mr. Presiding Justice Fitch

delivered" the opinion of the court.

These two cases were tried together in the Municipal Court, and have been consolidated for hearing in this court. A verdict and judgment were rendered in the Municipal Court in each case against the appellant Railroad Company for damages resulting from the negligent transportation of sheep from Weiser, Idaho, to Chicago.

The two shipments were carried in the same train. The shipment of appellee Looney consisted of 3,849 “lambs,” and the Seawell shipment consisted of 2,588 sheep, of which 143 were yearling wethers, and the remainder were “lambs.” In accordance with the custom in such cases, and in compliance with the federal statute requiring live stock to be unloaded, fed and watered at intervals of from twenty-eight to thirty-six hours along the route, the sheep were unloaded for that purpose at Pocatello, Idaho, at Rawlins and Laramie, Wyoming, at Grand Island, Nebraska, and at Rochelle, Illinois. There is evidence tending to prove that on account of unusual delays at one or more of these stopping places, and on account of the lack of sufficient feeding and watering facilities at several of them, there was an abnormal shrinkage in weight and a material depreciation in the value of the sheep during the journey. There is also evidence tending to refute this theory. Upon the questions of fact involved, we cannot say that the verdicts are manifestly contrary to the weight of the evidence.

It appears from the evidence that both shipments were first loaded into cars for transportation to Chicago at a station named Evergreen, upon the line of the Pacific & Idaho Northern Railway Company, seventy-six miles from Weiser. That company issued to each shipper at that time a printed form of receipt or bill of lading entitled: “Limited Liability Live Stock Contract,” containing many provisions, limitations and conditions. Each of these contracts recites that the shipper has delivered to the railway company a specified number of cars of sheep, consigned to the shipper “at Chicago, Illinois, via C. & N. W., to be transported upon the conditions hereinafter set forth over the line of Pacific and Idaho Northern Railway Company, to Weiser (insert only a station on the P. & I. N. Ry.) and there delivered to the consignee, owner or order, or to such company or carrier (if the stock is to be forwarded beyond said station) whose line may be considered a part of the route to destination.” It also appears from the evidence that when the train arrived at Weiser these contracts were surrendered and new receipts or contracts, in practically the same form and containing the same conditions and limitations, were issued to the shippers by the appellant Company.

It is conceded by all the parties that their respective rights and liabilities are fixed by the federal statute commonly known as the Carmack amendment to the Interstate Commerce Act, but counsel disagree as to the practical effect of that act when applied to the facts above stated. The Carmack amendment provides, in part, as follows: “That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor, and shall be liable to- the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose line or lines such property may pass; and no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” Following this clause is a provision that the common carrier issuing such receipt or bill of lading shall be entitled to recover from the carrier upon whose line such loss or damage occurs, the amount the former may be required to pay for such loss or damage, as evidenced by any receipt or judgment therefor.

Appellant contends that the liability created by that portion of the statute above quoted in favor of the holder of a bill of lading of an interstate shipment of property is imposed upon the “initial” or “primary” carrier only, and not upon any succeeding or connecting carrier; and in view of the admitted fact that the sheep here in question were first delivered by appellees to the Pacific & Idaho Northern Railway Company at Evergreen, Idaho, for transportation to Chicago, appellant contends that it is not liable to appellees for the damages recovered in these cases, notwithstanding the execution of the second contract by it when it received the sheep at Weiser.

The Carmack amendment has been construed by the Supreme Court of the United States in a number of cases, the most important, perhaps, of which are the following: Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186; Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481; Adams Exp. Co. v. Croninger, 226 U. S. 491; Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639. It has also been considered by the Supreme Court of this State in several cases, the latest of which, so far as we are advised, is Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400. The following quotation from the opinion filed in that case expresses, in a paragraph, the view of both courts regarding the relations that exist between the first carrier, and the succeeding carriers in cases of interstate shipments of property, since the passage of the Carmack amendment: “In Galveston, Harrisburg and San Antonio Railway Co. v. Wallace, 223 U. S. 481, it was held that under the Carmack amendment whenever a carrier accepts goods for shipment to a point on another line in another State it is conclusively treated as having made a through contract ; that it thereby elects to treat the connecting carrier as its agent and must be treated as though, the point of destination was on its own line.” (Italics ours.)

Under this interpretation of the Carmack amendment, it is undoubtedly true that when the Pacific & Idaho Northern Railway Company received the sheep of appellee at Evergreen, Idaho, for transportation to Chicago, Illinois, that company was the principal contracting carrier, and all the subsequent carriers were merely its agents. It is also true that this relation of principal and agent continued to exist between the Pacific & Idaho Northern Railway Company and appellant up to the time the sheep were turned over by the former to the latter at Weiser. And if, thereafter, the appellant Company, had been content to occupy the position of a connecting carrier merely, and to act as such in handling these shipments beyond Weiser, it is quite as clear that its liability under the Carmack amendment in such case would have been limited to the liability of an agent of the first carrier, that is, to the amount of any loss or damage occurring upon its own line.

