text:
    Lucille Finlen et al., Appellees, v. Julia Foster et al., Appellants.
    Gen. No. 6,566.
    1. Partition, § 119

       — when right to have solicitor’s fees taxed as costs is not defeated. The fact that the original bill in a partition suit was defective does not defeat the right of complainants to have solicitor’s fees taxed as costs, where such defects were corrected in an amended bill by complainants on their own accord before the matter was brought to their attention by the pleading of the opposite party.
    2. Partition,’ § 29* — who are necessary parties to suit. The owners and holders of notes secured by trust deeds to an undivided interest in real estate are necessary parties in partition proceedings.
    3. Partition, § 29* — when holder of note secured by trust deed should be made party by description of unknown owner of note. If it is impossible for the complainant in partition proceedings to find out who is the owner of a note secured by a trust deed covering an undivided interest in the land, he should be made a party by the description of unknown owner of the note.
    4. Partition, § 119* — when no right to have solicitor’s fees taxed as costs exists. Complainants are not entitled to have solicitor’s fees taxed as costs in partition proceedings where they fail, in their amended bill, to make the owners and holders of notes secured by a trust deed to an undivided interest in the land parties, and they fail to correctly state the interests of the defendants, necessitating the employment of counsel by them to protect their rights.
    5. Appeal and error, § 855* — what must be embodied in certificate of evidence for purpose of review. Alleged improper conduct and motives of solicitors for the defendants in the conduct of the defense to a partition suit will not be considered on appeal where such facts were not proved in the trial court and embodied in the certificate of evidence.
    6. Appeal and error, § 1069* — what constitutes joinder in error. The filing of a brief by appellees is the equivalent of a joinder in error.
    7. Appeal and error, § 1694* — when right to move to dismiss appeal is waived. By joining in error complainants and appellees waive the right to move to dismiss an appeal by several defendants in a partition suit from an order that solicitor’s fees be taxed as costs against the interests of all the defendants having title as tenants in common to the property partitioned and sold, on the ground that there was no judgment against all of the defendants as recited in the bond, but against a lesser number, and because certain of the defendants who assigned errors were not injured by the order and, hence, that if errors were not well assigned as to part of the defendants they were bad as to all.
    8. Appeal and error, § 1075

       — when some of appellants should he permitted to assign additional errors. Where there are errors which affect only some of the appellants in a case, the appellants affected by those other errors should be permitted to assign additional errors separate from the other appellants.
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Reversed.
    Opinion filed July 25, 1918.
    Corlett & Clare, for appellants.
    H. M. Kelly, for appellees.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On April 25, 1894, Patrick Keenan, Sr., died intestate, the owner of a farm in La Salle county and leaving him surviving his widow, and Julia Poster, Sabina Coughlin, Margaret Walsh, Alice Keenan, Patrick Keenan, Jr. and William J. Keenan, his children, each entitled to an undivided one-seventh of said real estate, and the widow of Thomas Keenan, a son of Patrick Keenan, Sr., who had previously died, and also Lucille Pinlen and Maggie Keenan, children of said Thomas Keenan, each owning one-fourteenth of said real estate. On May 25, 1917, Lucille Pinlen and Maggie Keenan filed a bill for partition of said land against the other owners and other persons. There was much pleading, including answers and a cross-bill and answers thereto, and finally a sale of the premises by a master. As soon as the master’s report of sale was approved, complainants petitioned the court to have their solicitor’s fees fixed and taxed as costs and paid out of the proceeds of the sale. This was resisted by certain defendants, and there was a hearing, and the petition was granted and solicitor’s fees were allowed to the complainants to be taxed as costs against all those interested in the real estate. Certain defendants appealed from that order and preserved the evidence upon which it was based.

Section 6 of the Partition Act (J. & A. 8319) requires every person having any interest in the premises, who is not a petitioner, to be made a defendant, and sections 7 and 8 (J. & A. 8320, 8321) provide for making unknown parties defendant. Section 10 (J. & A. 8323) provides that such unknown owners or parties in interest may be notified by publication as in chancery. Section 40 (J. & A. ft 8353) provides that when the rights and interests of all the parties in interest are properly set forth in the petition or bill, the court shall apportion the costs, including solicitor’s fees, among the parties in interest, so that each party shall pay his or her equitable portion unless a good and substantial defense is interposed. The question when solicitor’s fees should be taxed as costs and paid out of the fund under these statutory provisions has been frequently discussed in this State. McMullen v. Reynolds, 209 Ill. 504, reviews some of the cases. In Hynes v. Jennings, 262 Ill. 268, on p. 276, the court says that the true rule is that when the bill correctly sets up the rights and interests of the parties and the suit is an amicable one, the statute authorizes the taxing of a fee; but where the attitude of the complainants towards the defendants is hostile so that defendants are required to employ counsel, it would be inequitable to make them also pay solicitor’s fees for the complainants. In Mansfield v. Wallace, 217 Ill. 610, where the rights and interests of all the parties were not properly set forth, but necessary parties were omitted, it was held error to tax complainants’ solicitor’s fees as costs. That such taxation should only be allowed where the proceedings are amicable is held in Kilgour v. Crawford, 51 Ill. 249, and Jones v. Young, 228 Ill. 374. Appellees contend that they were entitled to this allowance under said statutes and authorities. Appellants contend that complainants did not set forth the interests of the several parties correctly; that necessary parties were omitted; that the suit was not amicable, and that it was necessary for the other owners to employ counsel to properly set forth their respective interests and to bring in omitted parties, so that the interests of the defendant owners would be properly protected.

The original bill was seriously defective. On May 31, 1917, six days after the original bill was filed, and on ex parte leave of court, complainants filed an amended bill in which some of the defects of the original bill were cured. We are of opinion that where complainants in a partition bill correct such defects of their own accord before the matter is brought to their attention by the pleading of the opposite party, the defects should not defeat solicitor’s fees. Fread v. Hoag, 132 Ill. App. 233. Therefore, the question as to the sufficiency of the bill in this case is to be determined by the amended bill.

The amended bill alleged that on April 18, 1917, defendant William J. Keenan conveyed his interest in said real estate to James M. O’Toole, trustee, to secure the payment of $1,500, evidenced by three notes aggregating that sum, made by said William J. Keenan and his wife, payable to their order and by them indorsed in blank, due on or before 2 years from date, with interest at six per cent, per annum, and that complainants do not know who is the legal owner of said notes. The amended bill made O’Toole, as trustee, a defendant, but did not make the owner or owners of those notes parties defendant. A material question is whether the owner of those notes was a necessary party in this partition suit. Mortgagees have been held necessary parties to partition suits in this State in numerous cases, contrary to the holding in some other States where the partition statute differs from ours. In Loomis v. Riley, 24 Ill. 307, a former partition suit was involved. It was argued there that a mortgagee was not a necessary or even a proper party to a suit for partition. It was held that the statute required mortgagees to be made parties in such a case. This was repeated in Cheney v. Ricks, 168 111. 533, where it was held necessary that the decree should determine the rights and interests of the mortgagees and to so direct partition as to preserve the interests of all such parties. Attention is there called to the statute which would transfer the lien of the mortgage to the portion assigned to the mortgagor, and we think the implication is that the mortgagee is a necessary party because that effect would not follow if the mortgagee was not a party and so not bound by the decree. This necessity that mortgagees should be parties in partition suits is also shown in Kilgour v. Crawford, supra; Mansfield v. Wallace, supra, and Barr v. Barr, 273 Ill. 621. In modem business transactions the practice has arisen of making notes payable to the order of the maker and by him indorsed and delivered, and securing the same by a deed of real estate to a trastee, who very often does not know that he has been named as trustee and does not know who holds the notes secured thereby. In Scanlan v. Cobb, 85 Ill. 296, a suit in equity, it was held that both the trustee and also the beneficiary in such an instrument have equitable interests to be affected by 'the decree and are therefore necessary parties. In that case Goodman was the owner of a note secured by such a deed of trust, and the trustee was a party but Goodman was not, and his omission was held to be an error. In Clark v. Manning, 95 Ill. 580, a mechanic’s lien suit, the owner of the indebtedness secured by a deed of trust was held to be an indispensable party. To the same effect is McGraw v. Bayard, 96 Ill. 146. Vogle v. Brown, 120 Ill. 338, involved a previous partition suit in which there had been a trust deed to Emery to secure money borrowed from Brown, evidenced by a note owned by him. Emery had been made a defendant in the partition suit, but Brown had not. It was held that on this account the partition decree was manifestly erroneous, and that Brown, not having been made a party to the suit, was not bound thereby. In Bannon v. Thayer, 124 Ill. 451, there was a similar trust deed securing a like note owned by Thayer, who filed a bill to foreclose the trust deed. Bannon relied on a certain mechanic’s lien proceeding to defeat the foreclosure. Thayer had not been a party to that proceeding and he was held not bound by the decree in the mechanic’s lien suit because he was a necessary party thereto and had been omitted. In Dubs v. Egli, 167 Ill. 514, it was held that in suits respecting trust property the trustee and the beneficiary are necessary parties, the trustee because he holds the legal interest, and the beneficiary because he has the equitable and ultimate interest to be affected by the decree. We therefore hold that the owners and holders of said three notes were necessary parties. There were some obvious sources of information as to the holder open to the complainants. Sometimes the trustee in such a trust deed knows who the owner is, and the proof shows that O’Toole, the trustee, was an employee in the courthouse where this bill was filed. The maker may have known who held the note, and he was a relative of the complainants, and if any diligence was required from the complainants to learn the names of the parties in interest then that source of information should have been resorted to or proof made excusing it. But if it was sufficient for complainants to aver that they did not know who the holder was, then it was their duty to make the unknown owner a party defendant and take the statutory steps to bring him into court. In Bannon v. Thayer, supra, it was held that if it was impossible for the complainant to find out who was the owner of the note secured by the trust deed there involved, he should have been made a party by the description of the unknown owner of the note. It is obvious that the interests of the defendant owners would have been prejudiced by leaving the record in the condition set forth in the amended bill. If partition had been made, the lien of this debt would still have rested upon this whole farm, because the holder of the notes secured by an undivided interest therein had not been made a party. In case partition had been made, he had a right to test the question whether one-seventh in value of the land had in fact been set off to the maker of his notes, for, if not, it might not be sufficient to pay his debt. Manifestly, in case of a sale, the fact that the holder of these notes was not a party to the suit would tend to cloud the title to the land and would be calculated to prevent its selling for its full value. The solicitors for certain of the defendants, appellants here, hunted up the holder of these notes, Edward Radigan, and caused him to file an intervening petition, asking to be made a defendant, and he was made a defendant and thereby the interests of the parties were protected.

