text:
    Annie Ball, Appellant, v. Iroquois Memorial Emergency Hospital et al., Appellees.
    Gen. No. 22,790.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term> 1916.
    Affirmed.
    Opinion filed May 21, 1917.
    Statement of the Case.
    Action by Annie Ball, plaintiff, against the Iroquois Memorial Emergency Hospital, Bichard T. Crañe, L. P. Friestedt Company, Lanquist & Hlsley Company, John E. O. Pridmore, City of Chicago and Murdock Campbell, defendants, to recover damages for injuries to plaintiff’s party wall. From a judgment for defendants, plaintiff appeals.
    Plaintiff was the owner of premises known as No. 25 North Market street, Chicago, improved by a four-story brick building. A party wall agreement existed as to this building and a similar building immediately south on premises known as No. 23 North Market street, leased for 99 years by one of the defendants and released from August 1, 1908, to the City of Chicago for a term of years. Between May 1 and September 1,1910, the latter building was tom down and a new building erected on that lot. Immediately south of that lot was an alley and south of the alley property known as the Hearst property, on which in the summer of 1910 a large number of caissons were sunk for the erection of a building thereon. The lots Nos. 23 and 25 North Market street were each twenty by seventy feet in dimensions. The new building on the former lot was erected on the old foundation.

      Abstract of the Decision. ‘
    1. Adjoining landowners, § 6

      —when evidence is sufficient to show injury "by person other than lessee of party wall. Evidence held sufficient to sustain the finding that the damage to plaintiff’s building, if any, consisting of the falling of a party wall and other damage, was the result of work done on another than defendants’ property and was not caused by any conduct of commission or omission of the defendants, lessees of a party wall.
    2. Damages—when evidence as to loss of profits is properly excluded. Evidence held to furnish no basis of fact for the introduction of evidence of the loss of profits to plaintiff’s business as an element of damages claimed, in an action to recover for being deprived of the use of a certain building in which plaintiff conducted such business, where plaintiff kept no record, books or papers other than certain mail orders, which were destroyed from year to year, and a bank pass book, which could not be found, and such evidence as to loss of profits was properly excluded.
    F. L. Salisbury and M. Marso, for appellant.
    Pain, Campbell & Kasper, Charles E. Pain and Samuel A. Ettelson, for appellees; Ralph G. Crandall, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Dever

license: Public Domain

text:
    John Morrison, Appellant, v. John R. Laverty, Appellee.
    Gen. No. 22,810.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and ebbor, § 369

      —when different theory of recovery may not he advanced on appeal. On appeal by plaintiff from a judgment in favor of the defendant, the plaintiff cannot advance in the Appellate Court a theory of recovery different from that presented in the trial court.
    Appeal from the Municipal Court of Chicago; the Hon. Peed C. Hill, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 21, 1917.
    Statement of the Case.
    Action by John Morrison, plaintiff, against John R. Laverty, defendant, to recover rent. From a judgment in favor of defendant, plaintiff appeals.
    Ryan & Lewis, for appellant.
    Lambert & Mayer, for appellee.

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

   Mr. Justice Dever

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    John F. Devine, Administrator, Appellee, v. Erie Railroad Company, Appellant.
    Gen. No. 22,829.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Death, § 50b*—when evidence is sufficient to show that contributory negligence of deceased is proximate cause of death. In an action to recover for death by wrongful act, evidence examined and held to show that the negligence of plaintiff’s intestate was the primary cause of xthe accident which caused his death.
    2. Master and servant, § 101

      —what is duty of master towards servant of independent contractor in place of danger. The only duty owed by the employer of an independent contractor to the servant of such contractor who voluntarily puts himself in a place of danger, where his work does not require him to be, is to avoid wantonly or wilfully injuring him.
    Appeal from the Circuit Court of Cook county; the Hon. David P. Matciiett, Judge, presiding. Heard-in this court at the October term, 1916'.
    Reversed with finding of fact.
    Opinion filed May 21, 1917.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of George Hinzenstem, deceased,- plaintiff, against the Erie Railroad Company, a corporation, defendant, to recover for the death of plaintiff’s intestate. From a judgment of $2,000 entered upon the verdict of a jury, defendant appeals.
    W. O. Johnson, Bull & Johnson and George C. Gale, for appellant.
    Charles A. Churan and Wiley W. Mills, for appellee.