For some reason not disclosed by the evidence, appellant did not choose, however, to remain in the position of an agent of the Pacific & Idaho Northern Railway Company, after it received appellees’ sheep at Weiser, but, on the contrary, wholly ignoring the contracts of appellees with the first carrier, appellant elected to put itself in the position of a first or principal carrier of these shipments from Weiser on, by making new contracts with appellees, precisely as though the sheep had not been first delivered to another carrier, but had been driven on foot to Weiser and there loaded for the first time into appellant’s cars for transportation to Chicago. These new contracts make no mention of any prior contract. There is no reference in them to the fact that the sheep were delivered to appellant by another carrier. They state “that the said shipper has delivered” to appellant certain sheep, consigned to a specified consignee at Chicago, to be transported over the line of appellant to Granger (Wyoming) and there delivered “to such company or carrier whose line may be considered a part of the route to destination.” By its own act in executing these contracts, appellant .signified its intention not to handle these shipments merely as an agent of the Pacific & Idaho Northern Bailway Company, but to act upon its own responsibility and treat the shipments as having originated at Weiser. Having thus voluntarily placed itself in the position of a primary or initial carrier with the acquiescence of appellees, we think it cannot now be heard to assert that it acted only as the agent of the Pacific & Idaho Northern Bailway Company with respect to these shipments.

Appellant’s counsel relies mainly upon the cases of Aton, Piano Co. v. Chicago, M. & St. P. Ry. Co., 152 Wis. 156, and Atchison, T. S S. P. Ry. Co. v. Word, 159 S. W. 375, and Missouri, K. & T. Ry. Co. v. Ward, 169 S. W. 1035, decided by the court of Civil Appeals of Texas, as supporting his contention. We do not regard the cases as in point. In none of them was the question here involved presented or discussed. In each of them the carrier first receiving goods for interstate transportation, when sued by the shipper or holder of a bill of lading issued by it, attempted to absolve itself from the liability .imposed by the Car-mack amendment by showing that it had delivered the goods in good order to a connecting carrier, who had issued a second bill of lading for the same; and it was held, in substance, that the duties and liabilities of the parties, under the Carmack amendment, were fixed by the act of the first carrier in accepting the goods for interstate transportation, and that such duties and liabilities could not be affected by the making of a second contract with a connecting carrier. In each of such eases, the owner of the goods was standing squarely upon the original contract of carriage, and was insisting that the connecting carrier could not lawfully change that contract without his consent. In the present cases, the owners are not asserting any liability upon the original contract—which was in fact surrendered—but are standing upon the contracts executed, with their consent, by the connecting carrier, so far as the terms and conditions thereof are not inconsistent with the provisions of the Carmack amendment. None of the cases cited holds that there is anything in the Carmack amendment that prevents an owner from entering into a new contract with a connecting carrier, by which, in effect, the connecting carrier becomes the initial carrier in a new shipment, beginning with the delivery of the goods to the connecting carrier. It is one thing to hold that an initial carrier cannot avoid its liability under the Carmack amendment by proving the execution of a second bill of lading by a connecting carrier, when such second bill is issued without the consent of the owner of the goods, and quite a different thing to hold that the second carrier may avoid liability as an initial carrier, when, with the owner’s consent, it has voluntarily assumed the duties and liabilities of an initial carrier.

It is to be noted that the words “initial” and “primary” carrier are not found in the Carmack amendment. The liability imposed by that act is imposed upon “any common carrier, railroad or transportation company receiving property for transportation from a point in one State to a point in another State.” Under ordinary circumstances, this means the carrier first receiving the goods, and in cases where such was the fact the words “initial” or “primary” carrier have been used by the courts to distinguish such a carrier from a succeeding or connecting carrier. The act provides that no contract, receipt, rule or regulation shall .exempt any carrier receiving'property for interstate transportation from the liability of a through carrier; but it does not provide that a connecting carrier receiving property for interstate transportation may not, with the consent of the owner, treat the shipment as beginning at the point where it receives the property from another carrier, and thereby assume the liability imposed by the Carmack amendment.

We conclude, therefore, that the court did not err in overruling the several motions and numerous objections of appellant based upon the view of the law contended for by appellant’s counsel.

It is also urged that the court erred in admitting evidence, over appellant’s objection, as to the reasonable running time between Weiser and Bockelle and Chicago. The objection made to this evidence ab the time was merely that it was incompetent, irrelevant and immaterial, and that no proper foundation had been laid. The objection here made is that the questions put to the witness did not show whether the witness was expected to include in his answer the time ordinarily consumed in feeding and watering the stock at the several stations provided for that purpose. We think there was no error in the ruling, for the reason that the Federal statutes require stock to be unloaded for the purpose of feeding and watering the same at intervals of from twenty-eight to thirty-six hours, and it would naturally be assumed that all ordinary, reasonable stops for that purpose were included in the reasonable running time of such a train from Weiser to Chicago. The witness evidently so understood the question, for he testified that he included four of such stops in his answer as to the reasonable running time between Weiser and Chicago.