The allegations of the original bill made Margaret Walsh the owner of one-seventh and the children and widow of Patrick Keenan, Jr., deceased, the owners of one-seventh. The amended bill set up a judgment in 1897 against Patrick Keenan, Jr., and the sale of his interest in this land under execution and a deed under said execution sale to Margaret Walsh. This left Margaret Walsh the owner in fee of two-sevenths. The amended bill then proceeded to state that complainants did not know whether Margaret Walsh acquired the interest of Patrick Keenan, Jr., by said sheriff’s deed or whether she held it as security for the amount bid at said sheriff’s sale with interest. This was not stating the interests of either Margaret Walsh or of the heirs at law and widow of Patrick Keenan, Jr., deceased. They could not safely permit a decree to go under the allegations of said amended hill or suffer a default and permit complainants’ solicitors to take care of their interests. These allegations invited Margaret Walsh and said heirs and widow of Patrick Keenan, Jr., deceased, to procure solicitors and have their rights and interests properly stated in other pleadings. This was what actually occurred. The widow and heirs at law of Patrick Keenan, Jr., procured a solicitor, who filed an answer and a cross-hill for them. Margaret Walsh procured other solicitors, who filed an answer and an amended answer to said amended bill and an answer to said cross-bill and, under these pleadings, it was finally determined that Margaret Walsh purchased said certificate of sale and obtained said deed under an arrangement with Patrick Keenan, Jr., that she should hold the title thereby acquired to secure the sum she paid for said certificate, and to secure her in the payment of certain other sums which Patrick Keenan borrowed from her, and for all which he afterwards gave her his note, and that there was due her $1,488.21, with interest at 5 per cent, per fl.nnnm. from November 13, 1917, upon payment of which her interest in the share inherited by Patrick Keenan, Jr. would cease and the same would become the property of the heirs at law of Patrick Keenan, Jr., deceased, subject to his widow’s dower therein. It does not appear that complainants sought to learn these facts before filing this bill, as they might easily have done from their relatives concerned in the transaction. We are of opinion that the bill was so framed as to require these defendants to employ solicitors to protect their interests.

The original bill said nothing about administration upon the estate of Patrick Keenan, Jr. The amended bill averred that there was no estate of any deceased owner remaining unsettled and not fully disposed of. In fact, there had been no administration upon the estate of Patrick Keenan, Jr. He died 3 years, 11 months and 24 days before the original bill was filed. The time to take out letters of administration upon his estate and sell his interest in this real estate to pay his debts had not expired. Thereafter the widow of Patrick Keenan, Jr., took out letters of administration upon his estate and it was judicially ascertained that, besides said note, on which as just stated there was due $1,488.21, it was also necessary to have from the proceeds of this real estate the further sum of $2,500 to settle the estate of Patrick Keenan, Jr. The administratrix came into this case by an intervening petition and was made a defendant thereunder. We have not found anything in this record to show that appellants’ solicitors caused her to intervene. But appellees’ brief in this case alleges that this was done through the “pernicious activities” of appellants’ solicitors. Appellees assert in their brief that this sum of $2,500 was all for the widow’s award in the estate of Patrick Keenan, Jr., and that administration was wholly unnecessary. We find no proof in this record that said sum was only for the widow’s award. All that is shown is that a widow’s award had been allowed and that $2,500 was required out of the interest Patrick Keenan, Jr., had had in this land in order to settle his estate and relieve one-seventh of this land from liability for his debts. Manifestly, it was necessary for the defendant owners to have administration and have that matter settled, because an administrator could afterwards be appointed and he could sell the interest of Patrick Keenan, Jr., in this entire farm, and a partition, if ma.de, would not bind such administrator; and, in case of sale, this defect and omission in the bill would tend to reduce the price at which the premises could be sold. In this respect the bill and the amended bill did not correctly state the interests of the parties, nor did the complainants so conduct the litig’ation that it was unnecessary for the defendants to employ counsel.

The bill and the amended bill stated that Delia Hartigan was in possession of the entire farm as a tenant, but that complainants did not know the terms of her tenancy or the rental which she was obliged to pay; and they alleged there was rental due them which had been collected by John J. Foster, the husband of defendant Julia Foster. If complainants desired to state the interests of the parties so correctly as to entitle them to have solicitor’s fees taxed as costs, it seems as if they should have made inquiry of Mrs. Hartigan in person or of the other heirs at law. For all that the bill or amended bill states, Delia Hartigan may have been in possession for a lease for her life, granted to her by Patrick Keenan, Sr., in his lifetime, or she may have had a lease entitling her to possession until some future date which could not be cut off by this partition. The bill and the amended bill contain no explanation why over 23 years had been allowed tc elapse after the death of Patrick Keenan, Sr., before partition was sought. These matters were all explained by the answer of the defendants who are appellants, which set up that, after the death of the ancestor, his adult heirs at law and the guardian of those who were minors leased these premises to the widow of the intestate for her natural life, and she employed John J. Foster, husband of Julia Foster, defendant, to sublet the property for her, collect the rents, pay the taxes and manage the property, and that the widow died December 22, 1916, and that prior to her death her agent had leased the property to Delia Hartigan for a term from March 1, 1916, to March 1, 1918, and that said agent held her notes for so much of the rent as had not been paid and distributed among the heirs. This left a question whether this sublease to Delia Hartigan expired at the death of the widow or continued until the end of the term. The decree of sale provided for possession being given on March 1, 1918, which was a recognition of the tenancy of Delia Hartigan for the full term of said lease. Manifestly, a decree drawn upon said bill and amended bill upon a default of all defendants would have fixed nothing as to the extent of the leasehold interest and right of possession of Delia Hartigan or when it would expire, and this must necessarily have been injurious to the interests of the defendants, either in case of a partition or of a sale.

There are statements and omissions in the original bill and in the amended bill, and statements made by the solicitor for complainants upon the hearing of the application to have complainants’ solicitor’s fees taxed as costs and in appellees’ brief here which have a tendency to show that this was not an amicable suit, but was for some reason hostile in its character, but inasmuch as the matters already discussed satisfy us that this was not a proper case for the taxation of solicitor’s fees as costs, we deem it unnecessary to discuss those other matters. Appellants also contend that in any event the sum awarded as solicitor’s fees was excessive; but we for the same reason omit the discussion of that question. Appellees rely much upon their allegation that this was a consent decree. If it is such, that is only because complainants accepted the result of the labor of the counsel for the various defendants in finding and bringing in various necessary parties and stating various material matters, omitted by complainants. Appellees’ brief states as facts various matters which they urge as reasons why this order should be affirmed, which we are not; able to find in this record. Among these are alleged facts which tend to charge the solicitors for appellants with improper conduct and motives. If any such facts existed and were material they should have been proved in the court below and embodied in the certificate of evidence. We must try this case by the record. Appellees ought not to seek to prejudice us in this case by recitals not supported by the record.