      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:
    Anthony Morolewski, Appellee, v. Richard McCurrie et al., Appellants.
    Gen. No. 22,848.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 185

      —when evidence insufficient to support verdict. Evidence in action to recover for personal injuries examined and held insufficient to support the verdict.
    2. Master and servant, § 1*—when evidence insufficient to show existence of relationship. Evidence in action for personal injuries examined and held not to show existence of relation of master and servant between defendant and the person through whose negligence the injuries were alleged .to have been caused.

      Appeal from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed May 21, 1917.
    Statement of the Case.
    Action by Anthony Morolewski, plaintiff, against the American Laundry Machinery Company, Lord & Bushnell Company and Richard McCurrie, defendants, to recover for personal injuries. At the trial plaintiff took a nonsuit as to the American Laundry Machinery Company and the jury found in favor of Lord & Bushnell Company and returned a verdict against McCurrie, on which judgment was entered for $2,650. From this judgment defendant McCurrie appeals.
    Litzinger, McGurn & Reid, for appellants.
    Julius B. Rubenstein and Edward J. Green, for appellee.

      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.

3. Negligence, § 157*—when burden of proof is on plaintiff. In an action to recover for personal injuries alleged to have been caused by defendant’s negligence, the burden of proving that plaintiff was in the exercise of due care, that his negligence did not contribute to cause the accident and defendant’s negligence was the proximate cause of the injury, is on the plaintiff.


text:
    E. V. Bradley, Appellee, v. Progressive Metal & Refining Company, Appellant.
    Gen. No. 22,855.
    1. Bills and notes, § 327

      —what is unavailable as defense in action on note. In an action to recover on a promissory note absolute on its face, an oral contemporaneous contract in contradiction of the terms of the note is unavailing as a defense.
    2. Bills and notes, § 220*—when subsequent indorsee may avail himself of title of first indorsee. If a first indorsement of a note is valid and vests title to the note' in the indorsee, such title may be availed of in an action by any subsequent indorsee and holder of the note.
    3. Pleading, § 153*—when affidavit of merits is insufficient. It is not sufficient to set forth on information and belief the material defenses in the affidavit of merits in an action on a note.
    '4. Bills and notes, § 351*—when affidavit of merits insufficient to avoid assignment of note. The statement in the affidavit of merits in an action against the maker of a note that the payee was the owner of' the note at the time of maturity “in so far as any indebtedness which may be due from defendant to said payee,” held to be ambiguous and not to constitute any fact which in law would operate to avoid the assignment of the note by the payee and continue the title in it.
    5. Bills and notes, § 333*—when allouxmce of set-off is improper. In an action on a note, defendant’s counterclaim in the nature of a set-off which is in excess of the amount of the note is repugnant to Hurd’s Rev. St. ch. 98, sec. 12 (J. & A. 1f 7633), limiting a set-off to the amount of plaintiff’s debt.

      6. Set-off and recoupment, § 10*—when set-off cannot be claimed. Set-off cannot be claimed for unliquidated damages.
    7. Pleading, § 157

      —when filing of affidavit of merits is within discretion of court. The allowance of a motion to file a third affidavit of merits rests in the sound discretion of the trial court.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 21, 1917.
    Rehearing denied June 4, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Bernstein, Grossman & Zolla, for appellant.
    Benjamin B. Morris, for appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

From a judgment of $3,548 entered as in case of default, defendant appeals.

