author: ■Mr. Justice O’Connor

text:
    American Bonding Company of Baltimore, Appellee, v. Sigmund Silberman et al., trading as S. Silberman & Sons, Appellants.
    Gen. No. 22,394.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Charlesy N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed with a finding of fact.
    Opinion filed October 10, 1917.
    Statement of the Case.
    Action by the American Bonding Company of Baltimore, a corporation, plaintiff, against Sigmund Silberman, Hubert Silberman and David Silberman, trading as S. Silberman & Sons, defendants, to recover under a policy of burglary insurance, issued by plaintiff to defendants and a receipt given by defendants to plaintiff for payment of a loss thereunder, a share of the value of certain of the stolen property recovered by defendants. From a judgment for plaintiff for $1,000, defendants appeal, plaintiff assigning cross-error as to the amount of the judgment, Defendants’ stolen property was furs, valued at $21,722.61. Proof under the terms of the policy was made of the loss and $5,000, the amount of the policy, was paid by- plaintiff, defendants giving their receipt. Furs of the value of $14,641.71 were recovered but were so damaged as to be worth but $10,083.26. Defendants expended in recovering the furs $2,810.86 and plaintiff $666.68.
    The plaintiff agreed in the policy to indemnify defendants in the sum of $5,000 for direct loss by burglary of any of the merchandise described in the schedules attached, subject to certain specified conditions, one of which was:

      “The Company may repair any damage to property or premises, and it may replace any damaged or stolen article of property with one of like quality and value, instead of paying for same in money. When so replaced, the damaged or stolen article shall belong to the Company, but the Assured shall be entitled to it upon payment to the Company of the cost of its replacement or the amount paid in money on account of its loss. If the Assured has returned to him or recovers any article or articles for the loss of which he has been indemnified, he shall report its recovery to the Company, and shall either repay to the Company the amount of loss paid thereon, or forward the article or articles to the Company at its Home Office at Baltimore, Md.”
    . Defendants’ receipt, given upon payment of the $5,000, provided:
    “And in consideration of the said payment we hereby invest the said Company with full rights of ownership in and title to all of the articles or property stolen and removed at the time of the said loss * * * in accordance with the provisions of the said policy; and in further consideration of the said payment we hereby also subrogate the said Company to all our claims or rights against any third person or persons to the amount of loss paid and expenses incurred in settlement thereof, and we affirm that we stand ready at any time to execute any and all papers necessaiy to secure to the said Company all claims or rights; and we also further affirm and guarantee that in event of the return, or recovery, of any of the said articles or property stolen and taken away we will cause them to be conveyed by express, or other equally safe means, to the Company, at its Home Office, in Baltimore, Maryland, except that we reserve the right to retain possession of any article returned or recovered, upon immediately refunding to the Company the full sum allowed for loss thereon. * * *”
    Kraus, Holden & Lawless, for appellants.

      Abstract of the Decision.
    1. Insurance — when agreement in receipt for burglary loss to reimburse insurer upon recovery of property is invalid for want of consideration. Where a certain policy of burglary insurance issued by plaintiff to defendants contained certain provisions for delivery to plaintiff of any recovered property or the amount of the loss paid thereon, and plaintiff, upon proof of a loss, paid defendants the amount of the policy and took defendants’ receipt also containing provisions for delivery to plaintiff of any recovered property or the amount of the loss paid thereon, held that if such latter provisions differed from the former they were invalid for want of consideration, notwithstanding such payment of loss was made within ninety days after proof of loss and ar provision of the policy that no suit should be brought until after said ninety days, where the policy also provided that any loss should be payable immediately upon satisfactory proof of loss.
    2. Insurance — when insured is not obligated to deliver recovered stolen property to insurer. Under a policy of burglary insurance and a receipt given by the insured to the insurer for the full amount of the policy, upon a loss thereunder, which receipt provided for delivery to the insurer of any recovered property or the amount of the loss paid thereon, held that the insured would not be .obligated to deliver any recovered property so long as the loss still exceeded the amount of the policy.
    ,3. Insurance — when evidence does not show verbal agreement for prorating recovered stolen property or expenses. Evidence held to show there was no verbal agreement between plaintiff and defendants that any recovered property and expenses in recovering same should be prorated between them, in an action by a burglary insurance company to recover from the insured a share of stolen property recovered by the latter subsequent to payment to them of the full amount of the policy for a loss which in fact exceeded' the amount covered by the policy.
    Silber, Isaacs, Silber & Woley, for appellee; Fred D. Silber and James D. Woley, of counsel.
   ■Mr. Justice O’Connor

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Francis R. Van Hamm and Stella Van Hamm, Appellees, v. John V. Fox et al. Appeal of Fidelity Trust Company, Appellant.
    Gen. No. 22,407.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed with damages.
    Opinion filed October 10, 1917.
    Rehearing denied October 23, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Francis B. Van Hamm and Stella Van Hamm, complainants, against John V. Fox, Fidelity Trust Company, and Hew York Life Insurance Company, defendants, to recover the surrender value of an insurance policy issued to the complainant Francis B. Van Hamm by the defendant insurance company, less amounts due the insurance company and the defendant trust company for money loaned the insured or advanced on his account upon the policy by them, and to have certain transactions with the trust company relative to the matter declared fraudulent and usurious. From a decree in favor of the complainants, finding them entitled to the sum of $1,049.89, after deducting from the surrender value of the policy amounts admitted by complainants to be due to the insurance company and the trust company, the trust company appeals.
    This policy, issued December 22, 1892, was for $10,000, and at the end of twenty years had a surrender value of more than $6,000. The insured borrowed of the insurance company $1,980 prior to 1906, and delivered the policy to the company as collateral security. In October, 1906, the insurance company having refused to advance further money to the insured, he applied to defendant Fox, agent for defendant trust company, who stated that money to pay the premium then due and the one for the following year ' could be obtained provided an additional amount was borrowed to take up the insurance company loan, and the complainants accordingly executed their note for $2,700, to their own order, and indorsed and delivered the same, with an assignment of the policy, to Fox. When this note became due a year later, another note for $3,400 was executed and delivered to Fox; a year subsequently to that, another for $4,000 and one for $141, and a year subsequently to the latter, another for $4,800 and one for $183.83, the prior note or notes being taken up each year as new ones were made. Fox refused to make further advancements thereafter, and the insured on going to the insurance company to learn the value of the policy found for the first time that the money due that company was still unpaid and that the company still held-the policy. The trust company paid the premiums in 1911 and 1912, and . shortly before maturity of the policy complainants filed their bill. In each of the notes for $2,700, $3,400, $4,000 and $4,800, the insured was charged six per cent, interest on the $1,980 due the insurance company, and the $3,400 included also $204, six per cent, interest on that amount, and a commission to Fox of three and. one-half per cent, of the amount, $119.
    Abstract of the Decision.
    1. Usury, § 2

       — when note is usurious. Where the insured under an insurance policy gave to a trust company his note for money supposed to have been advanced by the company in payment of premiums upon the policy and of a prior loan by the insured from the insurance company, upon which the policy was held by the insurance company as collateral security, and such note was made to include both the amount of such loan, which the trust company had not taken up, and six per cent, interest on the amount of the note and also bore six per cent, interest, so that the interest charged on the amount actually advanced by the trust company exceeded seven per cent., held, that the note was usurious and that the trust company would not be permitted by such shift or device to collect interest in excess of that provided by statute, but would be entitled in a court of chancery to only five per cent, on the amount actually advanced by it.

      iChytraus, Healy & Frost, for appellant.
    Daniel V. Gallery, for appellees.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

2. Usuby, § 4 — not question of intention. Usury is not a question of intention of the parties.

3. Costs, § 67* — when allowed because of appeal for delay. A defense being obviously interposed merely for delay and to wear out the opposite party in whose favor judgment was rendered, held that damages, to the amount of ten per cent., should be assessed under Rev. St. ch. 33, sec. 23 (J. & A. If 2737), relating to the assessment of damages when an appeal is for delay, in affirming the judgment.


text:
    Sturtevant Mill Company, Appellee, v. Wearcrete Engineering Company, Appellant.
    Gen. No. 22,422.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Rehearing denied October 23, 1917.

      Certiorari denied by Supreme Court" (making opinion final).
    Statement of the Case.
    Action by Sturtevant Mill Company, plaintiff, against the Wearcrete Engineering Company, defendant, to recover on a written contract for the purchase by defendant of a certain machine for $2,300. From a judgment for plaintiff for $2,725, defendant appeals.