The order for solicitor’s fees directed that they be taxed as costs against the interests of all defendants having title as tenants in common to the property partitioned and sold. From this order an appeal was prayed by and allowed to and perfected by Julia Foster, Margaret Walsh, Alice Keenan and William J, Keenan, four of the owners, and John J. Foster, the husband of Julia Foster, and Kadigan. Kadigan and John J. Foster did not own any of the land and were not harmed by the order. The appeal bond recited a decree against said six defendants for $2,000, to be taxed as costs. Said six defendants assigned errors here. Appellees in their brief argue that the appeal should be dismissed or said order affirmed because there is no judgment against six, as recited in the bond, but only against four, and because two who assigned errors are not injured by the order, and they argue that errors jointly assigned, if not well assigned as to two, are bad as to all. If appellees had moved to dismiss the appeal on these grounds and no further action had been taken by appellants, said motion should have been granted. Appellees did not move to dismiss the appeal but filed briefs. The practice prior to 1872 was to consider the filing of briefs by appellee or defendant in error as a joinder in error. By section 69 of the Practice Act of 1872 and by section 108 of the Practice Act of 1907 (J. & A. ft 8645), if appellee or defendant in error does not plead in proper time after error assigned, the cause is to be treated as if error had been joined. By rule 13 of this court (137 Til App. 624) appellees desiring to plead are required to file their pleas 5 days before their briefs are due. Appellees here filed no pleas after errors assigned, but filed briefs, and the ease is therefore to be treated as if error had been joined. In actual practice the filing of appellees’ brief is held to be equivalent to a joinder in error. Truesdale v. Ford, 40 Ill. 80; DeBeukelaer v. People, 25 Ill. App. 460; Ferrias v. People, 71 Ill. App. 559; Fread v. Hoag, 132 Ill. App. 233; McCormick v. Higgins, 190 Ill. App. 241; Tobias v. Tobias, 193 Ill. App. 95.

By joining in error appellees waived the right to move to dismiss the appeal. Matson v. Connelly, 24 Ill. 143; Brockway v. Rowley, 66 Ill. 99; Dinet v. People, 73 Ill. 183; Kane v. People, 13 Ill. App. 382; Fread v. Hoag, supra; Kircher v. M. Keating & Sons Co., 145 Ill. App. 1; People v. Rudorf, 149 Ill. App. 215. Appellees cannot avoid that waiver by suggesting in their briefs that we dismiss the appeal. If they had moved in apt time to dismiss the appeal and that motion had been granted, the owners who appealed could have withdrawn the record, assigned errors thereon, sued out a writ of error and asked a supersedeas. Presumably it would have been granted, but, if not, or if the solicitor’s fees had been taxed and paid before the owners could arrest that action, then, upon the reversal of the order the solicitor for appellees would have been required to account to the heirs therefor, as directed in Mansfield v. Wallace, 217 Ill. 610, on p. 635. After appellees filed their briefs the four owners who appealed asked leave jointly and severally to assign additional errors on their own behalf. Appellees resisted that motion. It sometimes happens that some alleged errors are common to all appellants, but on discussion on appeal it is seen that there are other errors which affect only part of the appellants. We think it proper practice in such a case to permit the appellants solely affected by those other errors to assign additional errors separate from the other appellants. Any other rule would drive such parties to separate appeals at additional and unnecessary expense. As appellees had waived their right to move to dismiss the appeal, we granted the motion, and those owners jointly and severally assigned errors on the record separately from John J. Foster and Radigan. Our rule 15 (137 Ill. App. 639) permits appellants and plaintiffs in error to assign additional errors by leave of court. We are. of opinion that the order appealed from is erroneous under these additional assignments of error. We think we ought not to dismiss this appeal after appellees have waived their right to move to dismiss it when the only effect would be to put the parties to the expense of again litigating the matter upon a writ of error, with the same result. The order taxing solicitor’s fees as costs is therefore reversed.

Reversed,


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    Henry W. Mahle et al., Appellees, v. Otto F. Mahle et al. Otto F. Mahle, Appellant.
    Gen. No. 6,540.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Stark county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the February term, 1918.
    Affirmed.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Bill by Henry W. Mahle, Mary Best, Ida Davidson and Rose Ann Creen, complainants, against Otto F. Mahle and others, defendants, for the construction of the will of Ferdinand Mahle, deceased. From the decree rendered, defendant Otto F. Mahle appealed to the Supreme Court, from which the case was transferred to the Appellate Court.
    John W. Fling, Jr. and Barnes, Magoon & Black, for appellant.

      Abstract of the Decision.
    1. Estoppel, § 6

       — when party may not assume inconsistent position. A party who has with knowledge of the facts assumed a particular position in judicial proceedings is estopped to assume a position inconsistent therewith to the prejudice of the adverse party.
    2. Estoppel, g 6* — when residuary legatee agreeing to construetion of will as to vesting of legacies may not complain of provision of decree as to time of payment. Where the parties to a hill for the construction of a will, providing that testator gives all his real and personal property to his wife for life and gives to his son all the realty on condition that he pay to the rest of the children certain specified sums, agree that title to the realty vests in the son subject to the life estate of the surviving widow and that the legacies to the children other than such son are vested and a charge upon the real estate devised to the son, the latter cannot complain that a provision in the decree of the chancellor that the legacies were payable in one year was incorrect, and that they were not payable until the death of the life tenant, even though the construction agreed to by the parties was incorrect.
    3. Equity, § 547* — how oral evidence cannot he preserved for review. Oral evidence in a chancery case cannot be preserved for review by a certificate of the clerk of court, in the absence of a certificate of evidence or a showing in the decree of the hearing of proofs.
    J. H. Rennick and T. W. Hoopes, for appellees.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    Alfred S. Hillenbrand, Defendant in Error, v. Edythe Hillenbrand, Plaintiff in Error.
    Gen. No. 6,545.
    (Not to be reported in full.)
    Abstract of the Decision.
    I. Appeal and error, § 1268

       — when presumed chancellor knew whether case was properly called. It must be presumed that the chancellor in an equity case knew whether the case was called under such conditions and circumstances as to require the counsel for defendant to act.
    2. Judgment, § 132* — when discretion as to setting aside not disturbed. A motion to set aside a default or judgment is addressed to the sound discretion of the court, and, unless it appears that the discretion has been wrongfully and oppressively exercised, a reviewing court will not interfere.

      Error to the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed in part and reversed in part with directions.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Bill for a divorce by Alfred S. Hillenbrand, complainant, against Edythe Hillenbrand, defendant. A decree of divorce was entered in favor of complainant, granting the custody of the minor children to complainant and dismissing defendant’s cross-bill. At the same term of court defendant moved to vacate the decree and to be allowed to be heard on the merits, which motion was overruled and defendant brings error.
    H. M. Kelly, for plaintiff in error.
    Arthur H. Shay, for defendant in error.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

3. Judgment, § 150 — what must he shown on motion to set aside. On a motion to set aside a default or judgment, a reasonable excuse must be shown for not having made the defense; both diligence and merit must be shown, and it must appear that neither defendant nor his attorney has been guilty of negligence.

4. Judgment, § 144*- — how affidavits in support of application to open construed. Affidavits filed in support of an application to open a judgment are construed most strongly against the party making the application.

5. Judgment, § 148* — hearing of counter-affidavits. Counter-affidavits are properly heard on a motion to set aside a default or judgment.

6. Attobney and client, § 76* — -when client hound hy lack of diligence of attorney. Want of diligence on the part of an attorney in the handling of legal proceedings binds the client.

7. Divobce, § 17*- — what is not recriminatory defense to charge of adultery. Extreme and repeated cruelty on the part of the husband is not a sufficient recriminatory defense to a charge of adultery.

8. Divobce, § 159* — when decree denying wife privilege of visiting children modified. A decree of divorce awarding the husband the exclusive care, custody, control and education of the children free from any interference by the wife should be modified so as to provide that the wife should have the privilege of visiting the children, and to fix terms and conditions for such visits.


text:
    John Davis, Plaintiff in Error, v. St. Paul Coal Company, Defendant in Error.
    Gen. No. 6,558.
    (Not to he reported in full.)
    Abstract of the Decision.
    Workmen’s Compensation Act, § 12

       — when original declaration in action at common law does not state good cause of action. The original declaration, in an action at common law by an employee against his master for injuries alleged to be due to the negligence of the master while in the latter’s employ, which contains no averment that defendant was not operating under the provisions of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St Supp. IT 5475(1) et seo'.], is insufficient, and hence an amendment to the declaration, more than two years after the injuries, setting up that at and prior to receiving the injuries defendant had elected to reject the act, is demurrable, in view of the Two-Year Statute of Limitations.

      Error to the Circuit Court of La Salle county; the Hon. Edgar Eedredge, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Action by John Davis, plaintiff, against St. Paul Coal Company, defendant, to recover for injuries received while employed in defendant’s mine. Plaintiff’s original declaration contained no averment that defendant was not operating under the provisions of the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. [[ 5475(1) et seq.]. A demurrer to the declaration was sustained and the declaration was properly amended by adding to each count an allegation that at and prior to receiving the injuries defendant had elected to reject the act. The amendment was made more than two years after the accident, and a plea of the Two-Year Statute of Limitations was interposed. Prom a judgment of nil elicit against plaintiff, upon his electing to abide by his demurrer to the plea, after the overruling of the demurrer, plaintiff brings error.
    Browne & Wiley and Butters & Clark, for plaintiff in error.
    Duncan & O’Connor, for defendant in error.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    John Mosley, Appellant, v. William Hundhausen, Appellee.
    Gen. No. 6,559.
    (Not to he reported in full.)
    Appeal from the County Court of Peoria county; the Hon. Chester F. Barnett, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Action by John Mosley, a contractor, plaintiff, against William Hundhausen, a subcontractor, defendant, before a justice of the peace. From a judgment for plaintiff for $14, defendant appealed to the County Court. Before the trial in the County Court plaintiff filed a written statement of his. demand as follows:
    “Four days work at $2.00 per day $ 8.00
    “Damage by water 10.00
    “Loss of rent by delaying work 75.00
    $93.00”
    And at the same time defendant filed a statement of his set-off as follows:
    “To hauling gravel for said Mosley at his
    request 32 00/100”

      Abstract of the Decision.
    1. Contracts, § 389

      - — what are questions for jury in action by contractor against subcontractor for damages for failure to remove

      gravel. In an action hy a contractor against a subcontractor to recover damages for injury by water to the premises on which plaintiff was working because of the failure of defendant to remove gravel and for extra expense for labor and deprival of use of the premises, the evidence being conflicting, questions for the jury were presented as to the terms of the contract and whether substantial damages resulted from leaving the gravel on the premises more than three or four days.