This action is upon a note for $3,500, executed by defendant, payable to the order of the Chicago Smelting & Refining Company, sixty days after date, with interest at six per cent, per annum. Plaintiff is the second indorsee of this note. The note is dated at Milwaukee, Wisconsin, and on the ground that defendant was a nonresident of the State of Illinois, an attachment was issued and certain moneys garnisheed, but as defendant voluntarily appeared and gave bond, the questions arising on the attachment issue are not before the court. Defendant filed an affidavit of merits; which, on motion, was stricken, and by leave of court filed a new affidavit of merits. In their essence the two affidavits are of like purport, the second affidavit stating the facts recited in the first in greater elaboration. The affidavits of merits set up as defenses that the note was given in consideration of the payee delivering to the maker goods to the value of the note before its maturity, and that in this regard it had failed, and delivered goods to the extent only of $1,950; also setting up an account between the payee and defendant, in which the payee is alleged to owe to defendant a balance of $40.85, and averring that the payee was the owner and holder of the note in suit at the time of its maturity “in so far as any indebtedness which may be due from this defendant to the Chicago Smelting and Refining Company”; that plaintiff is not the innocent holder for value before maturity and that defendant is informed and believes that the payee is the holder and owner of the note, and that therefore defendant is not indebted to plaintiff in any sum. Defendant further sets up that by reason of the transaction between itself and the payee in the note and by reason of the failure of the payee to carry out its contract made with defendant, that defendant “has been damaged in a large sum of money, and that the damages suffered by this defendant are in excess of the amount of said note set forth in the plaintiff’s statement and affidavit of claim.” After the striking of the second affidavit of merits, the court proceeded to assess damages on production of the note in evidence upon plaintiff’s affidavit of claim under Rule 17 of the Municipal Court Act, which provides, inter alia, that “where the defendant’s affidavit of merits is stricken from the files for insufficiency, the court may then and there enter judgment as in case of default for the plaintiff upon the plaintiff’s affidavit of claim in said cause.”

Defendant stated no fact in its affidavits of merits which in law constitutes a defense to the action upon the note in suit. The attempt to set up an oral contemporaneous contract in contradiction of the terms of the note is unavailing as a defense, as evidence of such contract would be incompetent as tending to vary .the terms of an instrument absolute on its face. Hesch v. Dennis, 194 Ill. App. 663.

The assignment by the payee to Feinberg, the first indorsee, is in no wise challenged by the affidavit of merits, nor is it denied that such assignment was made before maturity and for a valuable consideration. It is the well-settled law of this State that a remote indorsee may avail of the title of any prior indorser, and if, as in the instant case, the first indorsement was valid and vested the title to the note in such indorsee, that title may be availed of in an action by any subsequent indorsee and holder of such note. The doctrine is as announced by Mr. Justice Scholfield in Matson v. Alley, 141 Ill. 284, in these words:

“And although Alley is an assignee after maturity, his assignor, Bliss, was an assignee before maturity, and Alley is entitled to stand in the place of Bliss, and no defense could be urged by the corporation as against Alley which it could not have urged against Bliss had he remained the owner of the notes and sought to enforce their collection.” Woodworth v. Huntoon, 40 Ill. 131.

In Comstock v. Hannah, 76 Ill. 531, it was held that a party who takes commercial paper before due, for a valuable consideration, without knowledge of any defects of title and in good faith, holds it by a title valid against the world.

As the assignment to Feinberg was not challenged, regardless of when and for what consideration plaintiff obtained the note, he may avail of Feinberg’s unchallenged title and recover the amount due on the note. Furthermore, the material defenses "set forth in the affidavits of merits are upon information and belief. This is not sufficient. Hitchcock v. Herzer, 90 Ill. 543.

Again, the statement in the affidavit that the payee of the note was the owner of the note at the time of maturity, “in so far as any indebtedness which may be due from defendant to said payee,” is "ambiguous and does not constitute any fact which in law -would operate to avoid the assignment of the note by the payee and continue the title in it for such restricted purpose notwithstanding such assignment. Defendant’s counterclaim in the nature of a set-off, which it states is “in excess of the amount of said note set forth in plaintiff’s statement and affidavit of claim,” is repugnant to section 12, ch. 98, Eev. St. (J. & A. ff 7633), which limits a set-off to the amount of plaintiff’s debt. See opinion in Reid v. McKinney, 202 Ill. App. 129.