      Abstract of the Decision.
    1. Pleading, § 150

       — when affidavit of merits is mere subterfuge interposed for delay. Defendant’s affidavit of merits held to set up a defense which was an afterthought and mere subterfuge interposed for delay, where it was filed just before trial commenced and after several prior affidavits of merits in which no mention of such defense was made had been filed and abandoned or stricken from the files.
    2. Pleading, § 155* — when refusal to permit filing of affidavits of merits is proper. Where repeated affidavits of merits, all substantially to the same effect, had been filed and either abandoned or stricken from the files before trial, held that the same were apparently offered not in good faith but for delay, and there was no abuse of discretion in the refusal of the court at the trial to permit further similar affidavits of merits to be filed.
    3. Appeal and eebob, § 1526* — when instructions not prejudicially erroneous. Where no other verdict than that rendered would stand, held that instructions were not prejudicially erroneous, although not correct in all particulars.
    Foster, Payne, Beynolds & Bryant and Thomas Mack, for appellant.
    Bryan, McCormick & Webber, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    August Lipman et al., Appellants, v. South Side Elevated Railroad Company, Appellee.
    Gen. No. 22,433.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Rehearing denied October 23, 1917.
    Statement of the Case.
    Bill by August Lipman and others, complainants, against the South Side Elevated Railroad Company, a corporation, defendant, for an accounting by defendant as to a franchise to construct and operate an elevated railroad granted by ordinance in 1888 to the Chicago & South Side Rapid Transit Railroad Company, in which complainants were stockholders, and which was sold under a mortgage foreclosure and acquired by defendant. From a decree dismissing the bill, complainants appeal.
    The facts and questions presented are the same as in the cases of Chicago & S. S. Rapid Transit R. Co. v. Northern Trust Co., 90 Ill. App. 460, and Wells v. Northern Trust Co., 195 Ill. 288, and the decision in this case is governed by the decisions in such cases.
    Cooney & Verhoeven, for appellants.
    Isham, Lincoln & Beale, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Robert H. Merriam, Appellant, v. Grace H. Merriam, Appellee.
    Gen. No. 22,443.
    1. Equity, § 453

       — u>hat is effect of consent decree. A consent decree has the same force and effect as a decree, in invitum.

    2. Judgment, § 502* — when decree in favor of wife in separate maintenance suit is res judicata as to all defenses available to husband. Where defendant, in husband’s suit for divorce for drunkenness, was awarded in a prior suit by her in another State for separate maintenance a decree based upon a stipulation signed by him that she was living apart from him for a cause legally justifying her in so doing, held that such decree was res judicata as to all defenses which he might have made, whether they were made or not. "

    3. Judgment, § 579* — what effect given judgment of foreign court having jurisdiction. The judgment entered by the court of one State, if it had jurisdiction, has the same effect in another State as in the State where it was rendered, and is conclusive on the merits of the controversy, even if fraud had intervened.
    4. Judgment, § 579* — when decree for separate maintenance is bar to suit for divorce. A decree for separate maintenance obtained by a wife against her husband in one State is a bar to a suit by him in another State for divorce based upon the same facts.
    5. Divorce, § 16* — what constitutes condonation of offense of wife. Where defendant in a suit for divorce for - drunkenness had left complainant under an agreement in writing that should she refrain for three months from using intoxicating liquors she was to return to and live with him, and she did so refrain for the agreed time and then returned to him, but he refused again to live with her, held that her offense was condoned.
    6. Divorce — when shown that wife’s intemperate habits were induced by husband. Evidence in a suit by a husband for divorce, held sufficient to sustain a finding that complainant’s intemperate habits induced defendant’s like habits, by example and invitation.
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.

      LeRoy Haokett, for appellant.
    Chytraus, Healy & Frost, for appellee.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal appellant seeks to reverse a decree of the Superior Court of Cook county, dismissing his bill for divorce for want of equity. On April 15, 1914, complainant filed his bill for divorce charging the defendant with wilful desertion for a period of more than two years from and after April 8, 1912. The defendant answered denying that she had wilfully deserted the complainant and averred that she had left complainant’s home on or about May 5, 1912, at his request and against her own wishes, and that he thereafter continuously refused to live with her. The answer further alleged that she had filed her bill for separate maintenance against the complainant in the District Court of Ramsey county, Minnesota, December 31, 1912, charging that she was then living separate and apart from the complainant for a cause legally justifying her in so doing; that the complainant appeared as defendant in that suit,, filed his answer, and on the 23rd of April, 1913 a final decree was entered in her favor requiring him to pay her $125 per month as and for her separate maintenance, beginning December, 1912, and that said decree was still in full force and effect.

October 21, 1914, complainant filed an amended bill, charging the defendant with the same desertion set up in the original bill, alleging that he was justified in his refusal to live with her on the ground that she was guilty of excessive use of intoxicating liquors and habitual drunkenness for more than two years prior to April 8, 1912. The defendant answered setting up the proceedings in the separate maintenance suit in Minnesota and denying the excessive use of intoxicating liquors and the charge of habitual drunkenness, and averred that she had wholly refrained from the use of intoxicating liquors since April 10, 1912; and averred that under the Constitution of the United States the complainant was bound by the decree of the Minnesota Court. She further charged the complainant with habitual drunkenness for a period of thirteen years and that he was guilty of laches. Afterwards the complainant amended his bill and averred that he had refrained from filing the bill and setting out the additional facts of his amended bill from a sense of pride and respect for the feelings of the defendant.

The case was tried before the chancellor, who found that even if it be assumed that the defendant was guilty of the excessive use of intoxicating liquors for a period of two years preceding the filing of the bill, complainant was not entitled to the relief prayed, for the reason that the defendant’s intemperate habits were induced by the solicitation and invitation of the complainant and that he could not take advantage of his own wrong.

The defendant contends that as section 1, art. IV of the Federal Constitution provides that, “Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State,” the decree in the separate maintenance suit is res judicata, and therefore the bill was properly dismissed.

The record discloses that the parties were married in Washington, D. C., August 27, 1902; that they resided as husband and wife in that city for a number of years, and afterwards moved to St. Paul, Minnesota, where they took up their residence with complainant’s mother. The evidence tends to show that after April 8,1912, on account of the excessive use of intoxicating liquors by the defendant, complainant refused to live with her; that a few days thereafter, the defendant at complainant’s solicitation and request and pursuant to an agreement between.them left St. Paul for a period of about three months, going to French Lick Springs, Indiana, and Washington, D. C., for the purpose of breaking herself of the habit of drinking; that at the end of said period, in accordance with their agreement, she returned to the mother of the complainant at St. Paul, but he refused to live with her; that afterwards, on December 31, 1912, she filed her bill against him in St. Paul, Minnesota, for separate maintenance, alleging that since November 2, 1912,-he without any cause whatever refused to live with her or support her, and that she was without means of support. To this suit he filed his answer, admitting that they were living separate and apart several months prior to the institution of that suit. April 23, 1913, there was filed in that case a written stipulation by the parties. It was there stipulated “that the plaintiff now is, and since the eighth day of April, 1912, has been living apart from her husband for a cause legally justifying her in so doing;” and that a decree might be entered forthwith without further notice requiring the husband to pay the wife $125 per month, together with solicitor’s fees and costs. On the same day the court entered a finding and order for judgment. The stipulation was made a part of the finding, and, on examining the files, judgment was entered in favor of the wife and against the husband, requiring the latter to pay her the sums as provided in the stipulation for her support and maintenance, “so long as plaintiff continues to live separate and apart from her husband.” The decree followed the finding and order for judgment and provided that the sums therein mentioned be paid by the husband to the wife, “so long as the said cause mentioned in said stipulation exists.”

Complainant contends that he should not be barred from prosecuting his suit in this State by reason of the decree entered by the Minnesota court, for the reason that the issues raised by the pleadings in that suit are not the same as the issues raised by the pleadings in this case; that the decree by the Minnesota court was a compromise settlement, no evidence having been heard by the court, but was entered solely upon the stipulation of the parties; that a decree entered "by consent of the parties is not the judgment of the court, and is therefore not res judicata.

