author: Mr. Justice Holdom

text:
    Charles M. Conlon, Defendant in Error, v. Geo. W. Gindele, Executor of the Estate of Emma Gindele, deceased, and Frank C. Conover, Plaintiffs in Error.
    Gen. No. 21,641.
    1. Injunction, § 355

      —what constitutes prima facie case in action on bond. An injunction bond and the decree of the court in the suit in which the injunction bond was given are sufficient to establish primarily plaintiff’s right to recover the penalty of such bond and to support a judgment therefor, notwithstanding that a writ of error has been sued out to reverse such decree.
    2. Judgment, § 401*—when decree res adjudicata. A decree is res adjudicata and binds the parties until it is reversed or modified and cannot he collaterally attacked notwithstanding a writ of error may have been sued out.

      3. Appeal and error, § 7

      —when writ of error a new suit. The suing out of a writ of error is a new suit and in no way affects the verities of the decree in that suit.
    4. Injunction, § 234*—who hound hy decree in suit in which hond given. Defendant in a suit on an injunction bond is as much bound by the decree in the suit in which the bond is given as are the parties to that suit.
    5. Injunction, § 234*—when evidence to collaterally attach decree inadmissible. The exclusion of evidence proffered for the purpose of collaterally attacking a decree of the Circuit Court, held without error in an action on an injunction bond given in the suit in which such decree was rendered.
    6. Injunction, § 234*—when assessment of damages upon dissolution of injunction res judicata in action on hond. Where the judgment in an action on an injunction bond conforms to the amount of damages assessed by the court of chancery on the dissolution of the injunction, such assessment is not reviewable by the trial court.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed March 27, 1916.
    Rehearing denied April 10, 1916.
    Adams, Follansbee, Hawley & Shorey, for plaintiff in error.
    Harry A. Biossot, 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 Holdom

delivered the opinion of the court.

The writ of error in this case brings before ns for review a judgment of the Municipal Court for $613.27. The trial was by the court without a jury.

The action is grounded on an injunction bond. The bond was conditioned to pay all costs and damages that shall be awarded against the complainant in suit B-4519, Circuit Court, in case said injunction was dissolved. Plaintiff offered in evidence the injunction bond, which was received without objection. Against the objection of defendant a copy of the decree of the Circuit Court entered in the suit in which the injunction bond was given was received in evidence. The objection urged why the décree should not be received in evidence was because it failed to show the evidence upon which the decree was based, and that if the evidence were examined it would be manifest that the decree was erroneous. The decree found that the injunction in which the bond was given was dissolved February 9,1915, and that the injunction was improvidently granted.

Defendant contended that plaintiff was not entitled to recover any damages in this suit, and in the trial court offered as a defense all the pleadings and the certificate of evidence in the suit in which the injunction bond was given. Upon the objection of plaintiff, defendant’s proffered evidence was excluded.

The evidence in the record is sufficient to support the judgment. The injunction bond and the decree of the court in the suit in which the injunction bond.was given were all that was necessary to establish primarily plaintiff’s right to recover. Notwithstanding it may be the fact that a writ of error had been sued out in an attempt to reverse the decree in evidence, yet that decree could not be collaterally attacked, and until reversed or modified the decree is res adjudicaba and binds the parties. Brown v. Schintz, 203 Ill. 136, and cases there cited.

The suing out of a writ or error is a new suit, and in no way affects the verities of the decree attacked in that suit. Defendant is as much bound by the decree in the suit in which the bond was given as are the parties to that suit, for, as said in McAllister v. Clark, 86 Ill. 236: ‘ ‘ The misfortune to him is, his contract binds him to abide that decree without being a party to it. His undertaking is that he ‘will pay ail such costs and damages as shall be awarded against the complainant in case the injunction shall be dissolved.’ ”

Defendant could not attack collaterally the decree of the Circuit Court; therefore the exclusion of the evidence proffered for that purpose was without error. Maloney v. Dewey, 127 Ill. 395. The judgment conforms to the amount of the damages assessed by the court on the dissolution of the injunction. This assessment of damages was not reviewable by the trial court.

The judgment of the Municipal Court being without error is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    P. A. Johnson, Plaintiff in Error, v. Paul Feyrirsen, Defendant in Error.
    Gen. No. 21,684.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Arthur J. Gray, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and judgment here for $717.58 for plaintiff.
    Opinion filed March 27, 1916.
    Statement of the Case.
    Action by P. A. Johnson, plaintiff, against Paul Feyrirsen, defendant, for balance of contract price due under terms of contract to erect building. From a judgment allowing him $404.90, after the deduction of damages for defendant’s recoupment, plaintiff brings error.
    Plaintiff had a contract to do certain work in the erection of a building for defendant and after all the work had been done received an architect’s certificate for $671, the balance of the contract price. By the terms of the contract plaintiff agreed to complete all the work he had undertaken to do on or prior to August 25, 1914. As a matter of fact this he failed as to one store to do. The work of plaintiff on this store was completed on September 15, 1914, a delay of twenty-one days. Defendant claimed that he had rented this store to a tenant who had paid $5 on account to bind the bargain, at a rental of $35 a month, which was the reasonable rental value of the store.
    Abstract of the Decision.
    1. Set-off and kecoupment, § 18

      —when owner of building may recoup damages for delay in action by contractor. Where a defendant claims damages by reason of delay in the performance of a building contract, whereby such defendant has been deprived of the use of the building, he may recoup the same in a suit against him by the contractor.
    Defendant testified that he never saw this prospective tenant again and was unable to find him. The store remained unrented until May 15, 1915, and defendant claimed that the loss of the prospective tenant was due to the store not being ready for occupancy by such tenant at the time plaintiff had contracted to complete his work. Defendant claimed that the measure of his damages was the rental value of the store during the time it remained unrented, and the trial judge, heeding defendant’s contention, gave judgment for $404.90, the amount of the architect’s certificate, less the rental value of the store at the rate of $35 a month from August 25, 1914, when plaintiff’s work should have been completed, to May 15, 1915, when defendant succeeded in securing a tenant. Plaintiff asked for a reversal and a judgment in his favor for the amount of the architect’s certificate with interest, less the rental value of the store for twenty-one days, defendant’s damages assessable for noncompletion within the contract time.
    Kremer & Greenfield, for plaintiff in error.
    No appearance 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 Holdom

delivered the opinion of the court.

2. Damages, § 66 —what is measure of for delay in performance of building contract. The measure of damages for delay in performance of a building contract which the owner may recoup in a suit against him by the contractor is the fair rental value from the time when the premises should have been completed under the terms of the contract until the time of completion.


text:
    Walter E. McKenna, Plaintiff in Error, v. South Park Commissioners, Defendant in Error.
    Gen. No. 21,692.
    (Not to he reported in full.)
    Error to the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 27, 1916.
    Statement of the Case.
    Mandamus by Walter E. McKenna, relator, against South Park Commissioners, respondents, to have respondents ordered to forthwith place his name upon the roster of patrolmen so that he might perform the duties of and keep that office. From a judgment dismissing his petition, relator brings writ of error.
    Walter E. McKenna was a patrolman in the employ of the Board of South Park Commissioners. McKenna was what is known as a “Civil Service Employee.” He received his appointment May 17,1911. On August 17, 1914, the Civil Service Board of the South Park Commissioners preferred charges against McKenna and appointed H. C.- Carbaugh and H. J. Furber, Jr., as a trial board to try McKenna. McKenna was charged with conspiring with officer Sullivan on August 8, 1914, to demand from Walter H. Wulser, who had been arrested, $30. Wulser paid that sum, and McKenna released him. On this charge McKenna was tried, found guilty and discharged from his office.

      Abstract of the Decision.
    1. Civil seevice, § 25

      —when presumed that single member of park civil service board authorised to act as trial board. In mandamus proceedings by a patrolman to secure reinstatement on the roster of patrolmen of a board of park commissioners where the Park Civil Service Act, (Hurd’s Rev. St., ch. 24a, sec. 12, J. & A. H 8260), provides that "charges shall be investigated by * * * the civil service board or by * * * some officer or officers appointed by the hoard,” and where the trial hoard which heard relator,’s case consisted of two men, only one of whom held the hearing and reported findings thereon, and it is not denied that the proceedings were otherwise regular, and where the park civil service board approved of such single member as its trial board and not only approved his report but acted upon its recommendation, it will be assumed that such single member was authorized to act as the trial board under authority of the park civil service board, there being no averment that he was not so acting or authorized to act.

      • It appeared from McKenna’s petition that a partial hearing of his case was had in September, 1914, before Carbaugh and Furber, the trial board, and that owing to the sickness of McKenna the further hearing was postponed until February 15, 1915, at which time McKenna personally appeared and was heard in his own defense. Furber did not sit upon the trial board, and the hearing of McKenna in his own defense was had before Carbangh, who alone sat as the trial board. The right to mandamus was predicated upon the contention that Furber was absent at the hearing on February 15, 1915, and that the report on McKenna’s case, which was adopted by the civil service board, was made by Carbaugh only, and it was contended that Carbangh had no jurisdiction to hear alone the charges and report his findings thereon. To McKenna’s petition a general demurrer was interposed and sustained and the petition dismissed, and McKenna prosecutes this writ of error, seeking a reversal.
    A. D. Gash, for plaintiff in error.
    Robert Redfield, for defendant in error; Tolman, Redfield & Sexton and Henry P. Chandler, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Civil service, § 25 —when presumed that park civil service board authorized one of its members to act as trial board. Where a park civil service board had the power to change the personnel of its trial board at any time, in the absence of any averment to the contrary, in mandamus by a discharged park patrolman for reinstatement, it will be assumed that it authorized a single member of such trial board to proceed as sole trial officer.