It also appears that the set-off claimed is for unliquidated damages, which, it was held in J. B. Madsen & Co. v. Hogans, 189 Ill. App. 589, cannot be done.

It is likewise contended that it was error for the court to deny defendant the right to file a third affidavit of merits. The allowance of such motion rested within the sound discretion of the court and we cannot hold that such discretion was abused in the denial of such motion, as defendant had been accorded every opportunity to state any defense which it might have against plaintiff’s claim.

As neither of defendant’s affidavits stated any facts which in law constitute a defense to the action, the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Fred G. Hunter, Appellee, v. Bush Hat Company, Appellant.
    Gen. No. 22,859.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 84

      —when evidence sufficient to support verdict. Evidence in an action for wages, examined and held to support the verdict.
    2. Appeal and error, § 1749*—when judgment affirmed. On appeal from the finding and judgment in an action to recover wages, held that no error of law or procedure appeared justifying a reversal of the judgment.
    Appeal from the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 21, 1917.
    Statement of the Case.
    Action by Fred Gr. Hunter, plaintiff, against the Bush Hat Company, a corporation, defendant, to recover wages alleged to be due. Defendant put in a set-off for the value of certain property alleged to have been retained by plaintiff. On the cross-action plaintiff denied the indebtedness and claimed a settlement. On the trial before the court there was a finding against both the claim and the set-off and a judgment against plaintiff for costs, from which defendant appeals.
    William B. Jarvis, for appellant.
    John M. Rankin, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Emanuel F. Selz, Appellee, v. James W. Stafford, Appellant.
    Gen. No. 22,871.
    (Not to Tbe reported in full.)
    Abstract of the Decision.
    1. “Appeal and error, § 1170

      ,—when moot question not determined. In an action brought to recover rent and for forcible detainer where, before the trial, possession of the premises is surrendered, it is not proper that the court determine the moot question as to possession.
    2. Municipal Court of Chicago, § 13*—what is effect of striking affidavit of defense and counterclaim and proceeding with trial. In an action of the fourth class where a defendant’s affidavit of defense and counterclaim are stricken from the files and the cause proceeds to trial, defendant is in default and admits every material averment of plaintiff’s claim.
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 21, 1917.
    Rehearing denied June 4, 1917.
    Statement of the Case.
    Action of the fourth class by Emanuel F. Selz, plaintiff, against James W. Stafford, defendant, in forcible detainer for the possession of certain premises and to recover rent alleged to be due. From a judgment in favor of plaintiff for $2,358.19, defendant appeals.
    C. Van Alen Smith, for appellant.
    Mayer, Meyer, Austrian & Platt, for, appellee.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

3. Municipal Court of Chicago, § 13*—what need not be attached to statement of claim in action for rent. In an action in the Municipal Court of Chicago to recover rent due under a lease, plaintiff is not required to attach a copy of the lease to his statement of claim or to offer it in evidence.

4. Municipal Court of Chicago, § 8*—when jurisdiction not affected by commencement of action as of fourth class. The fact that an action in the Municipal Court of Chicago was commenced as an action of the fourth class does not deprive that court of jurisdiction to enter judgment in excess of $1,000.

5. Municipal Court of Chicago, § 28*—when objection as to lack of jurisdiction is too late. An objection that the Municipal Court of Chicago is without jurisdiction to enter judgment in excess of $1,000, in an action commenced as an action of the fourth class, comes too late when first made on appeal.

6. Municipal Court of Chicago, § 8 —what constitutes conceding of jurisdiction by defendant in action of fourth class. "Where defendant in an action of the fourth class in the Municipal Court of Chicago states in his affidavit of set-off and counterclaim that his damages exceed plaintiff’s claim and also that his damages amount to $20,000, he concedes the jurisdiction of the court to enter a judgment in favor of either party in excess of $1,000.

7. Landlord and tenant, § 297*—when tenant not entitled to apportionment of rent. In an action to recover rent claimed to be due under a lease, where the amount claimed is admitted by defendant’s default, defendant is not entitled to an apportionment of the rent hy reason of his having surrendered the premises before the expiration of the time for which rent is sought to be recovered.