The point made that the claims were not presented within the time limited by the contracts seems not to be supported by the evidence, as claims were in fact made within ten days from the time the sheep arrived at destination.

Several other minor objections are urged. We have carefully considered the same and think they are without merit.

For the reasons indicated, the judgments of the Municipal Court will be affirmed.

Affirmed.


text:
    Harty Brothers & Harty Company, Appellee, v. Carden-Callahan Company, Appellant.
    Gen. No. 20,303.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed April 22, 1915.
    Statement of the Case.
    Action by Harty Brothers & Harty Company, a corporation, against Carden-Callahan Company, a corporation. The defendant entered into a contract with the city of Chicago to construct a fire engine house and sublet all the mill work to the plaintiff to be delivered by June 15, 1912. The plaintiff made all deliveries after that date, the last delivery on September 27, 1912. The contract price was sixteen hundred and fifty dollars. Defendant made a payment on the account and refused to pay the balance. Plaintiff brought suit for the remainder with interest. Defendant’s defense was that it had sustained damages to an amount exceeding the amount claimed by the plaintiff on account of its delay in furnishing material. Verdict for plaintiff on this issue for full amount of claim and judgment. Defendant appeals.
    Abstract of the Decision.
    1. Contracts, § 300

      —when must be performed after waiver of time. Even though the time limit specified in a subcontract for the furnishing of materials is waived, the duty is imposed upon the subcontractor to complete his contract within a reasonable time thereafter.
    2. Contracts, § 390*—when time for performance question for jury. What is a reasonable time for the completion of a contract, the time limit specified in the contract being waived, is a question for the jury.
    3. Contracts, § 300*—when refusal of instruction on damages for unreasonable delay erroneous. Where in an action to recover the value of materials furnished by a subcontractor, the time limit for the furnishing of which was waived, the defendant claimed that plaintiff’s delay in furnishing the material caused it damages in excess of the balance claimed.by plaintiff, and defendant’s evidence tended to show unreasonable delay after the waiver of delivery within the time specified, refusal to instruct that defendant was entitled to recover damages caused hy plaintiff’s unreasonable delay following the time limit specified in the contract was erroneous.

      M. F. Gallagher, for appellant; E. B. Wilkinson, of counsel.
    Bulkley, Gray & More, for appellee.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

4. Building and construction contracts, § 63 —when contract complied with as to architect’s certificate. Where a contract provides that payment should be made “on the basis of 85% of the value of labor and material delivered and in place, as allowed by the architect’s certificates,” and the only certificate shown was that of the city architect, which did not show the “value of labor and material delivered,” there is no evidence of a failure to make payment as per contract.


text:
    R. A. Weigel, Appellee, v. The W. C. Reebie & Brother Company, Appellant.
    Gen. No. 20,320.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed April 23, 1915.
    Statement of the Case.
    Action by R. A. Weigel against The W. C. Reebie & Brother Company, a corporation, to recover the value of goods burned, on the theory that the defendant had broken its contract to store goods in a fireproof room, by placing them in a room with wooden walls, and that the proximate result of such breach was a total loss of the plaintiff’s goods by fire. A verdict was rendered in favor of plaintiff for four hundred and fifty dollars, and from a judgment entered on that verdict the defendant appeals.

      Abstract of the Decision.
    1. Warehousemen, § 6

      —when liable for damage to property not stored in fireproof room. Where a warehouseman who expressly contracts to store goods in a fireproof room in a warehouse, selected because of its supposed immunity from fire, stores them instead in a room that is not of that character, which subjected them to a risk not contemplated by the parties, he is liable for the resulting loss by fire.
    2. Warehousemen, § 1*—what is effect of holding out as. One who holds himself out to the public as operating a warehouse, and whose representation is acted upon in good faith by one who contracts to store his goods in such building, is liable in case of loss to the goods, the same as if he were operating it.
    3. Corporations, § 506*—when ultra vires must be pleaded. The defense of ultra vires can be set up by a corporation only when it has been by it specially pleaded.
    4. Warehousemen, § 6*—when contract as to storage in fireproof room not waived. Where one contracts with a warehouseman to store goods in a fireproof room, knowledge upon his part, that the warehouseman has stored the goods elsewhere does not constitute a waiver.
    William English, for appellant.
    Francis X. Busch and Albert Schaffner, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    John K. Joice, Appellee, v. Lydia Norman, Appellant.
    Gen. No. 20,337.
    Abstract of the Decision.
    1. Appeal and error, § 1414

      —when findings not disturbed. In an action by a real estate broker for commissions, where the evidence as to the nature of the agreement is conflicting, if the court is unable to say that the finding of the trial court is against the weight of the evidence, its findings will not be disturbed.
    2. Brokers, § 40*—when entitled to commission though principal refuses to execute contract. A broker, employed by the owner to sell property, is entitled to his commissions when he produces a purchaser, within the time limited hy his authority, who is ready, willing and able to purchase the property upon the terms proposed by the seller, even though the seller refuses to execute a contract on the ground that her husband declined to join with her.