      Plaintiff was engaged in repairing a dwelling house and- contracted with defendant to do certain cement work on the premises. It was defendant’s duty under the contract to haul gravel upon the premises to be used in the work, and he did haul several loads there, but plaintiff became offended because it was hauled there át the particular time and declared the contract rescinded and ordered defendant to remove the gravel, which he did. The testimony was conflicting as to other provisions of the contract, plaintiff claiming that it was agreed that the cement work should not be commenced until the plasterers were out of the way, and because defendant violated this provision of the contract it was declared off and defendant agreed to- remove the gravel in three or four days. Plaintiff denied this and said that he was to begin work at once, and while it was true that the contract was declared off and he was to remove the gravel, he was to receive pay therefor. Plaintiff’s evidence tended to show that the gravel so left on the premises caused water to run into the basement injuring the building, delaying its completion and putting him to extra expense for labor and depriving him of the use of the premises for some time. A judgment was rendered for $32 in defendant’s favor on the counterclaim, from which judgment plaintiff appeals.
    Sucher & Moore, for appellant.
    Scholes & Pratt, 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 Carnes

delivered the opinion of the court.

2. Action, § 32 — what is distinction between action in contract and in tort. An action in contract is for the breach of a duty arising out of a contract express or implied, while an action of tort is for the breach of a duty imposed by law.

3. Action, § 35* — when action construed as in contract. If it is not clear to which class an action belongs, whether contract or tort, the action will ordinarily be considered as one in contract.

4. Justices oe the peace, § 269* — when counterclaim properly interposed. The counterclaim of the defendant, a subcontractor, for hauling gravel at the request of the contractor, interposed before the trial in the County Court, after appeal from the justice court, of an action by the contractor for damages for injury to the building due to water running into the basement because of the failure of defendant to remove gravel from the premises, and for extra expense for labor and deprival of use of the premises, was properly presented and litigated under section 19 of the Justices and Constables Act (J. & A. 1f 6915), requiring a statement of set-off in writing before trial, even though plaintiff’s action may have been in tort, where plaintiff did not object to the counterclaim when filed, did not object on that ground to the evidence in support of it, but at the close of all the evidence made a motion that the “evidence of defendant be stricken from the record, as a set-off, with reference to the payment” for the gravel, which motion was overruled, and in his bill of exceptions entitled the cause as “Assumpsit,” and in his brief recited the acts of defendant upon which he based his claim and said that they were in violation of defendant’s contract.


text:
    Fred Kreeb, Appellee, v. Lake Erie & Western Railroad Company, Appellant.
    Gen. No. 6,561.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Railroads, § 865

       — when evidence as to description of another farm crossing gate claimed to be sufficient is inadmissible. In an action against a railroad company to recover for the loss of horses which escaped through a farm crossing gateway onto defendant’s track and were killed by a train, and in which it was claimed that the gate was insufficient to keep out stock, evidence as to the description of another gate at the crossing claimed to be sufficient is inadmissible.
    2. Railroads, § 856* — when expert evidence as to what is considered a sufficient farm crossing gate is admissible. In an action against a railroad company to recover for the loss of horses which escaped through a farm crossing gateway onto defendant’s track and were killed by a train, and in which it was claimed that the gate, which was of wood and of the sliding kind, was insufficient to keep out stock, evidence of expert witnesses as to what was considered a sufficient gate to turn ordinary stock and how far the free end of the gate should project over the crosspiece on which it rested, when shut, was admissible.

      Appeal from the Circuit Court of Woodford County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Action by Fred Kreeb, plaintiff, against Lake Erie & Western Railroad Company, defendant, to recover for the valne of fonr horses which had escaped through a farm crossing gateway onto defendant’s track where they were killed by a passing engine. From a judgment for plaintiff for $575, defendant appeals.
    Stevens, Miller & Elliott, for appellant; John B. Cockrum, of counsel.
    Orman Ridgely, for appellee.

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

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

3. Evidence, § 26 — presumption as to wisdom of courts. Courts will not be presumed to be more ignorant than the rest of mankind.

4. Evidence, § 14*- — when proof is unnecessary. No proof is required of facts which everyone is presumed to know.

5. Evidence, § 14* — when facts may be treated as of common Knowledge. Facts may be of common knowledge and be treated as such on a trial though not within the knowledge of some well-informed members of the community.

6. Appeal and error, § 1238* — when error cannot be predicated on method of submission of case. Error cannot he predicated upon the submission of a case to the jury to determine the facts from their common knowledge where such method of trial is acquiesced in by counsel on both sides.

7. Railroads, § 874* — when shown that farm crossing gateway is insufficient. The evidence was sufficient to sustain a finding that a railroad farm crossing gateway was insufficient, where it appeared that the gate was constructed of five boards 16 feet long, 6 inches wide and 2 inches thick, running lengthwise and held together by two uprights at each end and one in the middle; that the gate was heavy and was supported by crosspieces extending between two posts at the respective ends; that in closing the gate it would be swung into position and then shoved between the posts beyond which it extended from 4 to 7 inches; that in opening it was necessary to push the gate in the opposite direction a distance of from 5 to 12 inches before it would be permitted to swing towards the railroad track so as to make an opening.

8. Railroads, § 868* — when shown that farm crossing gate was pushed open by horses and not by human agency. Evidence held sufficient to sustain a finding that a sliding farm crossing gate, at a place where horses escaped onto a railroad track and were killed by a passing train, was opened by the horses rubbing against the end of the gate and not by human agency, where it was shown from marks on the ground that it was pushed back several inches and then pushed on the ground far enough to let the horses through.

9. Railroads, § 888* — when instruction on burden of proof in action for loss of horses Killed by train after escaping through gateway is sufficient. In an action against a railroad company for damages for the death of horses which escaped through a farm crossing gateway and were killed by a passing train, and in which it was claimed that the gate was insufficient to turn stock, an instruction that there was no presumption of negligence against the defendant merely by reason of the fact that the horses went upon the railroad right of way through the gate and that the burden of proof was upon plaintiff to show that the gate was insufficient to turn stock when properly closed and because thereof the horses of plaintiff went through the gate, was sufficient.

10. Railroads, § 888 — when instruction on nonliability for killing of horses escaping through gateway is sufficient. In an action against a railroad company for the loss of horses which escaped through a farm crossing gateway and were killed by a passing train, an instruction that if the gate was left open by some third person not connected with defendant and without the knowledge of defendant there could be no recovery, was sufficient.

11. Railroads, § 889*- — when instruction on sufficiency of farm crossing gateway is sufficient. In an action against a railroad company to recover, damages for the loss of horses which escaped through a farm crossing gateway upon defendant’s track and were killed by a passing train, and in which it was claimed that the gate, which was of the sliding kind, was insufficient, an instruction that if the jury found that the gate was a sufficient gate that could be closed in such a manner as to prevent stock pushing it open, then the company had performed its duty under the law and was not required to put a lock on it, was sufficient.

12. Railroads, § 889* — when instruction on sufficiency of farm crossing gateway is sufficient. In an action against a railroad company to recover damages for the loss of horses which escaped through a farm crossing gateway upon the railroad track and were killed by a passing train, and in which it was claimed that the gate, which was of the sliding kind, was insufficient, an instruction that if the jury found from the evidence that the gate was so constructed that it would not be held closed and prevent opening by horses or cattle pushing against it, then it would not be in compliance with the law; that the duty of a railroad company to maintain gates at farm crossings is not complied with by building a gate too short for the opening, and that if the gate was so constructed that when shut it would, on pressure of ordinary horses, swing open, then it was not a gate in compliance with the statutes, was correct.

13. Appeal and error, § 1514* — when improper statement of counsel is not reversible error. The statement of counsel for plaintiff, in an action against a railroad company for the loss of horses which escaped through a farm crossing gateway and were killed by a passing train, in commenting on the testimony of one of the witnesses for defendant, that he had “to testify that way to hold his job,” and that his living depended upon it, was not reversible error where it was not claimed that the verdict was excessive.

14. Trial, § 113* — discretion of court as to prejudicial remarks of counsel. .The matter of prejudicial remarks by counsel is one which should be left largely to the sound discretion of the trial judge.