8. Landlord and tenant, § 311*—when tenant may not offset against rent damages for interference with use of premises. A tenant who continues in the use and occupation of the premises cannot offset against the rent, damages claimed to have been caused him by reason of inconvenience in the use and occupation of the premises and hy reason of conduct of the landlord tending to interfere with their beneficial enjoyment.

9. Set-off and recoupment, § 44*—what is extent of right of set-off. Under Hurd’s Rev. St. ch. 98, sec. 12 (J. & A. ji 7633), a set-off is limited to the amount of plaintiff’s claim.

10. Set-off and recoupment, § 10*—what is not subject of. A claim for unliquidated damages can neither be set off nor recouped against a claim for liquidated damages.


text:
    Ignacy Kubiatowski, Appellee, v. Henry Pratt Boiler & Machine Company, Appellant.
    Gen. No. 22,876.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1447

      —when elimination of counts from declaration is not reversible error. A judgment will not be reversed because the trial court eliminated from the declaration counts which served no useful purpose.
    2. Damages, § 78*—when remittitur may not be complained of. One who voluntarily enters a remittitur cannot complain thereof on appeal.
    3. Master and servant, § 682*—when evidence sufficient to show relation of vice principal. In an action to recover for personal injuries alleged to have been caused by the negligence of defendant’s vice principal, evidence examined and held to warrant a finding that the relation was that of vice principal and not that of fellow-servant.
    Appeal from the Superior Court of Cook county; the Hon. Jambs S. Baume, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 21, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Ignacy Kubiatowski, plaintiff, against Henry Pratt Boiler & Machine Company, defendant, to recover for personal injuries. From a judgment of $5,000 for plaintiff entered upon a verdict of the jury after a remittitur from such verdict of $3,000, defendant appeals.
    W. G. Shockey and C. W. Greenfield, for appellant.
    S. P. Douthart and Fred C. Smith, 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.

4. Master and servant, § 751 —when contributory negligence of servant is question for jury. In an action by a servant to recover for personal injuries, the question of contributory negligence held to be for the jury.

5. Master and servant, § 701*—when evidence sufficient to show that contributory negligence of plaintiff is not■ proximate cause of injury. In an action by a servant for personal injuries, evidence examined and held to support a finding that the plaintiffs negligence was not the proximate cause of the injury.

6. Master and servant, § 683*—lohen evidence sufficient to show negligence. In an action by a servant for personal injuries, evidence examined and held to be sufficient to support a finding that defendant was guilty of negligence.

7. Evidence, § 148*—when exhibition of injured member is not error. In an action for personal injuries, the exhibition of the injured member to the jury held not a ground for reversal.

8. Damages, § 241*—when verdict for personal injuries not excessive. Verdict of $8,000 from which a remittitur of $3,000 was made, in an action for personal injuries, held not so excessive as to show passion or prejudice.


text:
    Our Savior Norwegian Evangelical Lutheran Congregation of Chicago, Appellant, v. Firemen’s Insurance Company of Newark, New Jersey, Appellee.
    Gen. No. 22,886.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 21, 1917.
    Rehearing denied June 4, 1917.
    Statement of the Case.
    Action by Our Savior Norwegian Evangelical Lutheran Congregation of Chicago, a corporation, plaintiff, against Firemen’s Insurance Company, of Newark, New Jersey, a corporation, defendant. From a judgment entered on the verdict of the jury for $105.53 for plaintiff, the latter appeals.
    Abstract of the Decision.
    Appeal and error, § 1751*—-when judgment affirmed on strilcing hill of exceptions. Where, on appeal, the bill of exceptions has been stricken from the record, and the errors assigned are not solvable without reference to the bill, the judgment will be.affirmed.
    John J. Sonsteby, for appellant.
    Seymour Edgerton, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    Florence M. Hazard, Appellant, v. Nathaniel T. Hazard, Individually and as Administrator et al., Appellees.
    Gen. No. 22,888.
    1. Divorce—ufhat is sufficient proof of service of notice hy mail on nonresident. In a suit against a nonresident for divorce, where notice is served by mail, proof of receipt of such notice is not required, but a certificate of the clerk that .the notice was mailed is sufficient compliance with the statute.