In support of the proposition that a consent decree is not res judicata, the cases of Wadhams v. Gay, 73 Ill. 415; Umlauf v. Umlauf, 117 Ill. 580; Wahle v. Wahle, 71 Ill. 510, are cited. Each of these cases was analyzed and commented upon by the Supreme Court of the United States in the case of Harding v. Harding, 198 U. S. 317, where the same contention was made. It was there held that these cases did not support such contention, and that the general rule in Illinois was “that a consent decree has the same force and effect as a decree in invitum,” citing Knobloch v. Mueller, 123 Ill. 554; O’Connell v. Chicago Terminal Transfer R. Co., 184 Ill. 308. To the same effect is Healy v. Deering, 231 Ill. 423, where it was held that a decree entered by consent of the parties is binding upon them and cannot be reversed or impeached by them or set aside by a bill of review or a bill in the nature of a bill of review, 'except for fraud.

In a suit between the parties to this case, instituted by the wife against the husband in the District Court of Ramsey county, Minnesota, where she sought to enjoin him from prosecuting the suit in this case (127 Minn. 21), it was held that the suit for separate maintenance “was an equitable action for separate support, not an action for a limited divorce,” and cited Baier v. Baier, 91 Minn. 165. In the latter case it was held that an action for separate maintenance might be maintained independent of an action for divorcethat it was an equitable action not based on any statute, but based on the powers of a court of chancery; that “a wife who is living separate and apart from her husband for a cause legally justifying her may maintain an equitable action against him for an allowance for her separate support.” In that case the husband was permitted to introduce evidence tending to show that his wife was not justified in living separate and apart from him. In the separate maintenance suit in the District Court of Minnesota between the parties to this case, the husband there was entitled to show, if he could, that his wife was not living separate and apart from him for a cause legally justifying her in doing so —he could there have shown that the separation was caused by the excessive use of intoxicating liquors, and thereby defeated that action. But he did not see fit to do so, but on the contrary he admitted in writing that his wife was then living separate and apart from him for reasons legally justifying, and induced the court there to enter a decree in her favor, and he will not here be permitted to stultify himself by saying that his wife was living separate and apart from him by reason of her own fault. It will be seen that in the separate maintenance suit, the question in issue was whether the wife was living separate and apart from" her husband for a legal cause, and all defenses which the husband might there have made are res judicata, whether they were actually made or not. Muren Coal & Ice Co. v. Howell, 217 Ill. 190.

Furthermore, it appears that the desertion and the excessive use of intoxicating liquors that the husband charges his wife with all took place prior to their separation, April 8, 1912, and several months prior to the filing of the separate maintenance suit in Minnesota, and therefore each of these defenses was available to him in that court and, not having been there made, he is now concluded.

Counsel for complainant states in his brief that while the stipulation filed in that court conceded that the wife was living separate and apart from her husband without her fault, the record in this case shows that they were living separate and apart because the husband felt he was grievously wronged, and for no other reason. But, even if this were true, the judgment entered by a court of one State, if it had' jurisdiction, has the same effect in other States as in the State where it was rendered, and is conclusive on the merits of the controversy, even if fraud had intervened. Forrest v. Fey, 218 Ill. 165.

Complainant further contends that a decree entered in the separate maintenance suit is not a bar to a later proceeding for absolute divorce between the same parties, citing Umlauf v. Umlauf, supra. Complainant in his brief states that “he seeks redress in the amended bill on the same ground as in his original bill, namely, desertion — ¡the desertion, however, being for cause— and the charge of drunkenness added in the bill and established by the evidence to show the cause.” In other words, that while he refused to longer live with his wife, it amounted to desertion on her part, for the reason that she was guilty of habitual drunkenness, which justified him in refusing to longer live with her. -In the Harding case, supra, it was held that a decree in a maintenance suit entered in a suit brought by the wife against the husband in Illinois was a bar to a suit for divorce brought by him against- his wife on the ground of wilful desertion in the court of California. The court there said (p. 329): “The sole ground alleged for granting the divorce was wilful desertion by the wife in the month of February, 1890. The answer of the wife * * * specially pleaded the proceedings and the decree of the Illinois court and the admission of the husband on the record therein as to the separation being without the fault of the wife, all of which, it was asserted, established by the thing adjudged that her living apart was justified and did not constitute desertion.” In that case the charge in the bill for separate maintenance averred that the separation took place in February, 1890. The husband in his bill for divorce on the ground of desertion averred that the desertion took place in February, 1890. The court further said (p. 339): “From the standpoint of a decree in favor of the wife in the suit for separate maintenance the issues raised and determined were absolutely identical.” In the instant case, it is admitted that the separation took place April 8, 1912; that this was the fact shown in the separate maintenance suit, and also as shown in the instant case. It therefore appears that the wife was claiming that she was living separate and apart without her fault in the separate maintenance suit during the same period of time which the husband is claiming that the desertion took place. The Harding case, supra, is therefore directly in point.

The defendant contends that even if she was guilty of the excessive use of intoxicating liquors, complainant condoned the offense. The record discloses that after the separation of the parties, April 8,1912, negotiations were carried on between them through their respective attorneys at St. Paul, whereby the defendant, at the request of the complainant, agreed to leave St. Paul for a period of three months, unless he asked her to return at an earlier date; that she intended to gq to French Lick Springs and Washington, D. O.; that after three months’ absence, if in the meantime she refrained from the use of intoxicating liquors, it was understood that she was to return to her husband and they were to continue to live together as husband and wife; that if after returning she again used liquor, he would refuse to live with her. This agreement was reduced to writing. In accordance therewith the defendant left St. Paul, going to Washington, D. 0. and other places, and remained absent for more than three months, during all of which time she refrained from the use of intoxicating liquors. Upon her return to St. Paul, her husband refused to live with her, without any reason other than that which had taken place prior to the separation April 8, 1912. He agreed to reinstate her to her marital rights upon condition, and she. performed the condition. We think, therefore, that there was a condonation of the offense by the complainant. Complainant contends that there can be no condonation unless the guilty party is reinstated to all marital rights, and as this was not done in the instant case, there was no condonation. The case of Anderson v. Anderson, 89 Neb. 570, is cited in support of this contention. In that case there was an agreement wheréby the husband was to go to a sanitarium to be cured of certain ailments, and for this purpose agreed to stay for a certain period. Before the expiration of the time and before he was cured, he returned and again repeated the offenses charged against him. It was there held that there was no condonation. It is obvious that the facts in that case ("j are entirely dissimilar to the facts in the case at bar.

Complainant further contends that the court was in error in refusing to find that he had established that defendant was guilty of wilful desertion, on the ground that the manifest weight of the evidence shows the defendant to be guilty of habitual drunkenness for more than two years prior to the filing of the bill. We have carefully examined the evidence in the record, and are clearly of the opinion that both parties used to excess intoxicating liquors, and after a careful consideration we are unable to say that the finding of the chancellor, that the intemperate habits of 'the defendant were induced by example and invitation of the complainant, is not sustained by the evidence. The decree of the Superior Court of Cook county is affirmed.

Affirmed.


author: Mr. Justice Taylor

text:
    Chicago & Western Indiana Railroad Company, Appellant, v. Guaranty Company of North America, Appellee.
    Gen. No. 22,261.
    1. Indemnity, § 28

       — when question for jury whether insurer waived limitation clause for commencement of action on bond. Where an employer’s indemnity bond required that an action thereon should be brought within one year after discovery by the assured of a default thereunder, held, in an action brought on the bond more than one year after such discovery, that the assured was en titled to have the jury pass upon the evidence, if there was sufficient evidence beyond a scintilla, which tended to prove that the insurer had waived the limitation clause.
    2. Trial, § 195* — when verdict for defendant should not be directed. A verdict for the defendant should not be directed where there is in the record, evidence, which fairly tends to prove all the material averments of the declaration.
    3. Indemnity, § 28* — when verdict for defendant should not be directed. Evidence held to tend to show that plaintiff may have deterred from instituting legal proceedings on an employer’s indemnity bond, issued by defendant, within one year after plaintiff’s discovery of a default thereunder, as required by the bond, by negotiations, conversations and letters with defendant, so that defendant’s motion for a directed verdict should have been overruled, in an action brought on the bond more than one year after such discovery.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed October 10, 1917.
    C. Gf. Austin, Jr., and Beverly W. Howe, for appellant.
    L. C. Cooper and C. W. Greenfield, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal from a judgment upon a directed verdict in favor of appellee in a suit in assumpsit brought by appellant, the Chicago & Western Indiana Railroad Company, against The Guaranty Company of North America (in the Municipal Court of Chicago), upon an indemnifying bond.