      (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed April 22, 1915.
    Statement of the Case.
    Action by John K. Joice against Lydia Norman for the value of services rendered in negotiating the sale of real estate belonging to the defendant. On a trial before the court without a jury the court found that the plaintiff produced a purchaser within the time limited, who was ready, willing and able to purchase on the terms proposed, but that the defendant refused to sign the contract, and rendered judgment for the plaintiff for sixteen hundred and fifty dollars. Defendant appeals.
    William Annan Taylor and Hugh R. Porter, for appellant.
    Harry A. Biossat, for appellee.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

3. Municipal Court of Chicago, § 27*—when exception to judgment must be shown. Where the bill of exceptions in a first-class case in contract tried in the Municipal Court without a jury fails to show an exception to the judgment, the Appellate Court will not review the evidence nor determine questions of fact.


text:
    May T. Cox, Appellee, v. Frederick W. Cox et al., on appeal of Elizabeth Jacobs, Appellant.
    Gen. No. 20,349.
    1. Husband and wife, § 255

      -—where separate maintenance proceeding to be brought. In separate maintenance proceedings where the husband is a resident of the State, section 2 of the Separate Maintenance Act (J. & A. U 6160) determines the county in which suit must be brought, but where he is a nonresident, Chancery Act, sec. 3 (J. & A. If 883) controls.
    2. Husband and wife, § 265*—when no personal decree permissible in separate maintenance proceedings. In proceedings for separate maintenance where no personal service is had upon a nonresident defendant, and he does not enter his appearance therein, no personal decree can be entered against him.
    3. Husband and wife, § 255*—when court may proceed in rem in separate maintenance proceedings. In separate maintenance proceedings "where no personal service is had upon a nonresident, nonappearing defendant, but property owned by him, is found within the jurisdiction of the court, the court has power to proceed in rem by requiring such property to bear the obligation of defendant to provide for the support and maintenance of his wife.
    4. Husband and wife, § 265*—when insurance fund may be subjected to payment of alimony. In separate maintenance proceedings against a nonresident, nonappearing defendant, upon whom no personal service has been had, the court may by decree make proper allowance for the support and maintenance of the wife and subject a fund in the hands of an insurance company over whom jurisdiction had been obtained, owned by the defendant under the terms of a twenty-year tontine policy, to the payment of the amount allowed.
    5. Husband and wife, § 265

      —form, of decree in rem, in separate maintenance proceeding. Where in a separate maintenance proceeding against a nonresident, nonappearing defendant, upon whom personal service had not been had, the court after making a decree for support proceeds in rem against property owned by defendant within its jurisdiction, the decree should be in the nature of the usual foreclosure decree, finding the amount due, and directing that if such amount be not paid within a specified time, the property will be sold to satisfy the decree, and such a decree is in rem and not in personam.

    6. Husband and wife, § 265*—when decree in separate maintenance proceeding is in rem. Even though a decree in separate maintenance proceedings against a defendant over whom personal jurisdiction was not acquired, in terms orders the defendant to pay the amount found to be due to the complainant within a specified time, or, that in default thereof, the property of defendant, over which the court had acquired jurisdiction, be sold to satisfy the same, the alternative feature of the decree preserves its character as a decree in rem.

    7. Husband and wife, § 241*—when decree in separate maintenance proceedings erroneous as not based on evidence. A decree in separate maintenance proceedings awarding a certain sum to complainant for her support and maintenance is erroneous where no evidence was introduced as to the present “condition in life” of the husband, or his present means or ability to 'pay alimony.
    8. Husband and wife, § 242*—when decree in gross erroneous in separate maintenance proceedings. A decree in separate maintenance proceedings awarding a certain sum in gross to complainant for her support and maintenance is erroneous.
    9. Appeax, and error, § 1039*—when assignee of insurance policy may assign error. Where in a separate maintenance proceeding, against a nonresident defendant over whom personal jurisdiction had not been acquired, complainant joined as parties defendant an insurance company, and the assignee of an insurance policy upon the life of defendant, such assignee is entitled to assign error upon a decree awarding the fund to complainant, and such an assignment necessarily involves a consideration of the validity of that portion of the decree upon which the right of complainant to the fund is based.
    10. Husband and wife, § 265*—when decree in separate maintenance not sustained on theory that complainant was a creditor. In separate maintenance proceedings against a nonresident defendant over whom personal jurisdiction was not acquired a decree awarding complainant in gross a fund in the hands of an insurance company under the terms of a twenty-year tontine policy upon her husband’s life without evidence as to his means or condition in life, cannot be sustained upon the theory that complainant was a creditor of her husband merely because on a prior suit for limited divorce in another State a monthly allowance of temporary alimony had been made in her favor, payment of which had ceased upon a reconciliation being effected, especially where the bill' was not framed upon that theory and the decree does not find anything due her on account thereof.
    11. Insurance, § 503