3. Civil service—when any illegality in appointment of persons on trial board corrected by action of board. If there is room for any doubt as to the legality of the appointment of the persons constituting a park trial board, the ratification of the action of the board by the park civil service commission in approving and adopting its report and findings is a sufficient corrective.

4. Civil service, § 25*—when patrolman petitioning for reinstatement may not raise jurisdictional question of trial board on appeal. A discharged park patrolman, petitioning for mandamus to reinstate himself as such patrolman, who appeared at the trial before a trial board in person and was heard in his own defense, and made no protest or objection to the jurisdiction of the trial board either before that board or to the park civil service commission, cannot raise the jurisdictional question for the first time on appeal.


text:
    A. B. Hartman, Defendant in Error, v. City of Chicago and Charles Bostrom, Commissioner, Plaintiffs in Error.
    Gen. No. 21,720.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 27, 1916.
    Statement of the Case.
    Mandamus by A. B. Hartman, relator, against the City of Chicago and Charles Bostrom, commissioner of buildings of the City of Chicago, respondents, to compel respondents to approve plans for a certain building and to issue a permit authorizing its erection. From a judgment in favor of relator, respondents bring error.
    According to these plans, metal covering was to be used for the walls and ceilings of the building, without any plaster on the inner side between such metal and the wall or ceiling, which was violative of the provisions of section 605 of the 1911 Chicago Code. The respondents interposed to this petition a general demurrer, which was not disposed of. The finding part of the final order and judgment was as follows:
    “This cause coming on to be heard upon the demurrer, of respondents to the petition of petitioner and after arguments of counsel and being fully advised in the premises, the court doth find that section 605 of the building ordinances of the City of Chicago as amended and passed and in force on and after March 9, 1914, is unreasonable and void as to each and all of the provisions thereof requiring lathing and plaster above and behind metal covered ceilings and walls in buildings erected in said city.”
    The order continued by awarding a mandamus against the City of Chicago and its building commissioner, as prayed in Hartman’s petition.
    Abstract of the Decision.
    1. Mandamus, § 172

      —when final order awarding writ may not be entered. In proceedings for mandamus, a final order awarding the writ cannot be entered by the court until a general demurrer to the petition has been disposed of..
    2. Mandamus, § 150*—when respondent may elect to abide by demurrer or answer petition. After the disposition of a general demurrer to petition for writ of mandamus to compel a city and its building commissioner to issue a building permit to relator, respondents may elect to abide by their demurrer or answer the petition.
    3. Mandamus, § 162*—when reasonableness of building ordinance question of fact in action to compel issuance of building permit. Where, after the disposition of a general demurrer to a petition for writ of mandamus to compel a city and its building commissioner to issue a building permit, respondent elects to abide by his demurrer, the question of the reasonableness of an ordinance requiring lathing and plaster above and behind metal covered ceilings and walls in such city may become a question of fact.
    4. Mandamus, § 169*—when validity of building ordinance presumed. In proceedings for mandamus to compel a city and its building commissioner to issue a building permit, a building ordinance requiring lathing and plaster above and behind metal covered ceilings and walls in buildings erected in such city will be presumed to have been passed in the exercise of the police power, and it will be assumed, until the contrary appears, that it is reasonable and the determination of the city council on that subject held to be conclusive.
    Samuel A. Ettelson and Richard S. Folsom, for plaintiffs in error; Leon Hornstein, of counsel.
    A. G. Dicus, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    I. Lurya Lumber Company, Defendant in Error, v. Philip Goldberg, Plaintiff in Error.
    Gen. No. 21,726.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed.
    Opinion filed March 27, 1916.
    Statement of the Case.
    Action for mechanic’s lien by I. Lurya Lumber Company, plaintiff, against Philip Goldberg, defendant. From a judgment for plaintiff, defendant brings error.
    The claim for a mechanic’s lien was not passed upon. Defendant had a contract with L. Harris, a general contractor, for the erection of a building, in which contract all liens and claims or right of lien under the Mechanic’s Lien Act for labor or materials furnished, etc., were waived. One Lazar had a contract with Harris for carpenter work to the amount of $2,100. Plaintiff furnished lumber to Lazar, which was used in defendant’s building under the Harris contract. The Heitman Bond and Mortgage Company made a building loan on Goldberg’s property and plaintiff executed and delivered a waiver and release of any and all liens and claims or right to a lien on Goldberg’s premises on account of any material it had furnished to Lazar, which waiver and release it delivered to the mortgage compány. The court awarded the judgment on the theory that Goldberg had testified in a prior suit that he had reserved out of the money to become due to Lazar; $200, which he was holding for the plaintiff. This claim was refuted by the testimony of defendant, Harris, the general contractor, and Frank Heitman, who represented the mortgage company.
    Benjamin E. Cohen, for plaintiff in error.

      Abstract of the Decision.
    1. Mechanics’ mens, § 136

      —when subcontractor bound by waiver of right to lien in contract between owner and contractor. A contract with a general contractor to build defendant’s house having waived the right to mechanics’ liens for labor or materials under Mechanics’ Liens Act (J. & A. 1f 7139 et seq.), such waiver was binding upon all persons furnishing labor or materials under any subcontract with such general contractor, and no claim for a lien can be maintained on account of lumber furnished to a subcontractor of such general contractor.
    2. Mechanics’ mens, § 161*—when subcontractor may not obtain money judgment against owner. Plaintiff, having no lien under Mechanics’ Liens Act (J. & A. jl 7139 et seq.) for lumber furnished a subcontractor on account of a waiver of all such liens by the principal contractor, cannot obtain a money judgment against defendant, for whom the building was erected, in an action for mechanic’s lien.
    3. Mechanics’ liens, § 196*—when evidence insufficient to establish holding out of part of contract price to pay subcontractor. In an action by a subcontractor for a mechanic’s lien, evidence held insufficient to establish that defendant held out a certain sum from the contract price which was to be applied, on plaintiff’s claim.
    4. Mechanics’ liens, § 212*—when case not remanded. Plaintiff in action for mechanic’s lien, having no lien under the Mechanics’ Liens Act (J. & A. If 7139 et seq.) for lumber furnished a subcontractor because of a waiver of all such liens by the principal contractor, has no cause of action against defendant, for whom the building was erected, enforceable in a court of law and the Appellate Court will not remand the cause.
    No appearance for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Edward Leoni, Plaintiff in Error.
    Gen. No. 21,743.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 27, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois against Edward Leoni. From a judgment convicting him of being an inmate of a house of prostitution, defendant brings error. '
    The prosecution was brought under section 57 a—1, ch. 38, Rev. St. 1915 [Cal. Ill. St. Supp. 1916, ff 3591 (1)].
    A jury" being waived, the trial judge after hearing the evidence found defendant guilty of the criminal offense of being an inmate of a house of ill fame kept for the purpose of fornication and fixed his punishment at thirty days’ imprisonment in the House of Correction, the payment of a fine of $100 and costs of the prosecution, taxed at $6.50, in default of payment of which defendant was to be detained in the House of Correction until the fine and costs were worked out at the rate of $1.50 per day, or until discharged by due process of law as by statute provided.
    Only the statutory record was brought before the Appellate Court. The errors complained of were said to be encompassed within this record. The prosecution was by information. The statute which defendant was charged with offending went into force July 1, 1915. Defendant contended that the information stated no offense where it charged that defendant “on. the 7th day of August, A. D. 1915, at the City of Chicago aforesaid, at, to-wit: 1259 W. Madison street, was then and there an inmate of a house of ill fame or assignation or prostitution or lewdness, contrary to the statute.” The contention was that the charges being in the disjunctive are insufficient to charge any offense of which defendant can be convicted, and that the venue in the caption of the information is no part of the information. Defendant voluntarily went to trial upon the information without objecting to its sufficiency or moving to quash.
    Abstract of the Decision.
    1. Criminal law, § 506

      —when presumed that evidence sufficient to sustain conviction and judgment. Where only the statutory record in a criminal prosecution is brought before the Appellate Court and all the errors complained of are said to be encompassed within such record, it will be assumed that the evidence was sufficient to sustain the conviction and judgment if the information warrants the conviction and the judgment is a lawful one.
    2. Prostitution, § 4c*—when question of insufficiency of information may not he raised on appeal. The objections made for the first time on review that charges in the information charging a person with being an inmate of a house of ill fame, on which he is prosecuted, are in the disjunctive and that the venue in caption of such information is no part of the information, held without force, where defendant did not challenge its sufficiency in any way before the trial court or call for the ruling of the court thereon.
    3. Prostitution, § 3a*—when information charging occupancy of house of ill fame sufficient. An information charging that defendant was “an inmate of a house of ill fame or assignation or prostitution or lewdness,” even though in the disjunctive, charges but one offense in legal effect and intendment.
    4. Indictment and information, § 13*—venue as part of informa

      tion. The venue is a part of the information, and the charge that the offense was committed at the “City of Chicago aforesaid,” by construction refers to the venue as laid in the caption of the information.