One Coyer, a clerk employed by the Chicago & Western Indiana Railroad Company (hereinafter called appellant), had charge of certain railroad tickets and parcel-room checks. In a schedule attached to an indemnifying bond dated April 1, 1905, between The Guaranty Company of North America (hereinafter called appellee) and the appellant, the name of Coyer appeared as ticket clerk, bonded in the sum of $2,000. About July 1, 1912, while the indemnifying bond was in force, it was discovered that Coyer had misappropriated, between March, 1910, and July 4, 1912, funds of the appellant, to the extent of $2,592.20. It is not disputed that the default occurred, or that it was covered at the time by the indemnifying bond. The bond provided that appellant must begin suit within one year of the discovery of the clerk’s default; also, that an audit of accounts should be made once a year.

On July 23,1913, twenty-two days more than a year after July 1,1912, appellant brought suit in the Municipal Court against the appellee for the sum of $2,000, alleged to he due on the bond. Upon the trial, and at the conclusion of the appellant’s case, the trial judge, on the ground that the suit was not brought within a year, and because the evidence did not show, in his opinion, a suEcient audit to comply with the requirements of the bond, sustained a motion of the appellee, to instruct the jury to find the issues for the appellee; and upon the jury returning a directed verdict, judgment was entered accordingly in favor of the appellee.

It is claimed by the appellant, first, that inasmuch as there was evidence tending to show that the appellee took part in certain negotiations with appellant looking towards a settlement, which negotiations deterred appellant from beginning suit within the year, the trial judge erred in refusing to submit that evidence to the jury; second, that a sufficient audit, according to section 4 of the bond, was made.

It is contended by the appellee, first, that inasmuch as section 13 of the bond provided “that no suit.or proceeding at law or in equity shall be brought, or arbitration required, to recover any sum hereby insured, unless the same is commenced within one year (365 days) from the date of the first discovery by or on behalf of the employer, of any default of the employee in respect of whom claim shall have been made,” and the suit was not brought until after the expiration of the full year, that it is not liable; second, that no sufficient annual audit was made, as was required by section 4 of the bond.

As to the evidence of negotiations with appellant looking towards a settlement, which may have deterred appellant from beginning suit within a year, and whether it was sufficient to justify its submission to the judgment of the jury:

Practically all the negotiations and letters written were between Cooper, representing the appellee, and Austin, representing the appellant, each as counsel. In the course of the year, July 1, 1912 to July 1, 1913. the limitation fixed by the bond, within which time it was provided suit should be brought, the counsel for appellant and appellee had a number of conferences looking towards an amicable adjustment of the matter without suit; and between them a number of letters, all pertaining to a prospective settlement, and containing counter propositions, were written. The evidence is too voluminous to set forth very fully here, so we shall merely give a succinct analysis and resumé.

The letter of October 14, 1912, from appellee to appellant, made an offer of (1) payment of $1,500, that is, seventy-five per cent, of the total claim, or (2) $1,000 and an equal division between appellant and appellee of what might be recovered from the defaulter. It also, further, expressed as a reason for the offer of compromise, a desire to end the “matter in an amicable way and to dispose of it” and referred to the pleasant relations which had existed between appellant and appellee and a desire to save appellee from any “possible legal controversies.” That letter certainly constituted some evidence tending to prove that appellant may, by reason of it, have been deterred from beginning suit as soon as it would have done otherwise. That it may have had some such effect is evidenced, also, by the letter of October 31, 1912, from appellant, in reply, which contains the following language: “I have not replied to your letter of October 14th heretofore, because I have been waiting to hear from the President and General Manager in reference to the proposition of compromise submitted by you.” Appellee’s proposition of settlement of October 14th {supra) was answered on October 31st, that is, seventeen days afterwards, and that lapse of time was caused’, in all probability, by appellee’s letter of October 14, 1912. Also, the letter of appellant, February 1, 1913, states that appellee “is waiting patiently for your solicitor * * * to call at this office as agreed, that we may take up this matter with a view to arriving at an amicable adjustment.” Obviously the time was passing by reason of the mutual negotiations and so much so that even the appellee was complaining.

Later on, February 20, 1913, after a personal conference on the matter, counsel for appellee wrote making an offer of $1,500 and a division of what might be received from Coyer after appellant had received $1,500; and that letter contained the expressions “an amicable adjustment of the matter,” “for the purpose of bringing about an amicable settlement of this matter, and to save any possible necessity of resorting to the courts,” “and this, we sincerely hope, we may be able to do in this case, hence the above offer, which I certainly hope will prove satisfactory and acceptable to your Company.” At that time almost eight months of the limitation of twelve months had elapsed and still counsel for the appellant and appellee, apparently, were still at work endeavoring to make a settlement. Of course, the bona fides of the counsel we take for granted. A serious effort was being made to settle the matter out of court.

On February 26, 1913, counsel for appellant replied to appellee that he had taken the matter up with appellant and that it declined the offer of settlement. Taking the matter up, of course, consumed time and that was the normal result of appellee’s conduct in making its proposition and having it entertained by appellant. Another offer of settlement was made by appellee on April 14,1913. That was an offer of $1,000 and an equal division of what might be recovered from Coyer (and Cams, another alleged defaulter). That letter contained the phrase “and are satisfied that this Company has dealt with them fairly, then settle on that basis.” As late as June 13, 1913, appellee wrote to the auditor of appellant referring him to the letter of April 14, 1913.

The letters of October 14, 1912, October 31, 1912, Febmary 1, 1913, February 20, 1913, February 25, 1913 and June 13, 1913, together with the personal conferences, all taken together, certainly constitute considerable evidence tending to show that counsel (acting for appellant) may have been dissuaded, from time to time, within the year, from beginning suit.

The subject of waiver or estoppel as to provisions, in similar contracts, has been considered by the courts of this and other States, and in some instances it has been held that the insurer by his conduct had waived the condition, or estopped himself from taking advantage of it.

In North American Acc. Ins. Co. v. Williamson, 118 Ill. App. 670, the court used the following language: ‘ ‘ Stipulations to sue, if at all within the time limited by the policy and less than statutory limitation, may be waived by the parties. Slight evidence of waiver will be sufficient.” In Allemania Fire Ins. Co. v. Peck, 133 Ill. 220, which was an action on an insurance policy where the defendant pleaded in bar the failure of the plaintiff to sue within the six months’ time limited in the policy and the plaintiff replied that the defendant held out reasonable hopes for an adjustment and thereby deterred the plaintiff from commencing suit, the court held that where the conduct of a party induces another to delay the bringing of a suit within the time limited, by holding out reasonable hopes of an adjustment or settlement of the claim, the limitation is waived. In Illinois Live Stock Ins. Co. v. Baker, 153 Ill. 240, the court used the following language: “The vital issue on the trial was, had the company waived the time within which, by the terms of the policy, the suit should have been begun. That the evidence tended to prove such waiver, under the rule announced in the cases cited by Judge Wall, and again laid down in Allemania Fire Ins. Co. v. Peck, 133 Ill. 220, is beyond controversy.” That case quotes and sanctions the following language of Mr. Justice Wall: “If there was once a waiver it could not be recalled or revoked. If any substantial part of the time provided by the limitation is lost by reason of the waiver, the limitation is wholly gone. It cannot be revived, nor can the plaintiff be required to sue within any time short of the statutory limitations.” In Williams v. Bankers’ Union of Chicago, 166 Ill. 495, the court used the following language: “It is urged by the appellant that the suit not being brought within One year from the death of the insured, there was no right of recovery. The jury found especially that the appellant held out.to the appellee reasonable hopes of a settlement of the claim. We think the evidence sufficient to sustain the finding and also that the same tended to show that the appellee was thereby induced to delay bringing suit. Under the circumstances the appellant is held to have waived the said limitation clause.”