      —when interest of beneficiary ceases in twenty-year tontine policy. Under a twenty-year tontine policy, by the terms of which a certain sum was payable to the beneficiary upon due proof of the death of the insured “during the continuance of this policy,” and providing further that the insured if living at a certain date should be entitled to receive, in cash, the value of the policy at that time, the interest of the beneficiary ceases upon the expiration of such period, the insured still surviving.
    12. Insurance, § 180*—what are rights of assignee of twenty-year life policy. An assignment without consideration of a twenty-year tontine policy prior to the date when it matures conveys a contingent future interest only, subject, in equity, to the right of the wife of the insured, who was also the beneficiary named in the policy, to have a reasonable provision made for her support and maintenance.
    13. Insurance, § 180*—what are rights of assignee as against wife of insured in separate maintenance proceedings. Where prior to the expiration of a twenty-year tontine policy which the insured had assigned to a third person as a gift, the beneficiary thereunder, who was the wife of the insured, commenced separate maintenance proceedings against the insured, joining the insurance company and the assignee as parties defendant, such assignment does not prevent the court from subjecting the fund to the payment of a reasonable allowance for the support and maintenance of complainant while living s'eparate and apart from her husband and without her fault.
    Appeal from the Circuit Court of Cook county; the Hon. Jessb A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 22, 1915.

      Statement by the Court. On January 13, 1913, Mrs. May T. Cox, appellee, filed her bill in the Circuit Court of Cook county against her husband, Frederick W. Cox, for separate maintenance. The bill charged him with extreme and repeated cruelty, adultery and desertion. Following these charges, the bill alleges that he has a joint interest with her in two lots in Milwaukee, Wisconsin, valued at $5,000, and is also possessed of a life insurance policy issued by the New York Life Insurance Company for $5,000, in which she is named as the beneficiary, and which, by its terms, “will mature on November 20, 1913.” The bill prays for summons against Frederick W. Cox and the life insurance company, an injunction to restrain the former from disposing of the property named, and an injunction against the latter to restrain it from paying over to Frederick Cox or his assigns any of the moneys dne on the insurance policy. An affidavit of the nonresidence of the defendant, Frederick W. Cox, was filed and service upon him was had only by publication.
    On September 16, 1913, an amendment to the bill was filed, stating that information had just come to the complainant that Frederick W. Cox had made a pretended assignment of the life insurance policy to his sister, Elizabeth A. Jacobs, without any consideration, and “in order to further cheat and defraud complainant out of her just rights.” The amendment makes Elizabeth Jacobs a party to the bill of complaint, and prays that she be enjoined from transferring the policy, that the assignment to her by Frederick Cox be set aside, and that the insurance company be directed to pay whatever may be due on the policy to the complainant.
    A default was entered against the defendant, Frederick W. Cox, and the bill as to him was taken as confessed. The life insurance company answered the hill on September 26, 1913, admitting that it had issued a policy upon the life of Frederick W. Cox, “that the twenty-year tontine dividend period of said policy will be completed November 20, 1913, and that the total value of said policy may be withdrawn in cash on and after that date;” also that the policy names “May T. Cox, wife,” as the beneficiary, “with reversion to the insured.” The answer further states that on November 30, 1910, the insured notified the insurance company in writing that he elected to receive the value of the policy in cash at the end of the “twenty-year accumulation period,” to wit, November 20, 1913; also that On July 11, 1911, the insured had assigned the policy to Elizabeth A. Jacobs, which assignment the company had received subject to the condition that it did not accept any responsibility for the validity of such assignment.
    Elizabeth A. Jacobs also answered the bill, setting up the same facts with reference to the insurance policy, asserting that the assignment to her was bona fide and for a good consideration, and claiming to be the rightful owner of the policy and its proceeds. The answer denies that Frederick W. Cox has any interest in the policy or its proceeds, and avers that the court has no jurisdiction over either the person or property of Frederick W. Cox in this proceeding. It also claims that by the terms of the policy, if Frederick Cox is alive on November 20, 1913, she will be entitled to receive the cash value of the policy, and that the rights of May T. Cox will wholly cease on that date. (It was conceded, on the trial, that Frederick W. Cox was living on that date, in Hong Kong, China.)
    Upon the hearing before the court the complainant gave evidence tending to support the allegations of the bill as to the separation of the complainant and principal defendant, and the causes for such separation, and also testified to the situation and value of the Milwaukee real estate. As to these matters, there was no contest. The only defense that was made hy any one was made hy Mrs. Jacobs as to the ownership of the life insurance policy and its proceeds. As to this question, the evidence tends to prove that twenty annual premiums of $13 each were paid on the policy; that the complainant paid the first ten premiums “out of her allowance;” that the succeeding nine premiums were paid by the defendant, Frederick W. Cox; that the last of the twenty was paid by Mrs. Jacobs, in November, 1912, out of money sent to her for that purpose by the defendant, Frederick W. Cox; that on November 20, 1913, there was due on the policy the sum of $2,241.45; that in November, 1910, Frederick W. Cox notified the insurance company in writing that he elected to take the value of the policy in cash at the end of the twenty-year period; and that in July, 1911, he assigned all his interest in the policy to Mrs. Jacobs.
    Upon this evidence, the court found that the complainant was entitled to a decree for separate maintenance; that the defendant Frederick W. Cox had title to an undivided half interest in the two Milwaukee lots; and that the assignment of the life insurance policy to Mrs. Jacobs was a mere gift, without consideration, and as against the complainant was void. Thereupon a decree was entered adjudging “that the complainant have the right to separate maintenance as provided by the statutes of the State of Illinois;” that a special master in chancery therein named and appointed “execute a deed to the complainant” of all the interest of Frederick W. Cox in the above mentioned real estate; and that the New York Life Insurance Company “be decreed to pay for the separate maintenance of said complainant, to her or her order, the sum of $2,000, out of the money now due on said policy.” There is no other provision of any kind in the decree relating to alimony. From this decree, Elizabeth A. Jacobs appeals.
    Thomas J. Peden, and Roy C. Merrick, for appellant.
    William E. Mason and Lucius W. Bestel, for appellee.