      2. Divorce, § 45

      —when 'evidence sufficient to show notice of divorce proceedings. On a bill of review to set aside a decree of divorce, evidence examined and held to show that complainant had knowledge and notice of the divorce and agreed to the terms of the decree.
    3. Divorce, § 67*—when wife barred hy laches from questioning default decree. One who, with full knowledge of the pendency of a suit against her for divorce, acquiesces in and agrees to all that is done and accepts a financial settlement based thereon and does not question the decree until the husband has been dead more than four years after the entry of the decree, is barred by laches from contesting such decree, especially where there is no reason for the delay and the rights of innocent third persons have intervened.
    4. Divorce—when depositions may he used. On a suit for divorce, it is not required by the Act of 1874, sec. 8 (J. & A. H 4223), that the witnesses be examined orally in open court, but they may be heard by deposition, the purpose of the act being only to prevent the reference of default divorce causes to masters in chancery.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 21, 1917.
    Ellis & Lewis and Bluim & Teed, for appellant.
    Albert Chandler, C. M. Clay Buntain and Clayton W. Mogg, for appellees.

      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 from a decree dismissing a hill of review for want of equity. The decree involved is one of divorce for desertion obtained by the then husband of complainant on service by publication. The learned chancellor before whom the case was tried made a very searching inquiry into all of the facts and circumstances involved in the divorce proceeding and called complainant to the witness stand and examined her as the court’s witness, allowing each of the parties to the litigation the latitude of cross-examination. While many errors are assigned on the record, the case really resolves itself into the pivotal one of absence of jurisdiction to enter the decree because, it is alleged, defendant was not served with process, either personally or by publication.

We have been furnished by counsel with a voluminous array of case law exceeding citations of more than one hundred sixty authorities, including the Bible, Magna Charta, the State and federal constitutions, and in scope covering many jurisdictions, which, to use a sententious remark of the late Mr. Justice Adams in Salomon v. Estate of Wincox, 104 Ill. App. 277, have about as much relation to the decision of this case as “The Lay of the Last Minstrel.”

The bill of review in this case was instituted by complainant after the death of her former husband, and the administrators of his estate, one here and another in St. Louis, Missouri, were made parties defendant. The Cook county administration failed to procure assets, while the St. Louis administration disclosed an estate of something less than $10,000.

To contend that complainant did not have notice and knowledge of the divorce suit from its commencement to its final determination would, in view of the record, be an affront to credulity. The procedure and the decree as shown by complainant’s bill were regular. Complainant was proceeded against as a nonresident of the State of Illinois and as residing in the City of New York, that her then residence was at 164 West 74th street, New York City. A copy of the notice published in conformity with -the affidavit of nonresidence was mailed, as provided by statute, to complainant, Florence Hazard, 164 West 74th street, New York City, State of New York. Another copy was mailed to complainant at New York City without any particular notation of address. The law does not require proof that complainant received a copy of the notice mailed. The clerk certified as to the mailing and we think that tin’s was a sufficient compliance with the statute. Were it otherwise it might be impossible to prove that the complainant received the notice sent by mail unless forwarded by registered mail, for which the statute makes no provision. The default record in evidence proved the sending of the notice by mail to complainant and a compliance with the statute in this regard, and the decree recites that complainant had notice of the pend-ency of the suit by publication according to the statute and that the default of complainant was taken and the bill taken as confessed against her. Then the court specifically finds that the husband, William Hazard, was an actual resident of Cook county at the time the bill was filed and had been a resident of the State of Illinois for more than one year next before the filing of the bill, and then finds the fact that subsequent to the marriage complainant, Florence Hazard, had been guilty of wilfully deserting and absenting herself from her husband without any reasonable cause, for the space of two years, as charged in the bill of complaint, and a decree dissolving the marriage followed. The decree was entered December 3, 1910, and William Hazard, complainant in the divorce bill, died intestate on the 3rd of February, 1914.