15. Appeal and ekror, § 1313* — when presumed that misconduct of counsel is not prejudicial. It must be presumed on appeal that no misconduct of counsel materially prejudiced the opposite party unless its prejudicial nature clearly appears on the record.


text:
    In the Matter of the Application for a Conservator for Jo H. Willits Dunning. Jo H. Willits Dunning, Appellant. A. B. Childs, Appellee.
    Gen. No. 6,572.
    1. Instructions, § 88

       — when instruction on determination of preponderance of evidence is reversibly erroneous. On a petition for the appointment of a conservator for an insane person, an instruction that while the burden of the charge in the case was upon the People to make out their case by a preponderance of the evidence, yet the preponderance of the evidence is not determined by the number of witnesses alone testifying on either side, but in order to determine upon which side the evidence preponderates they must take into consideration all the facts and circumstances in evidence, the manner and appearance of the witnesses while testifying, their interest or lack of interest, if any is shown by the evidence, and all the facts and circumstances in evidence, and from all these and all the other evidence determine upon which side the preponderance lies, was reversibly erroneous because not adequately informing the jury that the number of credible witnesses testifying was a proper element in determining where the preponderance lies, the question of numbers being important.
    2. Domicile, § 13* — when of wife is that of husband. As long as the relations between a wife and her husband are not adverse, his domicile is her domicile.
    3. Domicile, § 13

       — acquirement of separate by wife. A wife may abandon her husband and acquire a residence of her own.
    4. Insane persons, § 19* — when court has jurisdiction of proceedings for appointment of conservator. Evidence held sufficient to show that a wife, while sane, changed her residence from that of her husband in another State and acquired a residence in the State of Illinois so as to give the court of the county in Illinois in which she resided jurisdiction of proceedings for the appointment of a conservator, within the statute (J. & A. 7285), conferring jurisdiction only on “the County Court of the county wherein such person resides.”
    5. Insane persons — when competent to show condition of mind of person before adjudication of sanity. On a petition for the appointment of a conservator of an insane person, it is competent to show the condition of mind of the person claimed to be insane before the date of a prior adjudication of sanity, at times when she was admittedly sane and at other times when she was admittedly insane.
    6. Insane persons — when evidence as to insanity of person on date judicially declared to be sane is admissible. On a petition for the appointment of a conservator of a person claimed to be insane, it is competent for the person taking the acknowledgment of such alleged insane person to deeds and mortgages executed on the same day that she was previously declared to he sane to testify that she was insane at the time of the taking of such acknowledgments.
    7. Evidence, § 367* — how opinion as to sanity of person may be formed. An opinion as to any person’s sanity may be formed from slight observation of what that person says or does, or fails to say or do, on a given occasion.
    8. Witnesses, § 454* — when weight of opinions of is for jury. The weight of the opinions of persons as to the sanity of another, when based upon slight observation, is for the jury.
    9. Evidence, § 129* — necessity of accounting for loss of writings. It is error to admit proof of writings without sufficiently accounting for their loss.
    10. Witnesses, § 226* — what is improper cross-examination as to sanity of person. In proceedings for the appointment of a conservator of a person claimed to he insane, either party has the right to examine a witness as to a given period of the life of the person claimed to be insane without subjecting that witness to cross-examination as to another and different period.

      Appeal from the Circuit Court of Mercer county; the Hon. William: T. Chtjbch, Judge, presiding. Heard in this court .at the April term, 1918.
    Reversed and remanded.
    Opinion filed July 25, 1918.
    Robert L. Watson, Homer D. Dines and Charles J. Scofield, for appellant.
    A. K. Hardy and John M. Wilson, 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 Carnes

delivered the opinion of the court.

Appellant, Jo H. Willits Dunning, is a woman now 70 years old, one of a large family residing at and near Keith shurg, Mercer county, Illinois. She taught in the public schools there until she was 50 years of age, living with unmarried, brothers and sisters, and when through teaching she continued to so live until she was 64 years old, when in January, 1912, she married Milton Dunning and removed with him to Bed-ford, Iowa. She was discontented there away from her Keithsburg relatives and friends. A sister with her family came to live at Bedford. Appellant endeavored to aid them financially and was dissatisfied with the result. Her late venture in married life was not satisfactory to her, and in the spring of 1915 she became insane, laboring under hallucinations and delusions. She had considerable property, and her married brother, William A. Willits, came there from his home in Mercer county, Illinois, and was appointed her conservator by the District Court of Taylor county, Iowa, in December, 1915. He took her to a sanitarium at St. Joseph, Missouri, where she remained about a month, and then brought her back to Mercer county, Illinois, where, on his petition, he was by the County Court of that county appointed conservator of her person and property February 12, 1916, and continued to act as such until March 15, 1917, when, under the provision of chapter 86, sec. 37 of our statute (J. & A. U 7321), on her application, her conservator was removed and the care and management of her property restored to her. What, if any, further action was taken in the Iowa court does not appear.

After the order of restoration March 15, 1917, and on the same day, appellant made conveyances of a large portion of her property much to the advantage of her brother William and disappointing to the expectations of other relatives. She remained with William for a few days and then went with him to visit Davenport, Iowa, with a view of keeping away from other members of her family. They, in the meantime, had learned of the conveyances and brought suits to cancel them, and on April 3,1917, less than three weeks after her restoration, her nephew, A. B. Childs, filed the petition in this case in the County Court of Mercer county for the appointment of a conservator, alleging that appellant was distracted or feeble-minded, and therefore incapable of managing her estate, consisting of real and personal property worth about $50,000. A contested jury trial in the County Court resulted in an order appointing a conservator. She appealed from that judgment to the Circuit Court where there was a like result, and this appeal is from that judgment in the Circuit Court.

Both parties in the court below, and here, assume that the issue for the jury was as to the condition of appellant ’s mind at the time of the hearing. The trial was protracted. There are over 1,200 pages of testimony in the bill of exceptions. Counsel agree that the judgment of March 15,1917, in the restoration proceedings settles beyond controversy any question as to appellant’s mental condition at that time; that she is for the purposes of this record conclusively presumed to have been sane and competent to transact business when that order was entered; therefore the question presented below and here is whether after the entry of that judgment she became distracted or feeble-minded and incapable of managing and caring for her estate, and was in that condition at the time of the trial in the Circuit Court. A great part of the evidence is descriptive of her condition of mind prior to the judgment of restoration, and at times when she was unquestionably insane. But the petitioner produced several witnesses testifying to facts and circumstances occurring after March 15, 1917, indicating unsoundness of appellant’s mind, and these witnesses testified that in their opinion she was not of sound mind at the periods they mentioned after that date, and that she was incompetent to transact ordinary business. Some of them said they could see no material difference in her mental condition after and before that date. Appellant, however, produced a larger number of witnesses that had seen and conversed with her since her restoration and were of the opinion that her mind was normal and she was competent to transact ordinary business. The testimony read from the record impresses us as presenting a fair but close question for a jury to determine under proper instructions. Various facts and circumstances were proven tending to support each contention, but a strong factor supporting appellant’s case is her greater number of witnesses. That superiority in number is urged by her counsel here and is entitled to weight and consideration by any tribunal charged with the duty of determining the facts. In this state of the record the court at the instance of appellee gave the jury the following instruction:

‘ ‘ The court instructs the jury that while the burden of the charges in this ease are upon the People of the State of Illinois, to make out their case by the preponderance of the evidence, yet you are further instructed that the preponderance of the evidence is not determined by the number of witnesses alone testifying on either side, but in order to determine upon which side the evidence preponderates, you must take into consideration all the facts and circumstances in evidence; the manner and appearance of the witnesses while testifying; their interest or lack of interest; if any is shown by the evidence and all the facts and circumstances in evidence, and from all these and all the other evidence determine upon which side the preponderance lies.”

It is substantially the same instruction that was held bad in Elgin, J. & E. Ry. Co. v. Lawlor, 229 Ill. 621, but not reversible error because another instruction informed the jury that the number of credible and disinterested witnesses testifying was a proper element to consider in determining where the preponderance lies. The court said' the instruction might be misleading in a case where the question of numbers was important and no other instruction was given supplementing it. In Lyons v. Joseph T. Ryerson & Son, 242 Ill. 409, 417, a similar instruction was condemned, and the court said that in view of the fact that more witnesses testified for appellant than for the other party the instruction might have misled the jury, indicating that the error was one of the grounds for reversing the case. In DeJoannis v. Domestic Engineering Co., 185 Ill. App. 271, a case in which there was a greater number of witnesses testifying for the appellant, a similar instruction given at the instance of appellee was held reversible error. The same conclusion was reached under similar conditions in Yanloniz v. Spring Valley Coal Co., 185 Ill. App. 563. This court in Andreicyk v. Chicago & E. I. R. Co., 150 Ill. App. 539, reversed the judgment for that error alone where it was apparent that the number of witnesses was of great importance to appellant. We also discussed a similar instruction, reviewing several cases and holding it substantial error, in Rynearson v. McCartney, 203 Ill. App. 555. There are several cases in our Supreme and Appellate Courts where this instruction has been held not reversible error, but there seems to be no doubt it is error, and whether reversible or not depends upon the condition of the record in other respects. Appellee does not claim that the error was cured by any other instruction given, but calls our attention to several cases in which it was held not alone sufficient to work a reversal. In the present case, as we have before said, the number of witnesses testifying for appellant was an important factor in determining the preponderance of the evidence, and we think it was reversible error to smother that factor by the negative words used in the first part of the instruction and omit it entirely from the affirmative statement of the elements necessary to be considered. It is true that in many cases the error would for one reason or another not be of sufficient importance to require a reversal of the judgment, but it is not consistent to point out again and again, as the courts have, that this instruction is substantial error and then say that it alone can never work a reversal. And if it is to be held reversible error in any case, we see no escape from so considering it here.