In the instant case appellant was entitled to have the jury pass upon the evidence if there was sufficient evidence beyond a scintilla, which tended to prove that appellee had waived the limitation clause. Appellant may have believed, and justifiably, that the negotiations with appellee would probably result in a settlement of the case and, as a result of that belief, induced by appellee’s conduct, postponed beginning suit; and it follows, therefore, that the evidence should have been submitted to the jury. We are not able to say that the jury would not be justified in concluding, from the evidence, that appellant was deterred from bringing suit within the year. If the conduct of appellee actually did induce appellant to think or believe that a settlement might be consummated, and to act accordingly, then there was evidence of a waiver, or pertaining to a waiver, that should have been submitted to the jury. It is not a question of meeting of minds, as in the case of a contract, but rather, what effect, reasonably considered, did the overt acts of appellee have on the conduct of appellant. What effect, if any, appellee’s conduct, in the course of the negotiations through its letters and conferences, had upon the conduct of appellant, was a subject to be considered by the jury. Whether or not the negotiations, conferences and letters did deter the appellant from instituting legal proceedings, where there was, as here, evidence tending reasonably to show that the appellant may have been deterred from beginning suit, was a question for the jury to answer.

As to the quantity and quality of the evidence, applying the rule laid down in Libby, McNeill & Libby v. Cook, 222 Ill. 206, that “a verdict for the defendant should not be directed when there is in the record evidence which fairly tends to prove all the material averments of the declaration,” we are of the opinion that the motion of the appellee at the close of appellant’s evidence for a directed verdict should have been overruled.

As to whether appellant complied with clause 4 of the bond, which is a provision “that the employer shall observe due diligence and exercise reasonable skill, care and precaution in the examination and supervision of the books and accounts of said employees for the prevention or detection of default, and shall also cause a competent inspection, audit and verification of their books and accounts, and for all cash,. securities and property in their custody * * * to be made at least once within every twelve months.”

Coyer’s duty as ticket clerk was to keep an accurate record of the stock of suburban tickets and to dispense those tickets to the agents along the line as they were in need; also to keep a correct record of the amounts of money turned in by the different agents along the line. He also had charge of the parcel-room tickets and checks in the Dearborn and Englewood stations and gave them out to the parcel-room clerks. Also, he kept a record of the amounts of money transmitted to the company by the ticket agents along the line. Apparently his default consisted in a failure to turn over all the receipts from the parcel room, the amount of his defalcation being approximately the difference between the face value of the tickets sold and the amount turned in. The amounts unaccounted for were taken between March, 1910 and July 4, 1912, and amounted approximately to $2,500.

The evidence shows, through the testimony of the assistant auditor for the appellant, that there was an annual audit of the parcel room made by chartered accountants and that there were other audits made ‘ ‘ at least twice a year” and that “There was an audit made of his (Coyer’s) accounts.” The bond itself does not specifically provide for an audit of the accounts of each employee. What it does provide for is that, in the matter of supervision of the accounts, “due diligence” and “reasonable skill, care and precaution” shall be shown. The testimony of the assistant auditor is not only evidence tending to show, but strong evidence, that the requirements of the bond were complied with. The fact that the assistant auditor testified, on the cross-examination, that if an audit had been made “of the accounts involving the parcel room and the moneys received there and the parcel room checks as returned to the custody * * * of Coyer” that the shortage would have been discovered, may be some evidence, but certainly it is not sufficient evidence that the provision in the bond was not complied with.

Inasmuch as we are of the opinion that the trial court erred in directing a verdict for the defendant, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    H. H. Felgar, Plaintiff in Error, v. Home Insurance Company of New York, Defendant in Error.
    Gen. No. 22,290.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Words and phrases — “pilferage" defined. “Pilferage” has but one meaning and is some form of stealing.
    2. Insurance, § 397a

       — what does not constitute theft, robbery or pilferage of automobile. Where plaintiff’s automobile was taken from his garage by some one unknown and was returned so damaged as to require repairs to various parts and some tools, held that such damage and loss were not within the terms of an insurance policy providing against “theft, robbery or pilferage.”
    Error to "the Municipal Court of Chicago; the Hon. Sheridan E. Pry, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Statement of the Case.
    Action by H. H. Felgar, plaintiff, against the Home Insurance Company of New York, a corporation, defendant, upon a policy of insurance on plaintiff’s automobile. From a judgment for plaintiff for $6.50, he brings error.
    plaintiff’s automobile was taken from his garage without his knowledge by persons unknown and was returned in a damaged condition. The statement of claim set forth a loss of $97.80, including for tools, $4.20; repair bill, $63.60; vulcanizing inner tubes, $5; damage to top and curtains, $25; and unearned premium, $6.50, defendant, having canceled the policy prior to its termination by its terms.
    Emory J. Smith, for plaintiff in error.
    Charles B. Obermeyer, for defendant in- error.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Frank Thomas, Appellee, v. L. P. Larson, Jr. Company, Appellant.
    Gen. No. 22,307.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, | 84

       — When evidence shows contract of employment for one year. In an action by a servant against his master for breach of a contract of employment, evidence held sufficient to show a contract of employment for one year.
    2. Master and servant, § 84* — when evidence shows waiver of furnishing of list of customers as prerequisite to employment. In an action by a servant against his master for breach of a contract of employment, evidence held sufficient to show that the furnishing of a list of customers by plaintiff as a prerequisite to employment was waived.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Statement of the Case.
    Action by Frank Thomas, plaintiff, against L. P. Larson, Jr. Company, defendant, to recover damages for breach of a contract of employment. From a judgment for plaintiff for $410, defendant appeals.
    William A. Jennings, for appellant.
    Depress, Buckingham & Eaton and Lewis, McKay & Bown, for appellee; Bichard Gates Hoppman and Don Kenneth Jones, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    William Eicholtz, Administrator, Appellee, v. Village of Forest Park, Appellant.
    Gen. No. 22,322.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municiral corporations^ § 983

       — what is duty of city as to maintenance of electric light poles on street in safe condition. A city is under obligation to sed that a public street, on which an electric light pole owned by it is located, is not rendered unsafe, owing to an uninsulated chain on such pole five and a half feet from the ground becoming heavily charged with electricity.
    2. Municipal corporations, § 98Z* — when negligence of city in maintenance of electric light pole in dangerous condition is shown.
      In an action by a city for the death of a sixteen-year-old hoy, due to an electric shock from a charged, uninsulated hoisting chain on one of the defendant’s light poles, where it appeared that one of the drop wires was in contact with one of the steps of the pole, that the chain was in contact with the step or post, that the covering on the drop wire was ragged for some distance, and that no insulator balls, or similar apparatus, were used to prevent the charging of the chain, evidence held sufficient to sustain a finding that defendant was guilty of negligence.

      Appeal from the Circuit Court of Cook county; the Hon. David F. Matchett, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Statement of the Case.
    Action by William Eicholtz, administrator of the estate of Herman C. Eicholtz, deceased, plaintiff, against the Village of Forest Park, defendant, to recover for the death of deceased due to an electric shock from the hoisting chain on one of defendant’s light poles. From a judgment for plaintiff for $4,250, defendant appeals.
    Frank S. Bigheimer, for appellant; Frank J. Lammers, of counsel.
    Frank W. Swett, for appellee.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

3. Death, § 21 — when evidence shows that electric shock from city light pole was proximate cause of death. In an action against a city for the death of a sixteen-year-old boy, due to an electric shock from a charged, uninsulated hoisting chain on one of defendant’s light poles, where there was evidence that deceased had been ill and had suffered from various diseases, and two physicians testified that the cause of death was heart disease, and it further appeared that he touched- the chain, could not release himself, cried out, was disconnected by force, and immediately died, evidence held sufficient to sustain a finding that the electric shock was the proximate cause of his death.

4. Death, § 67* — when verdict not excessive. A verdict for $4,250 for the death of a sixteen-year-old boy as the result of a charge of electricity from a city light pole, held not excessive.


text:
    Annie J. Alke, Appellant, v. Frederick W. Alke, Appellee.
    Gen. No. 22,329.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. "William IN'. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Statement of the Case.
    Action in assumpsit by Annie J. Alke, plaintiff, against Frederick W. Alke, defendant, to recover the sum of $2,000 alleged to be due under a contract relating to property rights of defendant and plaintiff as husband and wife, and of $1,650 with interest alleged to be due as monthly payments under such contract. From a judgment for defendant for costs, complainant appeals.
    Abstract of the Decision.
    Husband and’wife, § 210

       — when evidence shows extinguishment of executory portions of separation agreement 6y consent divorce decree. In an action by a wife against her husband to recover a specific sum and also monthly payments alleged to be due under a separation agreement, evidence held sufficient to show that the executory portions of the contract were extinguished by a consent decree in subsequent divorce proceedings.
    Thurman, Hume & Kennedy, for appellant.-
    Joseph Cummins, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Roy C. Holbrook, Appellant, v. L. C. Lawton, Appellee.
    Gen. No. 22,356.
    Judgment, § 273

       — when motion lies to vacate by writ of error coram, nobis. A motion lies to vacate a judgment by a writ of error coram, nobis where a Circuit Court clerk fails to obey a rule of court requiring him to place upon the wrapper of a case the name of the judge to whom the case was reassigned, as the result of which a judgment by default is entered by a judge whose name is on the files and to whom it had been" assigned at a prior time.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Rehearing denied October 25, 1917.