. Complainant averred in her bill that she never either before or since the entering of the divorce decree had been summoned or served with a copy of the bill of complaint or received any notice by mail of the pendency of the suit as required by statute. This averment is not true, and counsel in a way abandoned the contention that complainant had no notice of the suit or of the trial of the case, but narrowed the contention to one that she .did not receive a copy of the notice mailed to the address at 164 West 74th street,- New York City. It appears from the admissions of complainant that at or about the time when the notice was mailed she did stay at 164 West 74th street, New York City. Her own testimony develops the fact that she employed counsel, a Mr. May in New York City, to come to Chicago and arrange with her husband about the settlement of their marital differences; that May came to Chicago and made such arrangements with the counsel of her husband and that she paid May $300 for his services. After the divorce, complainant’s husband made a financial settlement with complainant, by which she received money and a, large quantity of household furniture. Complainant wrote to her husband on February 7, 1911, saying: “I agree to the proposition of dividing the cash value of the policies ($775.20). Any papers that I must sign can be forwarded. Florence M. Hazard, 175 W. 78 th street, New York City.” Complainant also accepted in her own handwriting service of a notice to take depositions which were subsequently taken and used on the hearing of the divorce case; so she had actual knowledge not only that the suit was pending, but that the depositions were to be taken to be used by her husband on the trial.

If complainant had any purpose of disputing her husband’s claim to a divorce from her on the grounds stated in his bill, she had every opportunity to make such defense at the time; and she should not have permitted the matter to have proceeded to decree and to the financial settlement which was subsequently made between them if she had any purpose of contesting the divorce suit .thereafter.

While it is true that a decree procured on service by publication is in its nature nisi until the expiration of three years, at the expiration of such three years it becomes absolute. Within these three years and during the lifetime of complainant’s husband, if she for any reason were dissatisfied with the decree or the settlement, she could have appeared and demánded a hearing. What with the implication of service raised by the clerk’s certificate of mailing the notice of publication to her in New York City, coupled with the further fact that she had actual knowledge of the pend-ency of the suit and negotiated in relation thereto and made a settlement which she indicated was satisfactory to her at the time, she is estopped after the death of her late husband from challenging the truth of these surface appearances.

While complainant in the first instance denied knowledge of the pendency of the divorce suit, she subsequently, under an examination by the chancellor, admitted that she had such knowledge. Her denial at no time rested upon anything more than the technical one that she had not received the notice mailed to her by the clerk of the court at 164 West 74th street, New York City. This is evidently a subterfuge on her part in an attempt to avoid the consequences of her knowledge of all that had taken place. It is patent from all the evidence that the divorce was by arrangement between the parties, complainant being represented by Mr. May as her counsel, who came to Chicago and ascertained, we will assume, every fact material to be known to the adjustment of the marital differences between his client and her husband.

The evidence develops that complainant became dissatisfied with her husband by reason of his financial reverse of fortune. He had been in the receipt of $3,000 a year, and was reduced to a salary of $100 per month. It seems that complainant’s husband was indebted to his mother and another relative at the time of the financial settlement and that some little time prior to the death of complainant’s husband he inherited property from his mother and from one Elliott C. Jewett, and it is this fund which provokes this proceeding. The financial issue is really the only practical one involved and is the inspiring reason prompting complainant to seek to set aside the decree of divorce of which she had actual knowledge from the time it was rendered. Furthermore, it is fairly inferable from the testimony that complainant received a copy of the decree of divorce a very short time after that decree was entered.

Complainant is in a court of conscience. She is appealing for the adjustment of rights resting in conscience and to such she must be strictly held.

Complainant by this proceeding seeks a review of errors alleged in the divorce decree. Were that decree before ns by writ of error, the same questions would arise as in-the bill of review case. We think that Mallory v. Mallory, 160 Ill. App. 417, is very much in point both on fact and principle. The court there said: “We are of opinion that it would be inequitable and unjust to permit plaintiff in error to now prosecute this writ of error to a reversal of the decree for the sole purpose of permitting him to procure a share of the estate.” This observation is equally applicable to Mrs. Hazard’s case. While it is true Mrs. Hazard did not appear in court in her divorce suit, as a matter of fact she was represented in the suit by her counsel from New York, and the terms of the decree were agreed to by him for her and she ratified his actions in this regard in toto. The decree is therefore in the nature of a consent decree.