      Benjamin E. Cohen, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

5. Prostitution, § 3a —when information charging defendant with being an inmate of house of ill fame sufficient. On the contention that an information charging defendant with being an inmate of a house of ill fame does not charge that such act is unlawful, held it is sufficient if the charge is in the language of the statute and the statute made the act charged unlawful.

6. Prostitution, § 4*—when evidence presumed to sustain charge in information. Where the evidence in a prosecution for being an inmate of a house of ill fame is not in the record before the court of review, all intendments must be indulged necessary to sustain the charge in the information.

7. Appeal and error, § 198*—lack of jurisdiction of Appellate Court in constitutional matters. The Appellate Court has no jurisdiction to determine constitutional questions.

8. Appeal and error, § 1265*—when Appellate Court will presume statute constitutional. The Appellate Court will presume that a criminal statute is constitutional, as it has no jurisdiction over constitutional questions.

9. Appeal and error, § 1718*—when constitutional question waived. Where the constitutionality of a criminal statute is involved, the review should be prosecuted to the Supreme Court, and seeking a review by the Appellate Court waives any constitutional question which might otherwise be raised.

10. Costs, § 122*—when culprit may be sent to House of Correction for nonpayment of costs. Hurd’s Rev. St., ch. 38, sec. 452 (J. & A. jf 4152), authorizes imprisonment for the nonpayment of fines or costs, and section 448 of such chapter (J. & A. If 4148) provides that where jail sentences may be imposed upon defendants, the court may send the culprit to the House of Correction.

11. Criminal law, § 391*—how statute authorizing working out fine and costs in House of Correction construed. Hurd’s Rev. St., ch. 38, sec. 448, (J. & A. If 4148) providing that the fine and costs imposed on a culprit sentenced to the House of Correction for nonpayment of such fine and costs may be “worked out” at the rate of $1.50 per day, is in the interest of the convicted person, as it minimizes his term of imprisonment.


text:
    Edwin D. Weary, Defendant in Error, v. Winton Motor Car Company, Plaintiff in Error.
    Gen. No. 21,746.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Automobiles and garages, § 6

      —when cross-examination of plaintiff as to prior collision improperly refused in action for damages for injury to automobile. Where, on the question of damages in a suit therefor, on account of the collision of defendant’s automobile with plaintiff’s automobile, defendant sought to elicit by cross-examination of plaintiff that plaintiff, a few minutes before the instant accident, had a collision between his machine and a horse-drawn truck which had caused damage to plaintiff’s machine, held to be error to refuse to permit such cross-examination.

      Error tox the Municipal Court of Chicago; the Hon. Arthur J. Gray, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed March 27, 1916.
    Statement of the Case.
    Action by Edwin D. Weary, plaintiff, against the Winton Motor Car Company, defendant, for damages caused to plaintiff’s automobile in a collision with defendant’s automobile. From a judgment in favor of plaintiff for $238.30, defendant brings error.
    Plaintiff’s contention was that the automobile of defendant struck Ms automobile while he was turning his car around in the middle of the block. On the question of damages, defendant contended that just prior to the instant collision, plaintiff’s car had been in collision with a horse-drawn truck, hut the court would not permit defendant’s counsel to ask questions on cross-examination concerning such former collision.

      John A. Bloomingston, for plaintiff in error.
    A. C. Wylie and Ralph Rosen, for defendant in error.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Automobiles and gabages, § 6 —when refusal of cross-examination of witness on question of damage to automobile erroneous. Where trial court refused to allow questions to be put to witness of plaintiff testifying as to the amount of damage done his automobile by defendant’s automobile in a suit for damages, such questions having reference to the amount of damage caused plaintiff’s car in a prior collision with a horse-drawn truck, and where such witness did not see plaintiff’s car until after both collisions, and his estimate of damages did not take into consideration the former collision, such refusal held to be error.

3. Automobiles and gabages, § 6*—when refusal of cross-examination of loitness for plaintiff as to prior collision erroneous. Where plaintiff in an action for damages for injury to his automobile as a result of a collision with another automobile was allowed to prove by a witness that a police officer had stated to him that plaintiff was without fault in the collision on account of which suit is brought, and where the court refused to allow counsel for defendant to ask this officer whether plaintiff had not admitted to him that his car had a few minutes prior to the collision with defendant’s car been in collision with a horse-drawn truck, and that as a result of such collision his car had been damaged, held that such refusal was error.

4. Automobiles and gabages, § 6*—when evidence inadmissible as being hearsay. Where the son of plaintiff was permitted to testify that a police officer had stated to him that his father was without fault in the collision with defendant’s automobile on account of which suit was brought, such testimony was clearly hearsay.


text:
    Jacob Schwartz, Administrator of the Estate of Hascal Schwartz, Deceased, Appellee, v. Brinks Chicago City Express Company, Appellant.
    Gen. No. 21,866.
    1. Appeal and error, § 1143

      —when motion to strike hill of exceptions from flies and motion to vacate order denied. The proper dispatch of business in the Appellate Court will not permit of its waiting the convenience of counsel in returning files, and where appellee moves to strike bill of exceptions from the files and to affirm the judgment, and where the record, an examination of which is indispensable to decide the motion, is not in the files but in the possession of appellee, the motion is denied and a subsequent motion to vacate that order is also denied.
    2. Appeal and eeeoe, § 1143*—when Appellate Court on its own motion will vacate order. Having previously denied a motion to strike the bill of exceptions from the record, as well as a motion to vacate the order thereon and to entertain the prior motion, the Appellate Court on its own motion will vacate its order on the latter motion and allow the former where it is imperative on it to strike such bill of exceptions from the files.
    3. Appeal and eeeoe, § 784*—when hill of exceptions signed hy other than trial judge stricken from record. Where by the terms of orders allowing ninety days for the filing of a bill of exceptions and extending such time twenty days, the time for filing thereof expired on September 15, 1915, and on August 25, 1915, such bill of exceptions was presented to and signed by a judge other than the trial judge, and on September 21, 1915, it was signed and approved by the trial judge who ordered it filed nunc pro tunc as of August 25, 1915, and it was actually filed on September 21, 1915, and no statutory or other reason is shown by the record why the same was not signed and approved by the trial judge within the time allowed by the court, nor as to his disability by reason of death, sickness, etc., as required by Hurd’s Rev. St., ch. 110, sec. 81 (J. & A. jf 8618), and the record is silent as to whether or not the judge by whom the record was signed on August 25, 1915, was presiding in the trial court at the time and that due diligence had been shown to present it to the trial judge before presenting it to such other judge, and there is no recitation by the trial judge why the bill of exceptions was not presented to him within the proper time, the bill of exceptions will be stricken from the record.

      4. Appeal and error, § 843

      —when other than trial judge may sign Mil of exceptions. Under Hurd’s Rev. St., ch. 110, sec. 81 (J. & A. f 8618), it is necessary to show inability of the trial judge to sign a bill of exceptions by reason of death, sickness or other disability, in order to authorize a judge other than the trial judge to sign such bill of exceptions.
    5. Appeal and error, § 843*—when trial judge may not sign MU of exceptions presented to other judge and order it filed nunc pro tunc. The presentation of a bill of exceptions, within the allowed time to a judge who did not preside at the trial and his marking it as presented does not authorize the trial judge to sign the same and order it filed nunc pro tunc as of the time when presented to such other judge, it not appearing that such other judge, at the time, was presiding in the same court where the action was tried, or that due diligence had been shown by defendant in seeking to present the bill to the trial judge before presenting it to such other judge, and there is no recitation by the trial judge why the record was not presented within the proper time.
    6. Appeal and error, § 784*—when Mil of exceptions defective. A bill of exceptions not having been presented to the trial judge within the proper time, a recitation by the trial judge as to the reason therefor is essential.
    7. Appeal and error, § 1751*—when judgment affirmed for lack of proper MU of exceptions. Where the bill of exceptions is stricken from the files and there is no error apparent in the remaining common-law record, the judgment will be affirmed.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 27, 1916.
    R. P. Garrett, for appellant; Zimmerman & Garrett, of counsel.
    Adler & Lederer, 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 Holdom

delivered the opinion of the court.

This is an appeal by defendant from a judgment against it for $2,500 rendered upon the verdict of a jury in an action for negligently causing the death of plaintiff’s intestate, a little boy of the age of four years.

Appellee moved the court, on January 17, 1916, to strike the bill of exceptions from the files and to affirm the judgment, which motion the court took for deliberation in conference. When the motion was reached in conference the record, which it was indispensable for the court to examine in order to decide the motion, was not in the files* but was in the possession of counsel for appellee. For this reason the motion was denied. A motion subsequently made to vacate that order and to entertain the prior motion was made and denied.

The proper dispatch of the business of this court will not permit of its waiting the convenience of counsel in returning files retained in their offices and without which the motion made by such counsel cannot be decided. We would not now recede from our former action were it not imperative on us to do so in order that our decision may rest upon the law as announced in the cases hereinafter cited.

Counsel for appellee in their brief renewed their motion to strike the bill of exceptions and to affirm the judgment, and the court in conference, on examination of the record then before it, on its own motion vacated the order entered on the motion of January 31, 1916, leaving the motion to strike and affirm for consideration and disposition at this time. That motion must be allowed.