It is strongly insisted by appellant that she is a resident of Bedford, Iowa, and therefore the courts of Mercer county had no jurisdiction because section 1 of the Act under which the proceedings were had (J. & A. 7285) confers jurisdiction only on “the County Court of the county wherein such person resides.” Appellee answers that the relations of appellant and her husband were adverse and so continued after her restoration on March 15, 1917, and she therefore had a legal right to choose her own place of residence irrespective of that of her husband. It is true that so long as the relations between herself and her husband were not adverse his domicile was her domicile.- (Cooper v. Beers, 143 Ill. 25.) This court said in Evans v. Evans, 164 Ill. App. 614, as long as the relation of husband and wife exists with no intention on the part of either to break such relations, the residence of the husband is, in the eye of the law, the residence of the wife; but it is equally true that the wife may abandon her husband and acquire a residence of her own. In discussing the question of residence of a complainant in a divorce proceeding, the court said in Chapman v. Chapman, 129 Ill. 386, 389: “While it is true, as a general rule of law, that the residence of the wife is fixed by that of the husband, yet it is not true * * * that a wife living separate and apart from her husband may not establish an independent residence.” So far as we know, it is generally assumed without question in this State that a wife abandoning her husband in another State and coming permanently to live in this State acquires a residence here and gives the court in the county in which she resides jurisdiction to entertain her bill for divorce from her nonresident husband. But appellant suggests “that persons under legal disability or restraint are incapable of losing or gaining a residence by acting under the control of others.” But her contention is that she was sane on and after March 15, 1917, and it is agreed that for the purposes of this record we must assume that she was sane and competent to transact business on March 15, 1917, when the judgment of restoration was entered. The conveyances before mentioned that she executed on that day were three deeds and one mortgage, in each of which she recited that she was a resident of Keithsburg, Illinois. The record does not disclose what became of her husband after her conservator was appointed in Iowa, and we are of the opinion that there is enough in the evidence, in the absence of any showing to the contrary, to warrant the conclusion that she had while sane changed her residence from Bedford, Iowa, to her old home at Keithsburg, Illinois, and therefore the court had jurisdiction. Appellee also suggests in this connection that residence is not the same as domicile; that for the purposes of this statute she may be deemed a resident of Keithsburg because she was dwelling there and her property was there although her technical domicile might be in Iowa. There is some authority supporting this position. (Kelsey v. Green, 69 Conn. 291, 38 L. R, A. 471; 21 Cyc. 25.) But we conclude without discussing or deciding that question that appellant’s residence was in Mercer county, for the other reasons above stated.

Appellant also urges that the court erred in permitting testimony describing her condition when she was confessedly insane, and argues that the judgment of restoration of March 15,1917, should have the effect to exclude all testimony of her mental unsoundness before that date. She says in her brief: 1 ‘ The subject-matter of the inquiry in this case was the mental condition of appellant at the time of trial, and only such evidence as had a bearing upon her mental condition at that time was admissible.” Appellee takes the same position. Assuming that to be the point of inquiry, we still think it was competent to show her condition of mind before March 15,1917, at times when she was admittedly sane and other times when she was admittedly insane. It is familiar law and practice in an inquiry as to the sanity of any person to enter into the whole history of that person’s life and of the lives of his ancestors and relatives as tending to show the mental condition of the subject at the particular time in question. It is insisted that the witness who took appellant’s acknowledgment of the deeds and mortgage executed on the same day that she was restored to her property should not have been permitted to say she was not then of sound mind. It is not inconceivable that a person declared sane at 10 o’clock in the morning of a given day might become violently and manifestly insane on the afternoon of the same day. We know of no legal reason if the fact existed why it should not be shown.

It is also urged that the court permitted witnesses to express opinions that appellant was not competent to transact ordinary business without stating sufficient reasons for those opinions. Appellant says nonexpert witnesses cannot give their opinions that a person is not of sound mind unless they state such facts and circumstances as may induce a reasonable belief in the unsoundness of mind of the person under investigation, and it is for tho eonrt ajar) not for the jury to determine whether such witness states sufficient láets upon which to predicate such opinion. We do not think that rule was materially violated. An opinion as to any person’s sanity may be and often is formed from slight observation of what that person says or does, or fails to say and do, on a given occasion. Witnesses for each party in the present case expressed opinions with more or less foundation of facts on which they were based. We do not see that the court erred in permitting those opinions. Their weight was a question for the jury. There was technical error in permitting proof of writings without sufficient accounting for their loss, but the writings were of little consequence. There is a discussion of alleged errors in permitting evidence as to collateral matters that is excused by appellee on the ground that it was drawn out by appellant. The question will probably not arise in another trial. It is claimed by appellant that a witness called by appellee and examined as to appellant’s condition at one period of her life was subject to cross-examination by her as to her condition at another period. We think either party had a right to examine a witness as to a given period of her life without subjecting that witness to cross-examination as to another and different period. The judgment is reversed and the cause' remanded to the Circuit Court for further proceedings not inconsistent with the views here expressed.

Reversed and remanded.


text:
    George Yates, Appellee, v. John D. Phillips, Appellant.
    Gen. No. 6,577.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1659

       — when error in rendering verdict is cured by remittitur. Error on the part of a jury in rendering a verdict for a certain amount in a personal injury action, on the erroneous assumption that plaintiff was entitled to recover for a permanent injury, is cured by a remittitur where there is no suggestion that the judgment is then excessive.
    2. Master and servant, § 717* — when giving of warning of intention to let loose of roye attached to colt is question for jury. It was a question for the jury, in an action by a servant against his master for personal injuries alleged to be due to the master letting loose, without warning, of a rope with which they were taking a large, unbroken colt out of a barn, as the result of which the rope at once wrapped around plaintiff’s leg, causing it to be thrown against a post, whether defendant warned plaintiff before letting go of the rope, where the evidence as to such warning was conflicting.

      Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Action by George Yates, plaintiff, against John D. Phillips, defendant, for damages for injury to his leg received while endeavoring to lead a fractious, unbroken colt belonging to his employer, the defendant. From a judgment for $2,500, upon remittitur of $2,500, defendant appeals.
    Quinn & Quinn and Jesse Black, Jr., for appellant.
    Clarence W. Heyl, Shelton F. McGrath and Harry C. Heyl, for appellee.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

3. Masted and sebvant, § 717 — when question for jury whether master negligent in failing to warn servant of intention to let loose of rope attached, to eolt. It was a question for the jury, in an action by a servant against his master for personal injuries, alleged to be due to the master letting loose, without warning, of a rope with which they were taking a large, unbroken colt out of a barn, as the result of which the rope became wrapped about one of the servant’s legs and threw it against a post, whether the letting loose of the rope without warning was something that an ordinarily prudent man would not have done under the same or similar circumstances.

4. Tbial, § 199* — when refusal to direct verdict is proper. It is proper to refuse to direct a verdict, in an action for personal injuries, where the evidence is conflicting.

5. Negligence, § 133* — when defendant may prove part of charge. In actions for torts, plaintiff may prove part of his charge if there be enough proof to sustain it.

6. Pleading, § 183* — what defect must be taken advantage of by special demurrer. If a count in a declaration avers different sets of facts, either of which will justify a recovery, advantage of that defect must be taken by special demurrer.

7. Instbuctions, § 151* — when refusal proper. It is not error to refuse requested instructions covered by the main charge.

8. Masted and sebvant, § 799* — when instruction on liability of master letting loose of rope attached to unbroken colt without warning employee is properly refused. An instruction, in an action by a servant against his employer to recover damages for personal injuries, alleged to be due to the master letting loose, without warning, of a rope with which they were taking a large, unbroken colt out of a barn, as the result of which the rope at once wrapped around plaintiffs leg, causing it to be thrown against a post, that if at the time and under the circumstances a reasonable and prudent man in the place of defendant would have believed there was danger in longer holding onto the rope, then the defendant, if he acted on a fear of receiving great bodily injury and released his hold, would not be liable for damages to the plaintiff as the result of his letting go the rope, was properly refused.