      Gertiorari denied by Supreme Court (making opinion final).
    Thomas J. Dawson and Heldman, Jacobson & Grape, for appellant; Morton S. Cressy and William E. Rafferty, of counsel.
    John S. Miller and Manieres & Pratt, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

The appeal in this case and the writ of error in Holbrook v. Lawton, Gen. No. 22,670, post, p. 505, were consolidated for hearing. The matters involved in both the appeal and the writ of error, especially as to the facts, are in a great part the same. The appeal asks to have set aside an order vacating the judgment at law in the lower court, on the ground that there was no error of fact which came within the purview of section 89 of the Practice Act (J. & A. 8626); and the writ of error is prosecuted on the theory that the judgment that was entered in the lower court was, as a matter of law, erroneous.

On June 14,1913, Roy 0. Holbrook began an action of trespass on the case on promises, in the sum of $10,000, against L. C. Lawton and Dutch Guiana Culture Company, a corporation. The summons was returnable to the July term of the Circuit Court. The summons was served on L. C. Lawton on June 19, 1913, and returned “the other within named defendant not found in my County.”

On August 2, 1913 (of the July term of the Circuit Court), appellant, Holbrook (hereinafter called plaintiff), filed a declaration consisting of the common counts, on the back of which there was a ‘ ‘ copy of the account sued on” but without an affidavit. On August 22, 1913, an order was entered on motion of the plaintiff, defaulting the defendant, and to the effect that the plaintiff “ought to have, and recover of, and from the defendant, L. C. Lawton, his damages sustained herein by reason of the premises.” On October 17, 1913, before Judge Petit, on motion of the attorney for the plaintiff, an order was entered “that the suit be, and the same is, hereby dismissed as to the defendant Dutch Guiana Culture Company.” That order also provided that the matter be referred to the jury to assess the plaintiff’s damages as to the defendant L. C. Lawton. The verdict of the jury was to the effect that they found “the issues for the plaintiff” and assessed the plaintiff’s damages in the sum of $9,500. On December 2, 1913, the defendant filed a plea of the general issue and on December 4, 1913, pursuant to notice served on the plaintiff, moved the court that the minutes of the judgment of October 17, 1913, be expunged or, if the court should hold that the judgment was a valid existing judgment, that it should be vacated for “errors in fact committed in the proceedings.” On the same day the court ordered “that the execution of this cause be, and the same is, hereby stayed until further notice of this court. It is further ordered that the clerk of this court be, and he is hereby, ordered to spread of record no further orders in this canse until further notice from this court.” Subsequently on a petition for a writ of mandamus this last order was set aside by the Supreme Court. Various orders were entered from time to time in regard to appearances and other matters which are unimportant here. On December 8, 1914, the court of its own motion continued the hearing until after the Supreme Court should decide the mandamus proceeding. On April 15, 1915, Judge Petit entered an order complying with the mandate of the Supreme Court and expunging that part of the order of December 4, 1913, which directed the clerk not to spread of record further orders in the same cause until further notice from this court. Various amendments were made by the defendant to his motion of December 4, 1913, and on July 26, 1915, the plaintiff filed an amended motion which is in the nature' of a declaration and sets forth the reasons why the plaintiff claims that the judgment of October 17, 1913, “written and entered of record on said 18th day of May, A. D. 1915” should be vacated and the default of said defendant on August 22, 1913, be held void or vacated and set aside. On August 2, 1915, the plaintiff filed a special demurrer.

On January 11, 1916, Judge Honoré overruled the special demurrer of the plaintiff to the amended motion and entered an order on the plaintiff to answer the amended motion instanter. The plaintiff stood upon his demurrer and thereupon an order was entered vacating the judgment. This appeal is from that order.

The amended motion of July 26, 1915, which is specifically demurred to, states that the case in which Judge Petit rendered the judgment of October 17, 1913, was not then assigned to him but had been, on August 1, 1913, assigned to the late Judge Lockwood Honoré; that Rule 2 of the court provided that “the clerk should place upon the wrapper of each case the name of the judge to whom it is assigned” and that ‘£ all pleadings will be settled and orders entered in a cause by the judge to whom the same is assigned,” etc.; that when the case was begun on June 14, 1913, the clerk, following the rule, assigned it to Judge Petit and placed on the wrapper of the case the name of Judge Petit, to whom the case was then assigned; that on July 21, 1913, a general order of the court was entered, directing the clerk, inter alia, to prepare five law calendars for all of the law cases commenced since August 1,1912, up to and including July 31,1913; that the instant case was by the clerk duly placed as No. 659 on calendar No. 2, assigned to Judge Honoré; that it was the duty of the clerk, under the rule and practice, to place upon the wrapper of .that case the name of the said Judge Honoré as the name of the judge to whom the case was assigned; that the clerk failed to do so; that about the 1st of September, 1913, the printed calendar came into the hands of the attorneys for the defendant and that they thereby received actual notice that the case had been reassigned to Judge Honoré and that they relied upon that notice and were led to believe that all orders and any judgment which might be applied for, or rendered, would take place only before Judge Honoré; that on October 17, 1913, Judge Honoré was present and held court in his court room; that the defendant, by his attorneys “in contemplation of law and in, fact by reason of the said notice to them and their knowledge of the assignment of said case to the said Judge Honoré,” were in the court and court room of the said Judge Honoré on that day; that they had no notice of any proceedings before Judge Petit on October 17,1913; that on that day the attorneys for the plaintiff took the files and the wrapper, on which latter appeared the name of Judge Petit, to him and, owing to the lack of knowledge of Judge Petit of the failure of the clerk to place the proper name on the wrapper, and his lack of knowledge of the assignment of said case to Judge Honoré, and his lack of knowledge that it was not assigned to him, all of which ignorance of the court was the .result of the clerk’s omission, and the fact that the attorneys for the plaintiff applied for judgment, Judge Petit rendered judgment.

It is now claimed by appellant that the trial court was without jurisdiction to enter any order vacating the judgment of October 17, 1913; and that it should have sustained the demurrer. Of course, that matter was not before the Supreme Court in the mandamus case. When the Supreme Court in that case said (266 Ill. 628), “after the lapse of the term, however, the power of the court over its judgment was gone,” it had no reference to any proceedings which might be properly taken in the nature of “error coram nobis.” Likewise, the further language of that court, that the nisi prius court could not “change, increase, alter, reduce, vacate, modify or interfere with any judgment rendered at a former term” had reference only to the conventional inhibitions. No other subject was before it. In opposition to the contention of appellant, it is claimed by the appellee that his motion to vacate the judgment shows facts from which it appears that the judgment of October 17, 1913, was rendered by Judge Petit as the result of an error in fact.