The chronological order of events is a follows:

The judgment appealed from was entered May 29, 1915. Defendant was by order duly entered given ninety days from that date in which to file its bill of exceptions. On August 21,1915, the time for filing the bill of exceptions was extended twenty days from August 26, 1915. By the last order the time for filing bill of exceptions expired on September 15, 1915.

The trial judge was the Honorable Richard S. Tut-hill. On August 25, 1915, Victor P. Arnold, who we will assume was likewise a judge of the Circuit Court notwithstanding there is nothing in the record to so indicate, marked upon the bill of exceptions that it was presented to him on that date. On the 21st day of September, 1915, Judge Tuthill, the trial judge, signed and approved the bill of exceptions and ordered it filed nunc pro tunc as of August 25, 1915, and it was filed September 21, 1915.

No statutory reason is made to appear to account for the presentation of the bill of exceptions to Judge Arnold, nor is any reason shown by the record why the same was not signed and approved by the trial judge within the time allowed by the order of court. This case is not distinguishable from People v. Rosenwald, 266 Ill. 548, or Illinois Improvement & Ballast Co. v. Heinsen, 271 Ill. 23.

There is nothing in the record showing that the trial judge “by reason of the death, sickness or other disability” was unable to sign the bill of exceptions, or that such judge was at that time suffering from any disability of a physical or mental nature which prevented him from performing his duties or functions. Such disability is required by section 81, ch. 110, Rev. St. (J. & A. & 8618), in order to authorize a judge other than the trial judge to sign the bill of exceptions.

The presentation of the bill of exceptions in the record to Judge Arnold and his so marking it did not authorize the trial judge to sign the same and order it filed nunc pro tunc as of the date when the same was presented to Judge Arnold. Judge Arnold’s marking the bill as having been presented would have been sufficient to furnish a basis for the nunc pro tunc order by the trial judge when he signed the bill of exceptions if there was any recitation in the record that the marking by Judge Arnold of its presentation was so done while he was presiding in the Circuit Court, and that due diligence had been shown by defendant in seeking to present the bill to Judge Tuthill before presenting it to Judge Arnold. The record is absolutely silent on these matters. Neither is there any recitation of any fact by the trial judge why the bill of exceptions was not presented to him within the proper time. Such a recitation by the trial judge is essential and cannot be dispensed with.

Where, as here, the record shows that the bill of exceptions was not actually signed within the time granted for filing it, it is not properly in the record. Under the cases above cited this bill of exceptions was not filed within the time authorized by law. It therefore must be, and is, stricken from the files. There is nothing now before us but the common-law record, and in it there appears to be no error."

The bill of exceptions is stricken from the files and the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Mary Belasco, Appellee, v. Howard Langford, Appellant.
    Gen. No. 21,920.
    (Hot to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed March 27, 1916.
    Statement of the Case
    Prosecution for bastardy by the People of the State of Illinois ex rel. Mary Belasco, plaintiff, against Howard Langford, defendant. From a money judgment against him, defendant appeals.
    Defendant waived a trial by jury, and the case was heard by the trial judge, who found the defendant to be the putative father of a bastard child born to the relatrix. The errors assigned and argued were that the finding and judgment were contrary to the weight of the evidence, that there was no proof that relatrix was unmarried at the time of conception, and that relatrix and defendant were nonresidents of this State. Relatrix testified that she was an unmarried woman; that defendant was the only man she ever carnally knew, and no attempt was made to prove otherwise. At the final hearing each side'produced two additional witnesses. Those for relatrix corroborated her on material matters, and contradicted defendant regarding matters which he by his testimony had denied. Defendant’s witnesses testified to negative facts which were without probative force and tended in no degree to establish any material controverted fact.
    Abstract of the Decision.
    1. Bastards, § 60

      —when insufficiency of evidence as to relatrix being married waived on appeal. Where relatrix in a bastardy action testified that she was an unmarried woman at the time of conception and no challenge of this or motion for a finding in defendant’s favor is made on such grounds, the contention that it is not proved that she was unmarried at such time is unavailing on appeal.
    2. Bastards, § 22*—when preponderance of evidence with relatrix. In a bastardy case the preponderance of evidence held to be with relatrix, it appearing that at the final hearing each side produced two witnesses in addition to relatrix and defendant, that those for relatrix corroborated her on material matters and contradicted defendant on matters which he had denied, and that defendant’s witnesses testified to negative facts without probative force.
    3. Bastards, § 60*—when objection to jurisdiction of court waived. Where the parties in a bastardy action are nonresidents of this State but are both within the jurisdiction of the court, as is also the child, who was born in the State, and where defendant was arrested in the State on relatrix’s complaint and appeared and pleaded without making any objection to the court’s jurisdiction, it is too late for him to object in the court of review that the parties are nonresident.

      Cavender & Kaiser, for appellant.
    Maclay Hoyne, for appellee; Edward E. Wilson, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Presiding Justice Gridley

text:
    Charles E. Doose, Plaintiff in Error, v. Adela E. Doose, Defendant in Error.
    Gen. No. 21,219.
    1. Divorce, § 47

      —when evidence sufficient to show extreme and repeated cruelty towards wife. On a bill by a wife for divorce, evidence held sufficient to sustain a finding that defendant was guilty of extreme and repeated cruelty.
    2. Divorce, § 16*—when condonation of conduct of husband no bar to divorce. Where it appeared that the wife in a suit for divorce lived with her husband for three weeks after the commission of his last act of physical violence upon her but thereafter went to a hospital and lived continuously separate and apart from him, that two months after she went to the hospital her husband filed the bill for divorce, making charges against her of extreme and repeated cruelty towards him, which, if untrue, probably wounded her greatly, and where it further appeared that on the trial he made no attempt to prove such charges and did not dispute her testimony as to his cruelty; held that even though her cohabitation with him during such three weeks amounted to a condonation of his cruelty, his subsequent conduct, after she had gone to the hospital, did not show “good usage and conjugal kindness,” and that her condonation, if any there was, did not constitute a bar to her obtaining an absolute divorce.
    3. Divorce, § 16*—what constitutes condonation. Condonation is forgiveness upon condition that the injury shall not be repeated.
    4. Divorce, § 16*—when condoned offense revived. Any misconduct, not necessarily of the same character as that condoned, such as accusations against the woman, revive the condoned offense.
    5. Divorce, § 16*—what is effect of condonation by wife. Con-donation is not so strict a bar against a wife as against a husband, inasmuch as she may find it difficult to quit the common domicile and often submits through necessity.
    6. Divorce, § 16

      —what does not constitute condonation. Forbearance of the wife to abandon her husband and sue does not weaken her title to relief.
    7. Divorce, § 16*—when condonation not pleaded as a defense no has- to right of wife to divorce. Where the husband, who is cross-defendant in a divorce suit, did not plead condonation as a defense and the point was not urged or even mentioned on the hearing, such condonation will not in the exercise of the court’s discretion prevent the wife from obtaining a divorce.
    8. Divorce, § 18*—what does not constitute collusion to obtain divorce. Where an arrangement exists between the parties as to a division of the property in the event a decree of divorce should be granted, it cannot be inferred from the fact of the existence of such an arrangement as to property that there was collusion to obtain a divorce.