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

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Appellant contends that the court had no jurisdiction, in the absence of personal service of process upon the defendant, Frederick W. Cox, or any appearance by him, to render any decree having the practical force and effect of a personal decree against him for the payment of alimony, nor to render any decree affecting lands in another State; that in a separate maintenance proceeding an award of property or money in gross for the support and maintenance of a complainant is erroneous; that in any event, the award here made for that purpose is excessive; and that Frederick W. Cox had full power to assign as a gift to his sister all his interest in the life insurance policy and the proceeds thereof, without the consent of his wife, “the contingent beneficiary,” because her interest therein ceased at the expiration of the “accumulation period.”

The first section of the Separate Maintenance Act, as amended in 1891 (Hurd’s Stat. 1912, ch. 68, sec. 22, J. & A. ¶ 6159) gives to a wife who, without her fault, is living separate and apart from her husband, a “remedy in equity, * * * for a reasonable support and maintenance, while they so live or have so, lived separate and apart.” The second section provides that suits for separate maintenance shall be instituted in the county where the husband resides, except that in case the husband abandons the wife without fault on her part, and removes to another county in this State, then suit may be brought “either in the county where they resided at the time of such abandonment as aforesaid, or in the county where the husband resides at the time of the commencement of such suit.”

In MacKenzie v. MacKenzie, 238 Ill. 616, it was held that these sections of the statute determine in what county or counties a separate maintenance suit may be brought when the husband is a resident of Illinois, but that when he is a nonresident, section 3 of the Chancery Act (J. & A. ¶ 883) controls. That section provides that if the defendant is a nonresident, suit may be brought in any county of the State. Under this construction of the separate maintenance Act, the jurisdiction, practice and procedure of a court of equity in such cases are practically the same as in suits for divorce. (See section 6, ch. 40, R. S., J. & A. ¶ 4221.)

In Proctor v. Proctor, 215 Ill. 275, it was held that where there is no personal service upon a defendant in a divorce case, and no appearance by him, the court is without jurisdiction to enter a personal money decree against him for the payment of alimony, solicitor’s fees or court costs. The principle upon which that case was decided is stated as follows in the opinion of the court: “In so far as the proceeding at bar related to the marital relation and its dissolution the proceeding is regarded as one in rem, and the court was warranted in entering its decree dissolving the same. But the court could go no farther. It could not enter any binding decree in personam against plaintiff in error.”

In the later case of Williams v. Williams, 221 Ill. 541, which was a bill in equity filed by a resident against Ms nonresident partner to compel the adjustment of a partnersMp account, and to require the defendant to convey to the complainant his share of certain real estate located in this ■ State, the title to which was in the defendant, it was contended that the court was without jurisdiction to grant the relief prayed for in the absence of personal service upon the nonresident defendant or an appearance by him. To this contention the court replied: “The property of the co-partners was located in this State, and the court had ample authority to deal with that property. The effect of the decree was to require the conveyance of one-half of the lots belonging to the partnership to the complainant, and to direct that the amount found due the complainant should be made out of the undivided one-half of said lots, the title of which remained in the defendant. While the court was powerless to enter a personal decree against the defendant, it had power to deal with the partnersMp property situated in this State. The decree was. not void, therefore, for want of jurisdiction.” (Italics ours.)