When Judge Petit rendered the judgment of October 17, 1913, he did so on the assumption that, as a matter of fact (not as a matter of law), the case was assigned to him. The wrapper of the files which was before him, was stamped with his name, but at that time the fact was that the case (on calendar No. 2 as case No. 659) was assigned to Judge Honoré, who, by reason of the Circuit Court Rule 2, that “all pleadings will be settled and orders entered in a cause by the judge to whom the same is assigned” was the only judge in the Circuit Court who could enter an order in that case. It is only fair to assume that the fact that the wrapper bore his name was the only reason why Judge Petit undertook to render judgment. No matter of law was involved, but it was the result of a simple e misrepresentation of facts. Judge Honoré was, it is set forth, in his court room at that time and the case was assigned to him. Judge Petit had no more authority to render judgment, under the circumstances of the case, than would a judge sitting in some other circuit in the State. He went through the form of rendering judgment because his name appeared stamped on the file wrapper. If the name “Honoré,” that of the judge who alone had authority to enter an order in the case, had been stamped by the clerk of the court on the file wrapper, as it would have been had it not been for the default of the clerk, Judge Petit would not have rendered judgment. It is somewhat similar to the case where a clerk of the court fails to file a pleading; and in Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, the court said: “If the clerk should fail to file a plea or answer, and by such failure u party should be prevented, without fault or negligence, -from making a defense, the error might be corrected by the motion substituted for the writ.” In Pickett’s Heirs v. Legerwood, 7 Pet. (U. S.) 147, quoting Archbold, the court says: “Error in the process, or through default of the clerk” is a ground for error coram nobis. The case having been assigned to Judge Honoré, and the file wrapper remaining stamped “Petit,” it was the default of the clerk, and that alone which misled Judge Petit as to the assignment of the case. The court acted on the facts as presented by the clerk; and as presented by the clerk the court did not have the truth. In Domitski v. American Linseed Co., 117 Ill. App. 292, where a clerk of the court failed to keep a declaration in the files or to make a proper entry of it, the court held that the failure of the defendant to file a plea in time to prevent a default and judgment, because the clerk had not kept the declaration in the files or made a proper entry of it, was attributable to the fault and misprision of the clerk. So, in the instant case, the clerk’s fault and misprision were in not changing the assignment on the wrapper. A judge, as well as an attorney, may be misled by the fault of a clerk. In Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516 (supra), the court said: “The error in fact which may be assigned under the motion must be some fact unknown to the court which, if known, would have precluded the rendition of the judgment.” Here Judge Petit would not have rendered judgment if he had known the fact that the clerk had failed to stamp the wrapper correctly, that is, with the word “Honoré.” It was not a matter pertaining to the rules of the court; we assume Judge Petit knew the rules, but it was purely a matter of fact apart from the rules, that is, what representations persuaded him to render judgment in a case which was not pending before him and over which he had no jurisdiction. The defendant was present in another court where it had been announced by the official and authoritative calendar his case was pending. Evidently the failure of the clerk to put the name of the judge to whom the case was assigned on the outside of the file wrapper induced Judge Petit to act. He relied upon the facts as presented by the clerk, a ministerial officer of the court, and the record as set forth in the motion shows that the representations of the clerk were untrue. As in Domitski v. American Linseed Co., 117 Ill. App. 292 (supra), the court said: “It would be a great hardship to hold this defendant to pay this large judgment for damages to the plaintiff, for which, upon the facts stated in the affidavits, the defendant was not liable, because of the negligence and misprision of the clerk.”

The tendency of the law in this State is to allow the motion under section 89 whenever it is obvious that the action of the court is based upon the fault (either of omission or of commission) of the clerk of the court. As said in Brady v. Washington Ins. Co., 82 Ill. App. 380: “A default of the clerk is one of the recognized grounds for a writ of error eoram nobis.” Tidd’s Practice, sec. 1137; Silverman v. Childs, 107 Ill. App. 522. In the latter ease the court said: ‘ ‘ The ignorance of the court as to the facts arose from the neglect of the clerk to strike the case off the regular calendar when he placed it upon the short cause calendar. Such negligence of the clerk is sufficient ground for a writ of coram nobis, and authorized the court to pass upon the motion to set aside the judgment at a subsequent term.” In Brady v. Washington Ins. Co., supra; Silverman v. Childs, supra; and Aaron v. Jefferson Ice Co., 129 Ill. App. 570, there was, as in the instant case, a failure on the part of the clerk of the court to do a necessary ministerial act. In each of those cases the court entered an order based on a mistake or misrepresentation of the clerk, and then allowed the motion in the nature of the writ of error coram nobis. Buie 2 provides that the clerk “will place upon the wrapper of each case the name of the judge to whom the same is assigned.” That was intended as a simple and convenient guide for the court, to save it from making a search through a mass of records. The motion sets up .that the name of the judge to whom the case was assigned was not placed upon the wrapper but the clerk by mistake left there the name of another judge and the latter acted through the misinformation of the clerk. To allow the motion will work no injustice; the case has not been tried on its merits; the matter here involved on appeal is one of procedure, and under the circumstances, assuming what is admitted by the special demurrer, it is only reasonable that the order of the lower court vacating the judgment be affirmed.

• Other points have been argued and we have examined them, but, in view of the foregoing, it has become unnecessary to deal with them here. As to the motion of appellee to dismiss the appeal on the ground that certain documents never became part of the common-law record and were not incorporated in a bill of exceptions, we are of the opinion that it should be denied.

Finding no error in the record the judgment is affirmed.

Affirmed.


text:
    Roy C. Holbrook, Defendant in Error, v. L. C. Lawton, Plaintiff in Error.
    Gen. No. 22,670.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Dismissed.
    Opinion filed October 10, 1917.
    Statement of the Case. .
    Action in assumpsit by Boy C. Holbrook, plaintiff, against L. C. Lawton, defendant. From a judgment for plaintiff by default, defendant brings error.
    See Holbrook v. Lawton, Gen. No. 22,356, ante, p. 497, in which an appeal was taken by plaintiff from an order vacating and setting aside the judgment.
    John S. Miller and IíEanierre & Pratt, for plaintiff in error.
    Heldman, Jacobson & Graff and Thomas J. Dawson, for defendant in error; William E. Baffertv, of counsel.

      Abstract of the Decision.
    Appeal and error, § 9* — when writ of error to review and reverse ■judgment dismissed. A writ of error to review and reverse a judgment taken by default will be dismissed where, on an appeal from an order vacating and setting aside the judgment, the judgment of the lower court was affirmed, as the reason for the writ of error failed.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Anna J. S. Harmon, Appellee, v. A. P. Callahan, Appellant.
    Gen. No. 22,404.
    Municipal Court of Chicago, § 27

       — what ruling of trial judge must Be preserved in MU of exceptions. The ruling of a trial judge of the Municipal Court of Chicago in a first-class case striking an amended affidavit of merits from the files must be preserved in a bill of exceptions.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Rehearing denied October 25, 1917.
    Willard C. McNitt and Joseph A. Bates, for appellant.
    Culver, Andrews, King & Cook, for appellee; Wells M. Cook, of counsel; on petition for rehearing. Christopher King, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal from a judgment entered October 29, 1915, for $2,297.60, in the Municipal Court of Chicago, in a first-class case, recovered by appellee against the appellant, as guarantor .of the rent of a certain lease.

Upon the motion of the appellee the trial judge struck the appellant’s second amended affidavit of merits from the files (except a certain part thereof) and entered judgment in favor of the appellee for want of an affidavit of merits of defense. There is no bill of exceptions in the record. The record, as prepared by the clerk of the Municipal Court on a prcecipe, shows appellee’s statement of claim, appellant’s second amended affidavit of merits, a recital of plaintiff’s motion to strike the same from the files, the election of appellant to stand by his second amended affidavit of merits, the assessment of damages by default for want of an affidavit of merits, the overruling of the motion in arrest of judgment, and the judgment. A motion was made in this court by the appellee to dismiss the appeal or affirm the judgment on the record, and an order entered pursuant thereto as follows: “April 7, 1916, Mo. appellee to dismiss appeal or aff. judgt. with statutory damages as per sugg. denied.”

It is claimed by appellee that a motion to strike a pleading from the files, unless preserved by bill of exceptions, cannot be reviewed in this court unless excepted to and preserved by bill of exceptions. The record shows that upon the motion of the plaintiff being allowed, and the second amended affidavit of merits being ordered stricken from the files, the defendant elected to stand by his second amended affidavit of merits, and that upon the court assessing the plaintiff’s damages the defendant moved the court in arrest of judgment, which motion was overruled; and that upon the court ordering that the plaintiff have judgment the defendant prayed an appeal.

Although, in Whiting v. Fuller, 22 Ill. 33 (1859), the court said: “If a plea be stricken from the files, it still remains a part of the record for the purpose of presenting the question of the propriety of the action of the court in striking it from the files,” that seems no longer to be the law. In Snell v. Trustees of M. E. Church of Clinton, 58 Ill. 290 (1871), Mr. Justice Sheldon used the following language: “In regard to the ruling of the court in striking the third plea from the files, the motion and ruling of the court in that respect are not preserved in the bill of exceptions, and the same are not before us for consideration. This court has frequently said that motions of. this character do not become a part of the record.” In Reed v. Horne, 73 Ill. 598 (1874), Mr. Justice Scott, who delivered the opinion of the court, said: “It is fatal to the objection taken that neither the motion nor any exception to the decision of the court striking out the plea is preserved by a bill of exceptions, as required by the rules of practice in this court. Such motions do not become a part of the record unless made so by means of a bill of exceptions. The rule on this subject was declared in Snell v. Trustees of M. E. Church of Clinton, 58 Ill. 290, and that case is conclusive of the same question in the case at bar.” In Fanning v. Russell, 81 Ill. 398, the court used the following language: “We cannot, on this transcript, review the judgment of the Circuit Court in striking the pleas from the files. We have nothing in the record showing what cause was made to appear before that court. There is no bill of exceptions preserving the evidence heard by the Circuit Court upon that motion. It will not be denied that eases may occur where such an order would be proper. There being no hill of exceptions to show the Contrary, this court will presume that a proper case for such an order was made before the Circuit Court.”