    Error to the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 28, 1916.
    Statement of the Case.
    On January 29,1914, Charles E. Doose, complainant, filed his bill for divorce in the Superior Court of Cook county against his wife, Adela E. Doose, on the ground of extreme and repeated cruelty. The wife filed an answer in which she denied the charg'es of cruelty, and alleged that on November 30, 1913, she entered the Evanston Hospital for the purpose of having an operation performed, and that while she was absent from home complainant removed all of the furniture therefrom and rented the house and has ever since refused to live with her or support her. On April 8, 1914, the wife filed a cross-bill for divorce, alleging her marriage to complainant in November, 1894, and her residence in Illinois continuously since that date; that she had lived and cohabited with complainant as his wife 11 until on or about December 1, 1913 ”; that he had been guilty of extreme and repeated cruelty towards her; that on one occasion during the month of April, 1912, without any provocation, he became enraged and seized her by the throat and choked her, and that about October 29, 1913, he again choked her and otherwise maltreated her, and that on other occasions, while in anger, he had choked, struck and beaten her; that she was now living- separate and apart from her husband in rooms which she had rented near their former residence in Wilmette, Illinois; and that there was born of the marriage a son, Carl W. Doose, who was residing with her. On the same day complainant filed an answer to said cross-bill in which he admitted the marriage in November, 1894, cross-complainant’s continuous residence in Illinois since that time, and that the parties had lived and cohabited together as husband and wife from that time until on or about December 1,1913. He denied the charges of cruelty, but admitted that cross-complainant was living separate and apart from him.
    On April 10, 1914, the cause came on for hearing in open court before the chancellor. Both parties were represented by counsel. The complainant did not introduce any evidence in support of his bill. In support of the allegations of the cross-bill the cross-complainant and Carl W. Doose testified, but they were not cross-examined. The cross-complainant testified, in substance, that she was married to complainant on November 11, 1894; that she had been a resident of Wilmette, Illinois, for the past eight years; that Carl W. Doose was her son, bom of said marriage, and that he was eighteen years of age; that she continued to live with complainant as his wife from the time of the marriage “up to the time I went to the hospital, December 1, 1913”; that for the past two years, and over, complainant had been cruel and abusive towards her; that in the month of April about two years ago complainant, while in anger, grabbed her by the throat and choked her and hurt her; that her son was present at the time; that on three subsequent occasions complainant was guilty of acts of cruelty and physical violence towards her; that the last of such acts was “about three weeks before I went to the hospital”; that on that occasion “he choked me and started to abuse me, and when I screamed he put a pillow over my head so that no one could hear”; that while he was so holding the pillow her son, Carl, came into the room; and that complainant frequently used profane language, particularly during the last two years. Carl W. Doose testified to seeing his father, while in a fit of anger, choke his mother about two years previously, and also on the last occasion to seeing his mother lying down and his father holding a pillow over her head. During the hearing counsel for cross-complainant stated, in substance, that he was not going to introduce any testimony as to property rights; that an agreement had been made with counsel for complainant (present in court) as to the distribution of the property, provided, of course, that a decree of divorce should be granted; that a deed of certain property had- been placed in escrow with a certain Chicago bank and that after the decree was entered that would settle the matter. The cross-complainant further testified that she understood all the details of the agreement as to the division of the property and that she was satisfied with the arrangement.
    On April 15, 1914, the court entered a decree, in which it was adjudged that complainant’s bill be dismissed for want of equity and that complainant pay all the costs of the litigation; that under the cross-bill the bonds of matrimony theretofore existing between the parties be dissolved, and that each of the parties be barred from all dower and homestead in any real estate owned or hereafter acquired by the other. The court found in the decree that both parties had agreed in open court to an immediate hearing and were present on the hearing; that since their marriage they had lived together as husband and wife until on or about December 1, 1913, when cross-complainant left complainant, and that since said time they have not lived together as husband and wife; that complainant had been guilty of extreme and repeated cruelty towards cross-complainant; and that the parties had agreed to a division of property as and for a complete settlement of the rights either might have in the property of the other, whether for alimony, maintenance, dower or homestead. The decree, as entered bears the “O. K.” of the respective solicitors of the parties. The transcript of the record further discloses that on the same day, April 15,1914, on motion of the solicitor for complainant or cross-defendant, it appearing that all costs had been paid, the court ordered the clerk of the court “to satisfy of record the decree of divorce entered this day.” The present writ of error was sued out of this court by said Charles E. Doose on February 2, 1915.
    Bennison F. Bartel, for plaintiff in error, did not represent plaintiff in error below.
    Church, Shepard & Day, for defendant in error.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

The errors assigned may be summarized as follows: That the court erred in entering the decree on the cross-bill (1) because the evidence of the alleged acts of extreme and repeated cruelty on the part of cross-defendant towards cross-complainant is not sufficient to warrant a decree of divorce; and (2) because, even if sufficient, it appears from the allegations of the cross-bill and from the testimony of cross-complainant that she had condoned said acts.

As to the first point we are of the opinion that the evidence of extreme and repeated cruelty on the part of cross-defendant is sufficient to warrant the decree.

Begarding the second point, counsel’s argument, as we understand it, is, that as it appears from the testimony of cross-complainant that the last act of cruelty complained of occurred about three weeks before December 1, 1913, on which date she went to a hospital, and as it further appears from her testimony that she continued to live with cross-defendant as his wife until December 1, 1913, the acts of cruelty were condoned. Under the facts and circumstances of this case we do not think that she is barred from obtaining the relief granted by the decree.

“Condonation is defined in the books as forgiveness, upon condition the injury shall not be repeated, and is dependent upon future good usage and conjugal kindness.”' (Farnham v. Farnham, 73 Ill. 497, 500.) “The authorities hold that condonation is not so strict a bar against a wife as against a husband, inasmuch as she may find it difficult to quit the common domicile, and often submits through necessity. Hence, condonation on the part of the wife is not pressed with the same vigor as condonation on the part of the husband.” (Duberstein v. Duberstein, 171 Ill. 133, 136.) “Forbearance to abandon him and sue, does not weaken her title to relief.” (Harrison v. Harrison, 20 Ala. 629, 646.) In Phillips v. Phillips, 1 Ill. App. 245, 249, it is held that the two offenses of adultery and extreme and repeated cruelty are essentially different in their nature, and that the same consideration, as respects condonation, cannot be equally applicable to both. In 9 Billing Case Law, p. 384, it is stated: “To constitute a revival of the condoned offense the offending spouse need not be guilty of the same character of offense as that condoned; any misconduct is sufficient which indicates that the condonation was not accepted, in good faith and upon the reasonable conditions implied.” (See Langdon v. Langdon, 25 Vt. 678, 679.) In the Farnham case, supra, a decree for divorce was granted the wife on the ground of extreme and repeated cruelty. On appeal by the husband it was contended that the cruelty had been condoned. Our Supreme Court, in affirming the decree, said (p. 500): “No acts of personal violence are proven subsequent to the alleged condonation, but there is evidence of abusive treatment by the use of opprobrious epithets. * * - * Cruel treatment does not always consist of actual violence. There are words of false accusation, that inflict deeper anguish than physical injuries to the person—more enduring and lacerating to the wounded spirit of a gentle woman, than actual violence to the person, though severe.” (See also, Sharp v. Sharp, 116 Ill. 509; Robbins v. Robbins, 100 Mass. 150.) In the present case the record discloses that the last act of physical violence committed by cross-defendant on the person of his wife was- committed three weeks before December 1, 1913; that during the three weeks subsequent to the commission of said act she continued to live with him; that on December 1, 1913, she went to a hospital and did not afterwards return to him but continued to live separate and apart from him; that within two months after she went to the hospital he filed a bill for divorce against her in the Superior Court, in which he publicly charged her with serious acts of extreme and repeated cruelty towards him, which charges, if untrue, probably wounded her deeply; and that when the cause was called for trial, and after her cross-bill had been filed, he made no attempt to prove his charges against her and did not dispute her testimony as to his cruelty. If his repeated acts of cruelty were condoned by her for the reason urged, we are of the opinion that his conduct towards her, so far as disclosed, subsequent to her going to the hospital, does not show “good usage and conjugal kindness,? 5 and that her condonation, if any there was, is no bar to her obtaining the relief of an absolute divorce. Furthermore, the cross-defendant in his answer to the cross-bill of his wife did not plead the alleged condonation as a defense, and the point was not urged or even mentioned on the hearing. In 9 Ruling Case Law, p. 386, it is stated: “Condonation is an affirmative defense and like other affirmative defenses must be specially pleaded or insisted upon in the answer as a defense. * * * Though condonation is not specially pleaded or relied on as a defense, the court may in its discretion refuse to grant a divorce, where it appears from the proofs, properly taken, that the injured party, with a full knowledge of all the facts, has actually forgiven the injury, which has not been revived by subsequent misconduct. * * * The court should not, it would seem, exercise its discretion in this regard in order to deprive a much suffering wife of a divorce.” (See also, Watkins on v. Watkinson, 68 N. J. Eq. 632, 638; Smith v. Smith, 4 Paige (N. Y.), 432, 434; Hoffmire v. Hoffmire, 7 Paige (N. Y.), 60).

It is also urged that the decree should be reversed because it appears that an arrangement existed between the parties as to a division of the property in the event a decree of divorce should be granted. We do not think that it can be inferred from the fact of the existence of such an arrangment as to property that there was collusion to obtain a divorce.

The decree of the Superior Court is affirmed.

Affirmed.


text:
    Albert J. Kraetsch, Appellant, v. City of Chicago, Appellee.
    Gen. No. 21,255.
    1. Bills and notes, § 306

      —when maker making second payment after failure of drawee may recover amount of payment from payee. Where plaintiff in action of assumpsit gave defendant, the City of Chicago, a cashier’s check on a certain date to pay for saloon licenses from such city and, although accepted on such date, it was not presented for payment until over three weeks later, and the evidence showed that if presented at the bank on which it was drawn at any time up to and including the day before such latter date it would have been paid, but that such bank failed on the day of presentation, and plaintiff did not consent that defendant might delay the due presentment of said check for any reason and had no knowledge if any practice of defendant to hold such checks until the receipt of report from its police department and, under protest and because of threats of arrest the plaintiff six weeks after the issuance of the check again paid defendant $1,000 on account of such licenses, held plaintiff was entitled to recover a judgment for such $1,000.
    2. Payment, § 5*—when acceptance of check operates as payment of debt. The acceptance of a check of a third party implies an undertaking of due diligence in presenting the check for payment, and in case of loss through want of due diligence such acceptance will be held to operate as payment.
    3. Bills and notes, § 279*—what constitutes due diligence in pi-esentation of check. Due diligence on the part of the payee of a check of a third person requires it to present same for payment on the same day, or, at the furthest, within banking hours on the next day after the check is delivered to it.
    4. Payment, § 5*—when acceptance of check operates as payment. In the absence of an agreement to the contrary, a check received for a debt is merely conditional payment, or satisfaction of the debt when paid; but the acceptance of such check implies an undertaking of due diligence in presenting it for payment, and if the party from whom it is received sustains loss by want of such diligence, it will be held to operate as actual payment.
    5. Customs and usages, § 21*—when custom of holding checks for license fees not binding on debtor. The custom of the City of Chicago of holding a check for license fees of saloon until the receipt of a favorable report from the police department, in order to bind plaintiff, a saloon keeper, must have been actually known to him when the check of a third person for a certain amount was delivered in order to justify the obtaining of a similar sum.
    6. Customs and usages, § 27