From these decisions it follows that in proceedings for separate maintenance, as in other proceedings in equity, if no personal service is had upon a nonresident defendant, and he does not enter his appearance therein, no personal decree can be entered against him; but in such case, if any property belonging to such defendant is found within the jurisdiction of the court, the court has full power to proceed in rem by requiring such property to bear the obligation of the defendant to provide for the support and maintenance of Ms wife; and such decree will be as binding upon the defendant and all' parties claiming through or under him, so far as his or their right to such property is concerned, as if he had been personally served with process. Therefore, while the Circuit Court had no jurisdiction in this case to enter a personal decree against the defendant, Frederick W. Cox, for the payment of alimony, it had full jurisdiction to enter a proper decree finding the amount that would be a reasonable provision for the support and maintenance of the complainant while living separate and apart from her husband, and to subject the fund in the hands of the insurance company, by a proper order,in case it found such fund to belong to the husband, to the payment of such alimony. The usual decree in a foreclosure suit, finding the amount due and directing that if such amount be not paid within a specified time the property mortgaged shall be sold to satisfy the same, is an illustration of the proper kind of an order to be entered in such case. Such a decree is not a decree in personam, but is a decree in rem. Kirby v. Runals, 140 Ill. 289; Crawford v. Nimons, 180 Ill. 143; Shaffner v. Appleman, 170 Ill. 281, Even if the decree in terms orders the principal defendant to pay the amount found to be due to the complainant within a specified time, or that in default thereof, the property of such defendant be sold to satisfy the same, the alternative feature of such a decree preserves its character as a decree in rem, and does not make it a personal money decree against the defendant. Kirby v. Runals, supra; Roberts v. Flatt, 142 Ill. 485; Bumgartner v. Hall, 163 Ill. 136; Pierce v. Coryn, 139 Ill. App. 445.

The decree in this case, however, is of .an entirely different character, both in form and substance. There is no finding that the principal defendant owes the complainant anything, or that he ought to pay her any sum of money for alimony or for any other purpose. The decree arbitrarily orders the insurance company to pay $2,000 of the fund in its hands to appellee, or her order, “for the support and maintenance of said complainant.” If, by this part of the decree, the court intended to find and adjudge that app ellee is entitled to receive from her husband $2,000 at this time for her support and maintenance, such portion of the decree is erroneous for two reasons: First, there is no evidence to support the finding; and second, it is improper in any case to award a sum in gross to a complainant in a separate maintenance proceeding. The separate maintenance statute provides that “in determining the amount to be allowed, the court shall have reference to the condition of the parties in life at the place of residence of the husband, and the circumstances of the respective cases.” No evidence was introduced as to the present “condition of life” of the husband, or his present means, or his present ability to pay alimony, except that he is (or was several years ago) a man accustomed to receive a large salary, that he owns a half interest in two lots in Milwaukee, and that the life insurance company owes, either to him or his" sister, the sum of $2,241.45. Whether he is possessed of anything apart from this property, or whether he is now earning anything, does not appear. In the absence of such evidence, it certainly cannot be assumed that in order to provide appellee with a reasonable support and maintenance while she continues to live separate and apart from her husband, it is or will be necessary to turn over absolutely to appellee, “or her order,” practically all of this property. It has been held at least twice in this State that it is reversible error to make an allowance of alimony in gross in a case of this character. Hunter v. Hunter, 121 Ill. App. 380; Raab v. Raab, 150 Ill. App. 554. The reasons for this rule are fully stated in those decisions, and we think they are fully applicable to the facts of this case.

It is urged by appellee’s counsel that appellant has no such interest in the question of separate maintenance, or in the disposition of the Milwaukee real estate, 'as to entitle her to question the findings and decree of the court as to those matters. Conceding this to be true, appellant is certainly directly interested in the disposition of the fund in the hands of the life insurance company, which she claims as her own. For this reason, she has the undoubted right to assign error upon the finding’s and decree with reference to that fund; and in view of the fact (as hereinafter shown) that appellee’s only right to any part of such fund is the right to have the same subjected to the payment of alimony after such alimony has been found to be due and owing to her, it follows that such an assignment of error necessarily involves a consideration of the validity of that part of the decree upon which such right of appellee to the fund is based.

Appellee’s counsel further maintain that the order for the payment of $2,000 to appellee can be sustained upon the theory that appellee is a creditor of Frederick W. Cox. This claim has its supposed basis in the following facts: Mrs. Cox testified that in 1909 she instituted a suit for “limited divorce” against her husband in Pittsburgh, Pennsylvania, and that she was allowed $100 a month alimony in that case. Apparently this was an allowance for temporary alimony, and she testified that she received the allowance for eleven months. She also testified, however, that in 1910, about the time the case came on for trial, Mr. Cox became ill with typhoid pneumonia, and “begged her to forgive him,” making certain promises which, she said, he afterwards failed to keep. She testified that she nursed him through his illness, and when he recovered, she went with him to Baltimore to live, where, not long after, they again separated. The inference naturally is that the divorce suit was dropped. The decree or order for alimony entered in the Pittsburgh case was not offered in evidence. That it is, or was at the time this case was tried, a subsisting order or decree for the payment of alimony to Mrs. Cox is inconsistent with her evidence as to what occurred subsequent-to the entry of such order or decree, and moreover, the bill in this case is not framed on any such theory. The decree in this case does not find that anything is due to appellee under the Pittsburgh decree, nor is there any evidence to sustain the theory that she was a creditor of her husband at the time this suit was brought.