Likewise, in Gaynor v. Hibernia Sav. Bank, 166 Ill. 579, Mr. Justice Cartwright said: “The only error alleged is that the court erred in striking the plea from the files, and it has been repeatedly held that such action of the court cannot be considered unless, the motion, decision and an exception thereto are presented in a bill of exceptions, so that the error, if any, may appear from the record. Where there is no bill of exceptions the motion and decision do not become a part of the record, and it will be presumed that the action of the court was correct.” And after citing certain cases, he continued: “In the last case it was said that the pleas stricken from the files presented on their face a good defense to „the action, but as a case might occur where an order striking them from the files would be proper, it would be presumed, in the absence of a bill of exceptions, that a proper case for such an order was made.” He further stated, in the course of the same opinion, that Whiting v. Fuller, supra, has been overruled. In Mann v. Brown, 263 Ill. 394, Mr. Justice Farmer, in a case appealed from a judgment of the Municipal Court of Chicago, used the following language: “Motions and orders striking pleas from the files, and exceptions thereto, should be preserved by a bill of exceptions and cannot be made part of the record otherwise.” In Witteman Co. v. Goeke, 200 Ill. App. 108, the court said: “A pleading which has been stricken from the files is no longer a part of the common-law record and can only be brought to the attention of the upper courts by a bill of exceptions. Such a motion is not based upon any defect of the pleading which could be reached by demurrer, but upon other grounds, and the parties have a right to offer proofs by affidavit or otherwise, and without a bill of exceptions it cannot be known whether the proof justified the order. Unless those proofs are preserved by a bill of exceptions, the order must be presumed to be correct.”

It follows, therefore, from the law as it exists in this State, that, although it may be obvious from the record, that the only ground upon which the trial court acted was (as in the instant case, for example) the statement of claim and the striking of the second amended affidavit of merits; such a record, without a bill of exceptions showing what transpired in the way of additional facts and circumstances at the trial or that there were no additional circumstances and facts, does not permit this court to review the judgment of the trial court, in striking the pleading from the files. The abolition of demurrers in the Municipal Court does not seem to make any difference. Of course, it is difficult, to understand the reason for the rule. It certainly would seem to be more rational to allow the court of review to consider the record without, a bill of exceptions whenever it is satisfied from the record that a bill of exceptions would add nothing material. In the instant case, therefore, although we are of the opinion that the second amended affidavit of merits sufficiently charges appellee with failure, after taking possession of the premises, to exercise reasonable diligence to re-rent them and thus reduce the damages for which appellant might be liable and that the second amended affidavit of merits should not have been stricken, we are compelled to hold, in view of the law requiring the appellant to preserve in a bill of exceptions the ruling of the trial judge striking the second amended affidavit of merits from the files, that in the record as it is presented to us for review, without a bill of exceptions, there is no error.

Affirmed.


text:
    Barbara Schreiber, Appellee, v. Rudolph E. Schreiber et al., Appellants.
    Gen. No. 22,419.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Doweb, § 172

       — what evidence sufficient to show demand for assignment of and refusal to make. The testimony of a widow that she demanded of her husband’s son a third of the property of the deceased husband and his reply that she would have to wait, held to be sufficient evidence, although denied by such son, of a demand for an assignment of dower and a refusal of same.
    2. Dower, § 125* — when demand for assignment of is sufficient. A demand for an assignment of dower made within thirty days after the husband’s death is sufficient and relates back to the time of death.

      Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed October 10, 1917.
    Statement of the Case.
    Petition for assignment of dower and for damages against heirs for failure to set over dower by Barbara Schreiber, complainant, against Rudolph E'. Schreiber, Otto W. Schreiber, Martha L. Schreiber and Clara J. Ritter, defendants. From a decree allowing complainant the sum of $320 per year for life in lieu of dower and the sum of $1,040 as damages, defendants appeal.
    Thorhtoh M. Pratt and Arthur R. Wolfe, for appellants ; Mauierre & Pratt, of counsel.
    Joseph R. Burres, for appellee; Isidore Fried, of counsel.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

3. Doweb, § 176 — when claim that widow waived any claim for damages for failure to set over dower is unavailable on appeal. .The claim that a widow, by electing to take an annual value in lieu of dower and agreeing with the heirs as to the amount of the yearly value, waived and released any claim for damages for failure to set over dower she may have had, is not maintainable where the appeal is based upon the claim that the chancellor erred in determining that the evidence sufficiently proved a demand which was such that it entitled the widow to damages from the time of the death of her husband.


author: Mr. Presiding Justice McBride

text:
    Jane Darrow, Appellee, v. Edgar C. Darrow, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Bast St. Louis; the Hon. H. L. Bbowking, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed October 24, 1917.
    Statement of the Case.
    Bill for separate maintenance by Jane Darrow, complainant, against Edgar C. Darrow, defendant. From a decree in favor of plaintiff, defendant appeals.
    Dan McGlynn, for appellant.
    Silas Cook, for appellee!

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

Abstract of the Decision.

Appeal and ekbob, § 1395 — when finding is against weight of evidence. A finding of a chancellor is against the manifest weight of the evidence where it is based upon the testimony of one party alone, which is unreasonable in itself, and is contrary to that of the other party, which is corroborated by at least two witnesses.


text:
    Louis Armster, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed October 24, 1917.
    Statement of the Case.
    Action by Louis Armster, plaintiff, against the Metropolitan Life Insurance Company, defendant, to recover upon two insurance policies issued by defendant on the life of one Walter Owens, wherein plaintiff was named as beneficiary. From a judgment for plaintiff of nil dicit, upon demurrer to defendant’s plea being sustained and defendant’s refusal to plead over, defendant appeals.
    Miles Frederick Gilbert, for appellant.
    W. F. Scott, for appellee; Basil Baker, of counsel.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

Abstract of the Decision.

1. Contracts, § 166 — when duty of courts to enforce as made. It is not within the province of a court to make contracts, but it is the duty of the court to enforce contracts as made, unless public policy would prevent such enforcement.

2. Insurance, § 86* — what is nature of life insurance policy. A life insurance policy payable to a beneficiary named therein is a species of property; it is in the nature of a chose in action which, subject to certain conditions, varying according to the terms of a contract, is payable upon the contingency of death or at a stated time.

3. Courts, § 150* — when decisions of Supreme Court are controlling. Where there is a conflict in the decisions of the federal courts or any other courts with the decisions of the higher courts of the State, it is the duty of all State courts to follow the decisions of the Supreme Court of the State.

4. Insurance, § 407* — what is effect of legal execution of insured on rights of heneftciary. The legal execution of an insured does not, on grounds of public policy, forfeit the rights of the beneficiary of an insurance policy issued upon the life of such person, where there is no limitation as to the manner of death in such policy.


text:
    John N. Upton et al., Appellees, v. M. W. Springer et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit, Court of Hamilton county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed October 24, 1917.
    Statement of the Case.
    Bill by John N. Upton, C. M. Hays, J. H. York and W. P. York, complainants, against M. W. Springer, Samuel Todd and John A. Lynch, as school directors of School District Number Sixty-two, in Hamilton County, Illinois, to restrain defendants from removing a school building to another location or from executing or carrying out any contract for such removal. From a decree granting a permanent injunction as prayed, defendants appeal.
    Abstract of the Decision.
    Appeal and error, § 1786

       — when decree reversed because of insufficiency of record. Where "the specific facts upon which a decree was rendered were not set forth therein or in a certificate of evidence preserving the same, such decree will be reversed.
    David J. Underwood and Creighton & Thomas, for appellants.
    U. Anderson and Conrad Schul, for appellees.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.