      —lohen evidence insufficient to show Knowledge of custom, of holding checks by city until it receives favorable report on applicant for saloon license. In an action of assumpsit by a saloon keeper against a city to recover tile amount of a second payment made by plaintiff to defendant after failure of. drawee, evidence held not to show" that plaintiff had knowledge of defendant’s custom of holding checks given in payment of saloon license fees until receipt of a favorable report from the police department.
    7. Customs and usages, § 21*—when notice to agent of custom not binding on principal. Where an agent of a saloon keeper merely acts as a messenger in delivering a check for license fees to the city collector, even though such messenger had knowledge of a custom on the part of such city collector of holding such checks until receipt of a report from the police department, such knowledge held not to be notice to plaintiff and as not binding upon him.
    8. Escrows, § 6*—what does not constitute delivery of check in escrow. By the terms of a Chicago city ordinance, and by usage . and practice in the city collector’s office, payment of a saloon license fee is required before May 1st, and the acceptance of a check in compliance with that requirement does not cause the delivery of such check to be in the nature of an escrow agreement even though such city collector claims that such checks are withheld from presentation pending the receipt of a report from the police department as to the validity of signatures on plaintiff’s saloon license.
    9. Escrows, § 6*—what does not constitute delivery of a check in escrow. Delivery of a check in payment of city saloon license fees to a city held not to be in the nature of an escrow agreement, the essential requirement of an escrow being that delivery can be made only to a stranger and not to a party or his authorized agent.
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and judgment here with finding of facts.
    Opinion filed March 28, 1916.
    Rehearing denied April 10, 1916.
    Statement of the Case.
    On. June, 17,1914, Albert J. Kraetsch, plaintiff, commenced an action in assumpsit against the City of Chicago, defendant, to. recover back the sum of $1,000 which he alleged he paid to defendant on June 12,1914, under protest and because of threats of arrest, etc., for license fees for the period of six months for two saloons operated by him, one on West 63rd street and the other on West 74th street in said city, and which fees he further alleged he had previously, on April 29, 1914, paid defendant by a cashier’s check accepted by it. The cause was tried before the court without a jury. Some of the facts were presented to the court by stipulation of the parties, and other facts appeared from the testimony of witnesses. On November 27,1914, the court found the issues for the defendant, overruled plaintiff’s motions for a new trial and in arrest of judgment and entered judgment for costs against the plaintiff, who by this appeal seeks to reverse that judgment and have this court enter a judgment here in his favor against the defendant for $1,000.
    The material facts are in substance as follows: The locations of the two saloons were in a district where it was required to have a petition, signed by a majority of citizens and legal voters residing within a radius of one-eighth of a mile of the saloon, requesting that a license be granted. It was the practice where such signatures were required to have the saloon keeper deliver such petition to the police department at the police precinct in which the saloon was located about fifteen days prior to the commencement of the license period, in order to have the signatures verified by said department; and subsequently, after verifying such signatures, said department sent such petition to the city collector’s office with its recommendation for or against the issuance of the license. In the present case it appears that plaintiff delivered the respective petitions of citizens and voters as to said saloons to the police department about April 15, 1914. During the months of April and May of that year plaintiff was a depositor in the Ogden Park Bank, a private bank, located in the City of Chicago and conducted by one Baumgartner and doing a general banking business. Plaintiff had a checking account with the bank, and on April 29, 1914, the bank, at plaintiff’s request, issued and delivered to him its cashier’s check for $1,000, payable to “Edward Cohen, city collector,” and the amount of the check was charged to plaintiff’s account with the bank. On the same day, April 29th, plaintiff, having previously made applications in writing at the office of the city collector, Edward Cohen, for the issuance of licenses to operate each of the saloons at said locations for the period from May 1 to October 31, 1914, filed with said city collector the required bonds, etc., and also by an agent named Hinkamp delivered to said city collector said check for $1,000 in payment of the $500 license fee for each saloon. The city collector accepted said applications, bonds, etc., and said check, but the licenses were not then issued for the reason that said official had not received the reports of the police department as to the verification of the signatures on the petitions above mentioned. The city collector held said check without castling or depositing the same until May 21, 1914, when he turned the same over to the city treasurer, who, on the same day, deposited it in the Illinois Trust & Savings Bank, located in Chicago, to the credit of defendant, which bank delivered said check on May 22nd to the First National Bank of Englewood, also located in Chicago, which last named bank on the last named day gave a package of checks, drawn on or payable at the Ogden Park Bank, to its messenger for collection, together with a slip showing the separate and total amount of the checks in said package. On the same day the messenger, without examining the checks in said package to see if they corresponded with the amounts mentioned on the slip, shoved the package and slip through the paying teller’s window at the Ogden Park Bank, and the paying teller, after examining the package and not finding therein said check for $1,000,' refused for that reason to pay the check. On the following morning, May 23, 1914, the Ogden Park Bank failed and closed its doors. It clearly appears from the evidence that from the time of the issuance on April 29th of said cashier’s check up to and including May 22nd, said Ogden Park Bank had sufficient funds on hand available for the payment thereof, and that had it properly been presented for payment at said bank at any time up to and including May 22nd it would have been paid. The defendant,' City of Chicago, never received the $1,000 on. said check or any part thereof, and the check has never been returned to plaintiff.
    It further appears that, by ordinance of the City of Chicago relative to the issuance of saloon licenses, the saloon license year is divided into two periods— the first period being from May 1st to October 31st, inclusive, and the second period being from November 1st to April 30th, inclusive, of the following calendar year, and that the fee for each period of six months is $500, payable in advance. A deputy city collector, J. F. McCarthy, in charge of the issuance of saloon licenses, testified in substance that by the usage or practice of his office applications for licenses may be presented at any time, but that the license fee for the first period must be paid before May 1st, “even though we have not completed our investigations ’ ’; that when a voters’ petition is required it is the practice not to issue the license until the police department makes its report as to the verification of said petition and its recommendation, and to hold the money or check given in payment of the license fee until the receipt of such report; that no license is issued “unless we have the money for it, or something that represents money”; and that in payment of a license fee either currency, or a cashier’s check, or a certified check, or even an uncertified check, is accepted.
    It further appears that, under date of April 20,1914, said city collector by communications- in writing referred the applications for the two licenses to the police department for its verification and recommendations; that the application as to the saloon on West 63rd street was not returned to the city collector’s office until May 20, 1914, in which return said department recommended the granting of the license; and that the application as to the saloon on West 74th street was not returned until May 27, 1914, and that as to it said department also recommended the granting of the license. It further appears from the testimony of J. F. O’Brien, cashier in the city collector’s office,.that on May 20, 1914, after the return of the favorable report of the police department as to the saloon on West 63rd street, he (O’Brien) received from said deputy collector, McCarthy, the two bonds which accompanied the respective applications and said cashier’s check for $1,000; that one bond was all right and the one license was ready to be issued, but on the other bond there was a notation that the application had not yet been returned by the police department with its recommendation, and that he should hold $500 with said other bond; that he deposited said check with the city treasurer the next morning (May 21st) and that he (O’Brien) “put $500 in currency aside” with said other bond which he was holding.
    It further appears that after both licenses were ready to be issued the defendant refused to issue the same to plaintiff unless he paid defendant the further sum of $1,000, as license fees; that defendant threatened to prevent plaintiff from operating said saloons without said licenses and to cause plaintiff’s arrest therefor unless he made such payment, and that on June 12, 1914, plaintiff, under protest, paid defendant said further sum of $1,000, in order to procure the issuance of said licenses for said period.
    Defendant in its affidavit of merits filed with its plea of the general issue to plaintiff’s declaration and affidavit of claim, stated as ground of defense that “when plaintiff paid said check into the office of the city collector he tv ell knew that the city collector must necessarily hold the check until such time as the officers of the city could investigate the validity of the signatures on plaintiff’s saloon petition, and if any delay was caused in the depositing of said check it was caused by and with the consent of plaintiff. ’ ’
    On this issue, as to plaintiff’s knowledge of the custom or practice in the city collector’s office, as testified to by McCarthy, of holding checks given by applicants for licenses until the police department investigated and reported as to the validity of the signatures on petitions, where such petitions and signatures are required, such knowledge was not shown. Neither was it shown that plaintiff consented to the holding of the check in question until the police department had made its said investigation and report. Plaintiff testified that he had been in the saloon business for twelve years; that he generally went to the city collector’s office himself and personally got his license and that he had always in the past procured the license the same day he paid the fee therefor either in cash or by check; that at this particular time he was busy and requested Hinkamp to get the licenses for him which the latter agreed to do; and that he never knew that there was any custom or practice in said office of holding checks but knew that the money for the license had to be paid before May 1st. Hinkamp testified that when he delivered the check on April 29th at the city collector’s office nothing was said to Mm about holding the check and that he did not know this was going to be done.
    Vincent D. Wyman, Charles E. Carpenter and O. W. Jurgens, for appellant.
    Richard S. Folsom, for appellee; Leon Hornstein, of counsel.

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

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Counsel for plaintiff contend that the trial court erred in entering judgment against the plaintiff and should have entered a judgment for $1,000 against the defendant. After careful consideration of the facts of this case and the law applicable thereto we agree with the contention.