Niehaus, J., took no part.


text:
    Mabel Eads, Appellant, v. William Moran, Appellee.
    Gen. No. 6,578.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Damages, § 242

       — when verdict set aside on ground of inadequacy of. A verdict in an action for damages for personal injuries will be set aside on the ground of inadequacy of damages if at first blush it is plain that the verdict is less than it should have been.
    2. Appeal and error, § 1802* — when judgment should he reversed and cause remanded for new trial. A judgment in an action for personal injuries should be reversed and the cause remanded for a new trial, where the damages awarded are clearly inadequate and the court would not have been warranted in directing a verdict for defendant on the issue of negligence.
    Niehaus, J., took no part.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Action by Mabel Eads, plaintiff, against William Moran, defendant, to recover for personal injuries sustained as the result of being struck by defendant’s automobile. From a judgment for plaintiff for $1,000, plaintiff appeals.
    Shelton F. McGrath, for appellant; Dailey, Miller, McCormick & Radley, of counsel.
    L. O. Eagleton and Roscoe Herget, for appellee; Eagleton & Stone, of counsel.

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

   Mr. Justice Carnes

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    George F. Patterson, Administrator, Defendant in Error, v. William J. Jackson, Receiver, Plaintiff in Error.
    Gen. No. 6,480.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Municipal corporations, § 107

      - — what is sufficient proof of ordinance. Section 4 of article 5 of the Cities and Villages Act (J. & A. T 1337), relating to proof of ordinances, is complied with where an ordinance printed in a hook contained in the revised ordinances of a village, and purporting to be published by authority of the board of trustees of the village and shown by the certificate of the village clerk, under the corporate seal of the village, to have been so published, is introduced in evidence.

      Error to the Circuit Court of Iroquois county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Action by George F. Patterson,-as administrator of the estate of William Harry Penry, deceased, plaintiff, against William J. Jackson, as receiver of Chicago & Eastern Hlinois Railroad Company, defendant, to recover damages alleged to have been sustained by the widow and next of kin of deceased because of the death of Penry, due to the negligence of defendant in operation of one of its railroad trains. From a judgment for plaintiff for $4,500, defendant brings error.
    Free P. Morris and Roscoe C. South, for plaintiff in error; Homer T. Dick and W. R. Hunter, of counsel.
    Dyer & Dyer and Saum & Malo, for defendant in error.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

2. Cokoners, § 3 — what is not within province of jury. It is not within the province of the coroner’s jury to fix the civil liability of any one growing out of an accident resulting in the death of an injured person.

3. Evidence, § 232* — what finding in coroner's verdict is inadmissible in action against railroad company for death of pedestrian. In an action against a railroad company to recover for the death of a pedestrian who was struck by one of defendant’s trains as it was passing through a village, that part of the coroner’s verdict containing a finding that the signal service was out of repair and that the speed of the train was excessive and in violation of the village ordinance, was inadmissible.

4. Coroners, § 3*- — what is proper finding at inquest over body of person hilled by railroad train. Where a person is killed accidentally by being run over or struck by a railroad train, the legitimate object of the coroner’s inquest is fulfilled by a finding that the death of deceased was caused by being run over or struck by a railroad train, without adjudicating whether it was due to any one’s negligence.


text:
    The People of the State of Illinois, Defendant in Error, v. Ben Silver, Plaintiff in Error.
    Gen. No. 6,539.
    (Not to he reported in full.)
    Error to the County Court of McHenry county; the Hon. David T. Smiley, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded with directions.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Ben Silver, defendant, for selling intoxicating liquor in anti-saloon territory. From a judgment sentencing defendant to confinement in the county jail for 30 days on each of five counts, or 150 days in all, and adjudging that defendant pay a fine of $100 on each of the five counts, defendant brings error.
    Abstract of the Decision.
    1. Criminal law — when new trial not granted. As a general rule, a new trial will not be granted in a criminal case to afford an opportunity to impeach a witness.
    2. Criminal law — when new trial properly refused. A new trial was properly refused in a criminal case, although the testimony of a particular witness may not have been true, where there was sufficient evidence outside that of the witness to sustain the conviction and the only effect of the introduction of the evidence of another witness would have been to impeach the testimony of the particular witness.
    3. Intoxicating liquors, § 144

       — what evidence is incompetent in prosecution for illegal sale of to affect credibility of witness. Evidence that a witness in a prosecution for the sale of intoxicating liquor in anti-saloon territory admitted that she was not married to the one that she testified was her husband, and to whom she claimed defendant sold liquor, is not competent even to affect her credibility.
    4. Criminal law, § 388* — what is proper method of fixing term of imprisonment on several counts. In a criminal case the court should not fix the term of imprisonment on several counts in gross, but should fix a specified time under each count, and also state in the sentence that the time under one shall begin at the expiration of the time under the previous one.
    5. Criminal law, § 601* — when case should be reversed and remanded. Where the court in a criminal case errs in fixing the term of imprisonment on several counts in gross, the case should be reversed and remanded with directions to enter a proper judgment and sentence.
    William L. Pierce, for plaintiff in error.
    Vincent S. Lumley, for defendant in error; Charles T. Allen, of counsel.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    William Sorenson, Appellee, v. Lee Cox, Appellant.
    Gen. No. 6,543.
    (Not to foe reported in full.)
    Abstract of the Decision.
    1. Animals, § 43

       — when negligence in failing to give assistance to stallion in breeding is shown. Evidence held sufficient to sustain a finding that defendant’s servant was negligent in not giving proper assistance to defendant’s stallion in breeding with plaintiff’s mare, resulting in the death of the mare, because of an improper entry through the rectum, it appearing that defendant’s servant was six or seven feet away from the animals at the time.
    2. Appeal and eerob, § 1407* — when verdict not disturbed. A verdict will not be disturbed on appeal if it is not against the manifest weight of evidence.
    Appeal from, the Circuit Court of Stark county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Action by William Sorenson, plaintiff, against Lee Cox, defendant, to recover for the death of plaintiff’s mare, due to negligence of defendant in breeding with defendant’s stallion. From a judgment for plaintiff for $160, defendant appeals.
    J. H. Rennick, for appellant.
    F. B. Brian, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Peoria Hotel Company, Appellant, v. Bernice Oliver, Appellee.
    Gen. No. 6,555.
    1. Landlord and tenant, § 479

       — when landlord is entitled to SO days’ notice of termination of tenancy. The rights of the landlord and tenant as to the requirement of Rev. St. ch. 80, sec. 6 (J. & A. 1f 7044), of 30 days’ notice to terminate a tenancy from month to month, or for any term less than one year, where the tenant holds over without special agreement, are equal, and the landlord is entitled to such notice upon termination of the tenancy by the tenant.
    2. Landlord and tenant, § 479* — when holding over after termination of tenancy is essential to require notice to landlord of termination. Under Rev. St. ch. 80, sec. 6 (J. & A. if 7044), referring to termination of a tenancy from month to month, and providing that “in all cases of tenancy by the month, or for any other term less than one year, where the tenant holds over without special agreement, the landlord shall have the right to terminate the tenancy by thirty days’ notice, in writing,” in cases of tenancy from month to month, where there is no special agreement to extend the tenancy, there must be a holding over by the tenant to entitle the" landlord to notice.
    Appeal from the County Court of Peoria county; the Hon. Chester F. Barnett, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 25, 1918.
    Clarence W. Heyl and Harry C. Heyl, for appellant.
    Quinn & Quinn, for appellee; Frank J. Quinn and Charles V. O’Hern, of counsel.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the appellee, Bernice Oliver, entered into a verbal agreement. on or about September 15, 1917, with the appellant, Peoria Hotel Company, by which she became appellant’s tenant, and occupied a salesroom situated in appellant’s hotel building on North Jefferson avenue, in the City of Peoria, during the month of October, 1917. The rent agreed upon by the parties was $50 per month, which the appellee paid for the month during which she occupied the premises. It is practically conceded that no agreement was made to occupy the premises leased by her for a longer period than one month, and that there was no holding over by the appellee after the expiration of the month for which she had paid the rent. Appellant claims that in the absence of an agreement to lease the premises involved, for a definite period less than a year, the payment of the rent agreed upon for one month, and the occupation of the premises for that month, created a tenancy from month to month, and that it was therefore entitled to 30 days’ notice from the appellee to terminate the tenancy, which was not given. The appellant brought suit to recover the rent claimed to be due for the month of November following, and the case was tried in the County Court of Peoria county. The trial resulted in a verdict and judgment for the appellee, from which this appeal is prosecuted.

The vital question in the case is whether the tenancy of the appellee was for one month only, or a tenancy from month to month, under which the appellant was entitled to 30 days’ notice. Section 6 of chapter 80 of the Revised Statutes (J. & A. 7044) concerning landlord and tenant, which has reference to the termination of a tenancy from month to month, provides that: ££In all cases of tenancy by the month, or for any other term less than one year, where the tenant holds over without special agreement, the landlord shall have the right to terminate the tenancy by thirty days’ notice, in writing.” The rights of the landlord and the tenant, as to the requirement of 30 day’s notice to terminate the tenancy, have been held to be equal. Donohue v. Chicago Bank Note Co., 37 Ill. App. 552; Weber v. Powers, 114 Ill. App. 411. There is no question, therefore, that the landlord, under the statute referred to, was entitled to 30 days’ notice from the tenant, if a tenancy from month to month was created by the agreement of the parties. We are of opinion, however, that under the statute in cases of tenancy by the month, where there is no special agreement to extend the tenancy, there must be a holding over by the tenant to entitle the landlord to the notice. In other words, the holding over, after the expiration of a month, where there is no agreement to hold over, is a necessary element to the requirement of a 30 days’ notice. This is the construction which the Supreme Court placed upon the Act of 1861, which is identical with the one now in force. In the case of Secor v. Pestana, 37 Ill. 525, the court expressly held that the 30 days’ notice in a tenancy by the month is only required where the tenant holds over without special agreement; and in Dunne v. Trustees of Schools, 39 Ill. 578, the court, in discussing the 30 days’ notice requirement, uses this language: ‘‘ This has express reference to a tenant holding over after his term is ended, and running into another term, from which an implication would arise of a leasing for another term of the same duration as the first. As if a tenant by the month holds over so long into the succeeding month as to give rise to the presumption of a leasing for that month, he is entitled to 30 days’ notice.” This tenant did not hold over the term of one month, for which she paid the rent, and there was no agreement to rent it for a longer period than one month, hence the tenancy in this case can be regarded only as a tenancy for the month of October, for which the rent was paid.