Appellant finally claims that the court erred in finding that the assignment of the insurance policy to her by Frederick W. Cox was void as to appellee. It is contended that he had full power to-assign to appellant, his sister, even without consideration, and as a pure gift, all his interest in the life insurance policy and the proceeds thereof, without the consent of bis wife, because all her interest therein ceased at the expiration of the “accumulation period.” This contention seems plausible, but we think it is fallacious. By the terms of the policy, the sum of $5,000 is payable to appellee upon due proof of the death of her husband during the continuance of this policy. ’ ’ The meaning of this limitation is apparent from the further provision that if he is alive on November 20, 1913, and if all the premiums shall have been paid up to that time, he shall be entitled, at his option, to receive in cash the value of the policy at that time, such option .to be exercised by giving notice in writing to the company prior to November 20, 1913. Appellee’s rights as beneficiary, therefore, ceased on November 20,1913, and thereafter the proceeds of the policy belonged to her husband, or his assignee. Before that time arrived, however, this suit was brought; and. the service of process upon the insurance company, followed by its answer admitting the possession of a fund belonging to him, or his assignee, brought the fund under the jurisdiction of the court. Conceding that he had the right to assign his interest in the policy to his sister in July, 1911, such assignment at that time was an assignment of a contingent future interest only. If, as the evidence seems to show, this assignment was a pure gift, and appellant paid nothing for it, it certainly could not be given the effect in a court of equity of transferring to the assignee any greater right to the fund than the assignor himself possessed; and as his right to the fund at the time it was due, November 20, 1913, was subject, in equity, to the right of appellee to have a reasonable provision made for her support and maintenance, appellant’s right to the fund is subject to the same burden.

We conclude, therefore, that the mere fact that the interest of Frederick W. Cox in the fund now in the hands of the insurance company was assigned by him to appellant in July, 1911, without any consideration therefor, does not prevent the Circuit Court from subjecting such fund to the payment of a reasonable allowance for the support and maintenance of appellee while living separate and apart from her husband without her fault; but the amount of such allowance must first be determined from proper evidence as to the circumstances of the husband and wife, and must not be a sum in gross, but be payable at stated periods during the continuance of their separation.

For the reasons indicated, the decree of the Circuit Court will be reversed and the cause remanded for further proceedings not inconsistent with the "views herein expressed.

Reversed and remanded,


author: Mr. Presiding Justice Pitch

text:
    William J. Lemp Brewing Company, Defendant in Error, v. Alliance Assurance Company, Ltd., Plaintiff in Error.
    Gen. No. 20,610.
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 26

      -—when stenographic report not filed in time. Under the Municipal Court Act, sec. 23, par. 6 (J. & A. ¶ 3335) providing for the signing and filing of a stenographic report upon application made within thirty days after the entry of a final order or judgment, “or within such further time as may, upon application therefor within said thirty days, be allowed by the court,” where judgment was entered May 23rd and on the same day an order was entered extending the time for filing the stenographic report to August 31st, a further order entered on stipulation August 7th, extending the time for filing the report to September 8th, is void.

      (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Stenographic report stricken and judgment affirmed.
    Opinion filed April 22, 1915.
    Statement of the Case.
    Action by William. J. Lemp Brewing Company, a corporation, against Alliance Assurance Company, Ltd., a corporation, for loss by fire on policy of insurance. In its affidavit of merits, defendant stated an appraisement by disinterested appraisers, as provided for in the policy; and an offer to pay the amount appraised. In an affidavit of reply, plaintiff denied notice of selection of appraisers or of the time appraisement would be made, and stated that he was not given an opportunity to be heard. Verdict for plaintiff and judgment on the verdict.
    George D. Wellington, for plaintiff in error.
    Thompson, Tyrrell & Chambers, for defendant in error.

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

   Mr. Presiding Justice Pitch

delivered the opinion of the court.

2. Municipal Court of Chicago, § 26*—when party not estopped to object of failure to file report in time. The indorsement of “O. K.” upon a stenographic report by counsel for defendant in error does not estop the latter from objecting that it was not filed in time.

3. Municipal Court of Chicago, § 26*—what does not create estoppel to move striking of report. The fact that counsel for defendant in error knowingly permitted plaintiff in error to “go to considerable expense in having printed the abstract of record and the brief and argument” does not estop defendant in error from moving to strike the stenographic report as not having been filed in time.