The cashier’s check- of $1,000 in question was that of a third party; it was made payable directly to the city collector; and it appears to have been accepted by the city collector in lieu of cash. The ordinance of the City of Chicago provides that the license fee of $500 for the period of six months beginning on May 1st shall be paid in advance and it is shown by the testimony of a deputy city collector that the payment of such fee before May 1st is absolutely required. The check was accepted on April 29th, but it was not deposited for collection by the defendant until May 21st, and not presented for payment prior to the failure of the Ogden Park Bank on May 23rd. And the evidence shows that had it been presented at that bank at any time up to and including May 22nd it would have been paid. We understand it to be the law that the acceptance of a check of a third party implies an undertaking of due diligence in presenting the cheek for payment and that in case of loss through want of due diligence such acceptance will be held to operate as payment. In Brown v. Schintz, 202 Ill. 509, 514, the court says, quoting from Story on Promissory Notes: “If a creditor accepts the note of a third person, or draft or bill, though not in payment, he accepts the duty of doing everything necessary to fix the liability of the parties to the paper.” And the court further says (p. 515), quoting from Daniel'on Negotiable Instruments: “The receipt of a check, therefore, before presentment, if there is no laches on the part of the holder, is not payment of the debt for which it is delivered. But if the party receiving it is guilty of laches in presenting it, and the bank in the meantime suspends payment, he thereby makes it his own and it shall operate as payment of his debt, the drawer having funds in the bank at the time of drawing the check and not having withdrawn them.” In the present case, the bank and all parties interested being located or residing in the City of Chicago, due diligence on the part of defendant required it, as payee of the check in question, to present the same for payment on the same day, or at the furthest the next day, within banking hours, after the check was delivered to it. (Brown v. Schintz, supra; Bickford v. First Nat. Bank of Chicago, 42 Ill. 238, 244.) In Kilpatrick v. Home Building & Loan Ass’n, 119 Pa. St. 30, 36, it is said: “In the absence of an agreement to the contrary, a check or promissory note, of either the debtor or a third person, received for a debt, is merely conditional payment, that is, satisfaction of the debt, if and when paid; but the acceptance of such check or note implies an undertaking of due diligence in presenting it for payment, etc., and if the party from whom it is received sustains loss-by want of such diligence, it will be held to operate as actual payment.” (See also, Manitoba Mortgage Co. v. Weiss, 18 S. D. 459; Smith v. Miller, 43 N. Y. 171, 176.) We know of no reason why in this case the above well-settled rules of law are not applicable to the defendant, City of Chicago.

While the testimony of the deputy city collector, McCarthy, tended to show that it was the custom or practice of his office not to issue a saloon license, and to hold the money or check accepted in payment of the license fee, until receiving the report of the police department as to the validity of the signatures on the voters’ petition where such signatures were required, still the evidence does not show that plaintiff, or his agent Hinkamp, had knowledge of that custom or practice, or that either knew when the check was delivered that it would he held and not deposited until the receipt of a favorable report of the police department as to said signatures by the city collector, or that either consented to such action. The custom or practice, in order to be binding on plaintiff, must have been actually known to him when the check was delivered. (Bank of Commerce v. Miller, 105 Ill. App. 224.) And even if Hinkamp, who simply acted as a messenger for plaintiff to deliver the check to the city collector’s office, had knowledge that there was such a custom or practice (as counsel for defendant contend his testimony tends to show he did), we do not think that such knowledge on Hinkamp’s part would, under all the testimony, be notice to plaintiff and binding upon him. (31 Cyc. 1648; Burton v. Perry, 146 Ill. 71, 118; Snyder v. Partridge, 138 Ill. 173, 184.)

And we do not think there is any merit in the contention of counsel for defendant that the delivery of the check was in the nature of an escrow agreement. By the terms of the city ordinance, as well as by the usage or practice in the city collector’s office, payment of the license fees was required before May 1st, and the check was accepted as a compliance with that requirement. Furthermore, one of the essential requirements to a deposit in escrow is that the delivery can be made only to a stranger and not to a party or his authorized agent. (16 Cyc. 571; Worrall v. Munn, 5 N. Y. 229; Baum v. Parkhurst, 26 Ill. App. 128; Ryan v. Cooke, 68 Ill. App. 592.)

The judgment of the Superior Court is reversed and judgment is entered here in favor of the plaintiff, Kraetsch, and against the defendant, City of Chicago, for the sum of $1,000.

Judgment reversed and judgment here.

Finding of Facts: We find as facts that on April 29, 1914, plaintiff by an agent delivered to defendant, and defendant accepted, the $1,000 check in question in payment of license fees for two saloons; that neither plaintiff nor his agent consented that defendant might delay the due presentment of said check for any reason ; that plaintiff had no knowledge of any custom or practice of defendant to hold such checks until the receipt of any report from its police department; that defendant held said $1,000 check, and made no attempt to have the same presented for payment, until May 21,1914; that because of such delay in presentment the money on said check was not received by defendant; and that on June 12, 1914, plaintiff again paid defendant, under protest and because of threats of arrest, the sum of $1,000 for said license fees for said two saloons.


text:
    E. E. McCarthy and C. P. Lardie, trading as McCarthy & Lardie, Appellants, v. Chicago Northwestern Railway Company, Appellee.
    Gen. No. 21,264.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 28, 1916.
    Statement of the Case
    Action in assumpsit by E. E. McCarthy and C. P. Lardie, trading as McCarthy & Lardie, plaintiffs, against Chicago & Northwestern Railway Company, defendant, for damages for injury to three cars of potatoes. From a judgment in favor of defendant, plaintiffs appeal.
    The potatoes were loaded into three cars at Spencer, Michigan, from which point they were consigned over the route designated “Ludington & C. & N. W.,” in bills of lading issued by the Pere Marquette Railroad Company on January 30, 1912, which bills of lading showed the potatoes to have been received in apparently good order. After being conveyed to Traverse City, Michigan, and to Ludington, Michigan, they were ferried across Lake Michigan, arriving in Manitowoc, Wisconsin, on February 2, 1912, on which day the temperature ranged from 15 degrees above to 7 degrees below zero, and on the following day from 3 degrees above to ,16 degrees below zero. Plaintiffs’ agent and caretaker, C. E. Martin, testified that he rode in the cars from Traverse City to Chicago and kept a hot fire in the stove in each car at all times.
    A telegram saying, “We will stand the loss if any by freezing; send cars forward today, to Grand Avenue, Chicago,” was received by defendant’s agent at Manitowoc at 1:15 p. m. on February 2nd, and the cars were received by defendant at 2:30 p. m. the same day. The cars were hauled to defendant’s freight yard where they remained until 4 p. m., February 3rd, whence they left for Chicago, arriving there on Februrary 5th.
    At about noon on February 2nd, B. A. Little, assistant freight claim agent of defendant at Chicago, informed E. E. McCarthy, one of the plaintiffs, that on that morning defendant had wired instructions to its agents at certain junction points, including Manitowoc, not to receive perishable goods from shippers on connecting lines on account of the weather conditions.
    Subsequently, on the same day, plaintiffs again wired defendant’s freight agent at Manitowoc as follows: “Put cars we wired on this morning in roundhouse. Wait instructions from Mr. Little.” This telegram was received by defendant’s said agent at 4:17 p. m. It did not appear that any instructions were afterwards received by said agent from Little or that Little was to send any. Defendant maintained a roundhouse at Manitowoc. It contained only four stalls, each stall capable of housing one engine or one freight car, and defendant there had no other facilities for “roundhousing” engines or cars containing perishable goods. On the night of February 2nd, two of defendant’s engines were put in said .roundhouse and two freight cars, of the refrigerator type having no stoves therein, containing perishable goods. It appeared that it is not the custom to “roundhouse” any car containing perishable goods where the car has false bottoms and sides and a stove therein and an attendant to maintain the fires, as was the case with the cars in question. It further appeared from the testimony of plaintiffs’ caretaker, Martin, in charge of the heating of the cars, that when freight train No. 180, scheduled to leave Manitowoc on the afternoon of February 2nd, finally arrived from the north about 2 o’clock on the morning of February 3rd, he heard the conductor of the train say that he could not put the three cars in said train for the reason that “he had his tonnage,” which meant that he then had in his train all the cars he could haul on his division; that the cars in question remained in the yard exposed to the cold wind; that notwithstanding he kept a hot fire in the cars all the time some of the potatoes at the ends of the cars were frozen on February 3rd and before they left Manitowoc; and that they were in good condition and not frozen when they arrived in Manitowoc. It further appeared from the evidence that shortly after the arrival of the potatoes in Chicago, on February 5th, the same were sold, and that solely because of their frozen condition plaintiffs sustained a loss of about $773. It did not appear, however, that plaintiffs suffered any, damages by reason of any unreasonable delay, if such delay there was, in the delivery of the potatoes at Chicago.