We conclude, therefore, that the appellant did not have any legal right to recover rent for the following month of November, and the verdict and judgment was right and is affirmed.

Judgment affirmed.


text:
    F. J. Nelson, for use of The Galva Heater Company, Appellant, v. C. E. Quaife, Appellee.
    Gen. No. 6,565.
    (Not to he reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1316

       — when errors in instructions presumed to have been cured. Questions concerning the refusal and modification of instructions will not be considered on appeal where all of the instructions are not set out in the abstract, since it will be presumed that any errors in the instructions complained of were cured by other instructions not set out.
    Appeal from the County Court of Knox county; the Hon. L. E. Murphy, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Action by F. J. Nelson, for use of The Gralva Heater Company, plaintiff, against C. E. Quaife, defendant, to recover the contract price of a water heating apparatus. From a judgment for $350, plaintiff appeals.
    R. D. Robinson, for appellant.
    Marsh & Rice, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Thomas A. Farrell, Appellee, v. Money Almgren and F. O. Munson, Appellants.
    Gen. No. 6,569.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Brokers, § 48

       — what is not sale of farm by joint owners within reservation in contract with broker. The transfer of an undivided one-half interest in a farm hy one joint owner to the other is not a sale of the farm contemplated in a reservation in a contract by the joint owners with a broker for the sale of the property on commission, by which the owners reserve the right to sell the farm themselves without liability for commissions.
    2. Brokers, § 90* — when unnecessary for broker to show financial standing of person agreeing to lend money to purchaser. In an action by a broker for commissions for the sale of real estate, it is unnecessary to show the financial standing of the person with whom the purchaser had made arrangements to borrow the money to pay for the land and his ability to furnish the money in order to show that a purchaser had been procured who was ready and able to purchase the farm, especially where the testimony of the purchaser that he had the money to pay for the place was uncontradicted.

      Appeal from the Circuit Court of Knox county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1918.
    Affirmed.
    Opinion filed July 25, 1918.
    Statement of the Case.
    Action by Thomas A. Farrell, plaintiff, against Money Almgren and F.O. Munson, defendants, to recover for commissions for finding a purchaser for real estate of defendants. From a judgment for $765 in favor of plaintiff, defendants appeal.
    Welsh & Zetterholm, for appellants.
    Williams, Lawrence, Green & Gale, for appellee.

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

   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Oneida State Bank, Appellant, v. C. A. Peterson et al., Appellees.
    Gen. No. 6,574.
    1. Appeal and ebbob, § 1367

       — when discretion of court in allowing reopening of case after conclusion of evidence is reviewable. The discretion of the trial court in allowing a reopening of a case after the conclusion of the evidence for-the defense so as to admit evidence which should have been introduced in chief is not an arbitrary but a judicial one, and when it is abused, or so exercised as to work an injury to a party complaining, the ruling of the court is reviewable.
    2. Appeal and ebbob, § 1367* — what constitutes reviewable abuse of discretion in refusing to allow reopening of case after conclusion of evidence. The refusal of the trial court, after the conclusion of the evidence for the defense, in an action on a promissory note against surviving partners, in which the defense was that the note was not executed on the date it bore but was actually made after the partnership had been dissolved by the death of a member and was consequently void as against the partnership, to allow the plaintiff to show the original indebtedness for which the note was given and that the note represented the balance of an indebtedness to plaintiff, which had been agreed upon prior to the death of such member, that the note was for the amount agreed upon and that the execution and delivery of the note had been deferred pending arrangements for the execution and delivery of a certain mortgage, .and had been dated back as a matter of convenience, was an abuse of discretion, warranting a review of the ruling of the court.
    Appeal from the Circuit Court of Knox county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the April term, 1918.
    Reversed and remanded.
    Opinion filed July 25, 1918.

      Fletcher Carney, James W. Carney and Sig. B. Nelson, for appellant.
    E. P. Field, Marsh & Rice and Williams, Lawrence, Green & Gale, for appellees.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This is an action of assumpsit commenced in the Circuit Court of Knox county by the appellant, Oneida State Bank, against the appellees, C. A. Peterson, S. J. Metcalf, Thomas D. Murdoch and Balph W. Field, who are sued as surviving partners of the firm of S. J. Metcalf & Company. The action was brought to recover on a promissory note for the sum of $3,323.58, alleged to have been made and delivered to the appellant for a partnership indebtedness due to the appellant bank. The note sued upon was signed for the partnership and in the name of the partnership by the appellee, S. J. Metcalf, and individually by S. J. Met-calf and C. A. Peterson, and was dated December 8, 1914. The declaration filed in the case contained a special count averring a liability on the note, to which was added the common counts. There was a trial by jury and the appellant offered the note in evidence, together with other evidence tending to show that the note in question was a partnership note, and that the appellees were the surviving members of the partnership. It developed, however, from the evidence offered for the defense, that the note in question was not executed on the day it bears date, but was actually made in January, 1915, after the dissolution of the partnership had been caused by the death of W. D. Patty, one of the copartners, and therefore it was insisted by the appellees, in defense against liability on the note, that the partnership having been dissolved by the death of one of its members, the surviving partner or partners had no authority to make new contracts for the partnership nor incur any new liability by the execution of a promissory note after- such dissolution, and that after the dissolution of the copartnership the note in question was not binding as a partnership obligation on the appellees as surviving members of the firm. At the conclusion of the evidence for the defense, the appellant asked leave to make certain additional proof, namely, to show the original indebtedness for which the note had been given, and which was claimed to be the consideration for the note, and to prove the fact that the note sued on represented the balance of an indebtedness of the copartnership to the appellant bank, which had been agreed upon by the parties prior to the death of W. D. Patty; that the note was for the amount thus agreed upon; that the execution and delivery of the note had been deferred pending arrangements for the execution and delivery of a certain mortgage, and had been dated back as a matter of convenience. Upon objections made by the appellees the court refused the leave asked, and then upon the motion of appellees directed a verdict for the appellees, and a verdict was thereupon returned by the jury finding the issues for the appellees, upon which the court rendered judgment in bar. An appeal is prosecuted from this judgment.

The principal error relied upon is the ruling of the court denying the appellant bank leave to prove the original indebtedness for which the promissory note in question was alleged to have been given. The appellees insist that the granting of such leave amounted to a reopening of the case for the purpose of offering proof which should have been made in chief by the appellant; that it is discretionary with the court trying the case whether such leave should be granted or not; and that the exercise of such discretion cannot be reviewed on appeal. First Nat. Bank of Hoopeston v. Lake Erie & W. R. Co., 174 Ill. 36; Hartrich v. Hawes, 202 Ill. 334. While the general rule is as stated by appellees, and was so held in the cases cited, there are certain well-recognized exceptions to the rule. The discretion referred to is not an arbitrary one but judicial in its nature, and therefore when it is abused, or is so exercised as to work an injury to a party complaining, the ruling of the court is reviewable. Indiana, D. & W. Ry. Co. v. Hendrian, 190 Ill. 501; Wenger v. Strobel Steel Const. Co., 170 Ill. App. 383; Herricks v. Chicago & E. I. R. Co., 257 Ill. 264; People v. St. Louis, I. M. & S. Ry. Co., 278 Ill. 25. In this case it is clearly apparent that if the appellant bank could not recover on the note in question as a partnership obligation merely because it developed that it was made after the death of W. D. Patty, then, if there was in fact a bona fide partnership indebtedness back of the note for which the note had been given, appellant had the legal right to revert back and claim a recovery upon such original indebtedness, and a recovery could have been had under the common counts. But it could only recover in this action; a judgment in bar of this action would be a bar to. appellant’s right thereafter to recover, not only on the note, but also for the alleged original indebtedness for which it was claimed the note had been given. A denial of the leave therefore necessarily resulted in great injury to appellant’s rights because it deprived it of the only chance it would have of proving that the appellees really owed the amount which it claimed and which amounted to over $3,300. To that extent, therefore, the denial of the leave asked resulted in a failure of justice if appellant could make the proof contemplated. We are of opinion that under the circum-stances presented the leave should have been granted, and that the ruling of the court under the authorities cited above is a proper matter of review on appeal.

For the reasons stated the judgment must be reversed and the cause remanded for another trial.

Reversed and remanded.