      Abstract of the Decision.
    1. Carriers, § 139

      —when evidence sufficient to establish that carrier had not breached its contract to carry produce safely. In an action of assumpsit for damages for injury to three carloads of potatoes, evidence held sufficient to establish that the railroad company had not failed in the performance of its implied contract to safely carry plaintiffs’ potatoes, it appearing that plaintiffs wired defendant’s agent, before the cars were received by defendant, to accept the cars, that any loss by freezing would be stood by plaintiffs, that weather conditions were severe, and that the cars were heated by stoves in charge of plaintiffs’ caretakers.
    2. Carriers, § 121*—when shipper assumes liability for loss ' by freezing of produce. A telegram from plaintiffs to the agent of defendant railroad to accept cars and that they would stand any loss to the potatoes by freezing, held not to be construed as only meaning that plaintiffs would relieve defendant from its liability as an insurer and not from liability resulting from negligence, but that such telegram and the action of defendant thereafter in accepting such cars should be considered as in the nature of a special agreement between the parties whereby they proposed to defendant that if it would accept the cars at once they would assume loss by freezing, it appearing that plaintiffs were anxious to get the potatoes to destination as quickly as possible, and knew of severe winter weather conditions whereby the cars might be held up at a ferry landing, and that cars were heated and in charge of caretaker.
    Charles A. Butler, for appellants; Franklin Raber, of counsel.
    C. A. Vilas and I. C. Belden, for appellee; William G. Wheeler, of counsel.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. James Thomas and Joseph E. Snowden. Joseph E. Snowden, Plaintiff in Error.
    Gen No. 21,285.
    (Hot to he reported in full.)
    Error to the Criminal Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed March 28, 1916.
    Rehearing granted and opinion filed April 28, 1916.
    Statement of the Case
    Action by the People of the State of Illinois against James Thomas and Joseph E. Snowden, defendants, on a recognizance taken in open court in the sum of $1,000 which was forfeited by the nonappearance of the principal, James Thomas. From a judgment on such recognizance in favor of the People, defendant Joseph E. Snowden brings error.
    Joseph E. Snowden became surety on a recognizance taken in open court in the sum of $1,000 which was forfeited because of the nonappearance of the principal, James Thomas, in the Cook county Criminal Court. Thereafter, on February 8,1913, judgment was entered in favor of the People against Thomas and Snowden in the sum of $1,000 and costs. To reverse the judgment, Snowden on February 27, 1915, sued out writ of error and moved that same be made a supersedeas, filing with the motion certain written suggestions, which motion was on May 1, 1915, allowed by the Appellate Court.
    It appeared from the original transcript of the record that Thomas was indicted by the grand jury of Cook county for larceny; that Thomas, with Snowden as surety, entered into said recognizance; that Thomas did not appear and the recognizance was declared forfeited and a writ of scire facias ordered to be issued for them to show cause why the forfeiture should not be made absolute, and that on February 8, 1913, the Criminal Court entered an order reciting that “the writ of scire facias issued herein has been duly returned by the Sheriff of Cook county,” etc., and declaring that said forfeiture be made absolute and entered said judgment. Nowhere in the original transcript of the record was there' contained any writ of scire facias.
    Abstract of the Decision.
    Bail, § 91

      —-When trial court has no jurisdiction to enter final judgment on recognizance. The trial court has no jurisdiction to enter final judgment on a recognizance which was forfeited by the nonappearance of the principal, where the writ of scire facias is not served upon the surety until the first day of the term at which it is returnable.
    George W. Blackwell, for plaintiff in error; George H. Sugrue, of counsel.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Barnes

text:
    Rudolph Eller, Appellee, v. Frances A. Eller, Appellant.
    Gen. No. 21,308.
    (Not to The reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 28, 1916.
    Rehearing denied April 10, 1916.
    Statement of the Case.
    Bill for divorce by Rudolph Eller, complainant, against Frances A. Eller, defendant. From a decree for complainant, defendant appeals.
    The decree appealed from granted the husband a divorce on the ground of extreme and repeated cruelty, dismissed the wife’s cross-bill for separate maintenance, directed partition of certain real estate owned by them as tenants in common, and appointed a receiver to collect the rents from the property pending the partition proceedings. Defendant contended that the decree was against the clear preponderance of the evidence, that the cross-bill was supported by the greater weight of the evidence, that the court had no jurisdiction to make partition or appoint a receiver.
    The decree found that the wife had since their intermarriage been guilty of extreme and repeated cruelty substantially as charged in the bill of complaint, that she was a woman of great austerity of temper, that she indulged in violent sallies of passion, that she had on two occasions used personal violence towards her husband,' striking him once a violent blow in the face resulting in pain and loosening his teeth and at another time on his hand with a heavy hatchet, bruising it and causing pain; and that she used towards him opprobrious, obscene and abusive language without provocation, and maliciously and without reasonable cause accused him of having* unlawful sexual intercourse with one of his tenants. Against the evidence of seven witnesses as to lior use of opprobrious epithets and abusive language towards him, there was her bare uncorroborated denial, and against three witnesses charging him with similar language towards her, there was his bare denial. The motives and interests of these several witnesses were not disclosed in the record.
    Her version as to both incidents of physical violence was supported by her son, who took an active part in her behalf in one of them, her daughter and another witness, as to one occasion, and her daughter and son-in-law, as to the other occasion, corroborated in the main his version of the affairs. The main acts of cruelty charged by her against him were parts of the same incidents relied upon to establish his charges of the same character. There was evidence of intentional commission without just provocation of two distinct .acts of physical violence against him of a painful and serious character, while she was in a state of ungovernable temper and evincing an utter disregard of any danger that might attend them. There was evidence showing the history of their family troubles apparently began over money matters in which he was seemingly fair and generous, and showing that he had always evinced a kind and peaceable disposition towards her and her children by a former marriage, and that she was a large, strong woman, of high temper and wilful quarrelsome disposition, given to vituperative and vulgar language towards him and his tenants (all of whom testified for him and against her), and that she had evinced a manifest disposition to get hold of his property and to get rid of him, and had previously without good grounds filed a bill for separate maintenance, which she dismissed, containing unjustifiable charges against him, and that he was at the time of trial nearly seventy years old (her senior by about eighteen years).

      Abstract of tie Decision.
    1. Divorce, § 45

      —what constitutes preponderance of evidence in favor of plaintiff. There being sufficient evidence on which to base each finding in a decree for divorce, whether such evidence preponderates in complainant’s favor depends upon the credibility of witnesses.
    2. Witnesses, § 261*—how credibility determined. The opportunity to see as well as hear is of the greatest importance in determining the weight and credibility of evidence.
    3. Divorce, § 77*—when decree in divorce action not disturbed on appeal. Charges in bill and cross-bill being of same nature and character, and the evidence irreconcilably conflicting at most essential points, thus requiring close consideration of the witnesses’ credibility, the Appellate Court will not disturb the decree or analyze the evidence.
    4. Divorce, § 47*—when evidence.sufficient to show cruel and inhuman treatment of husband by wife. On a bill for divorce by a husband, evidence held sufficient to establish extreme and repeated cruelty of wife to husband.
    5. Divorce, § 144*—when court jurisdiction to partition real estate of husband and wife. A court in divorce suit may make partition of real estate of husband and wife.
    6. Divorce—when settlement of controversy as to real estate conclusive upon parties. Where parties in divorce suit by mutual agreement settle all controversies and questions respecting their real estate, and it is so found in the decree, they cannot afterwards raise such question on its merits.
    7. Appeal and error, § 429*—when question of multifariousness not properly raised on appeal. Question of multifariousness in pleading in divorce suit is improperly raised in the Appellate Court for the first time.
    Alonzo M. Griffen and Robert E. Berlet for appellant.
    Chytraus, Healy & Frost, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Theron J. Dyke, Appellant, v. Milton E. Petty et al., Appellees.
    Gen. No. 21,319.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Chasms H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed March 28, 1916.
    Rehearing denied April 10, 1916.
    Statement of the Case.
    Proceedings on motion by Milton E. Petty, Henry E. Petty and John McFeely to vacate a judgment taken against them by default in favor of Theron J. Dyke, plaintiff. From an order vacating such judgment, plaintiff appeals.
    The order was based on a motion in writing made at a subsequent term in behalf of said Milton E. Petty to correct an alleged error in fact, under section 89 of the Practice Act (J. & A. ft 8626). The basis of the proceeding was the contention that said Petty was mentally incapacitated when served with summons and remained so until after judgment. The request of plaintiff for an oral hearing was denied, and the hearing was had on affidavits.
    There were two affidavits in support of the motion and two counter affidavits. The former were by physicians, who attended on said Petty in the period referred to, and contained positive, unqualified averments that he was then wholly irresponsible and mentally incapacitated. The counter affidavits were, one by the deputy sheriff, who expressed a contrary opinion, and one by plaintiff’s counsel containing matter almost entirely hearsay in character.
    Edward Marshall, for appellant.
    No appearance for appellees.

      Abstract of the Decision.
    1. Judgment, § 280

      —when court does not abuse its discretion in refusing oral hearing on motion to vacate. While on a motion to vacate a judgment on account of mental incapacity of one of the defendants, an oral hearing may he had in the discretion of the court under the Practice Act, Hurd’s Rev. St., ch. 110, sec. 89 (J. & A. jf 8626) held that there was no abuse of discretion in denying the request and holding the hearing on affidavit.
    2. Judgment, § 295*—when order vacating judgment not disturbed for failure to include formal finding of fact. Where an order to Vacate a judgment, on the ground that one of the defendants thereto is mentally incapacitated, does not include an express finding of fact, but the issue of such defendant’s mental incapacity is the only one raised, and the order is justified by affidavits of persons most capable of judging of mental conditions, it will not be disturbed because of such informality.

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

   Mr. Justice Barnes

delivered the opinion of the court.