We are also of the opinion that complainant is barred from contesting the divorce decree by reason of laches, she having with full knowledge of all the circumstances acquiesced and agreed with all that was done, accepting the financial settlement and waiting until her husband had been dead nearly a year and more than four year's after the'entry of the decree, all of which shows a lack of diligence which a court of equity will not sanction.

Furthermore, the rights of innocent third parties have intervened, namely, the heirs of William Hazard. There is- no explainable reason for such a delay. In Maher v. Title Guarantee & Trust Co., 95 Ill. App. 365, which is a similar case, where a party with knowledge of the proceedings and of the decree of divorce took a sum of money agreed upon, it was held that delay alone, unless satisfactorily explained, would bar the right of attack.

An implication of laches arises from conditions which are not in dispute in this case. -None of these has complainant by any averment in her bill attempted to excuse.

Complainant also predicates lack of jurisdiction of the court to enter the divorce decree upon the fact that but one witness was heard orally, the rest of the witnesses being heard by deposition; that such a hearing does not fulfil the statutory requirement that witnesses shall be examined in open court; and Suesemilch v. Suesemilch, 43 Ill. App. 573, is the only case cited in which any reference so narrow can be found, and in that case the court said: “We do not wish to be understood as indicating that depositions may not also be received. In the present case we pass merely upon the question presented, as stated in this opinion.”

In the Suesemilch case, supra, the decree was entered upon the oral examination of one witness and the deposition of another. With all due respect to the decision, we are unable to concur in its reasoning. The purpose of the Act of 1874 was not to compel all the witnesses to be examined in open court, but to prevent a default divorce cause from being referred to a master in chancery. A witness heard by deposition is as much heard in open court as is one who appears in person before the court. In contemplation of law the witness in the deposition is before the court, and equal effect is to be accorded to the testimony of witnesses produced by deposition as to those produced in open court and testifying viva voce; and the tests regarding the weight and character of such evidence are the same.

The demands of complainant are inequitable. The court entered the divorce decree with jurisdiction of the parties and the subject-matter. That jurisdiction complainant for four years allowed to go unchallenged, and made no move to have the decree disturbed until after her husband’s death. The doctrine of laches is a sufficient answer to complainant’s cause.

The learned chancellor did not err in dismissing the bill for want of equity, and the decree of the Circuit Court is affirmed.

Affirmed.


author: Mr. Presiding Justice McSurely

text:
    Josef Harovsky, Appellee, v. Chicago City Railway Company and United States Express Company, on appeal of Chicago City Railway Company, Appellant.
    Gen. No. 22,850.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 28, 1917.
    Statement of the Case.
    Action for personal injuries by Josef Harovsky, plaintiff, against Chicago City Railway Company and United States Express Company, defendants. From a verdict and judgment against both defendants for $2,000, defendants appeal separately. For appeal by other defendant, see post, p. 571.
    Watson J. Ferry, for appellant; W. W. Gurley, J. R. Guilliams and B. F. Richolson, of counsel.
    David K. Tone and F. A. Rockhold, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Street railroads, § 131*—When evidence sufficient to show negligence in causing express wagon to strike pedestrian. In an action against a street railway company and an express company to recover for injuries to plaintiff, received while walking on a sidewalk, through a collision between a street car and an express wagon which caused the wagon to strike plaintiff, evidence examined and held sufficient to support a finding that the street railway company was guilty of negligence.

2. Street railroads, § 149 —when refusal of requested instruction in action for injuries to pedestrian is proper. In an action against a street railway company and an express company to recover for injuries to plaintiff who, while walking on the sidewalk, was struck by an express wagon which had collided with a street car, it is not error to refuse an instruction which is predicated upon a situation in which a plaintiff finds himself suddenly placed in a position of danger and which undertakes to state a defendant’s duty in such a situation.

3. Appeal and error, § 1565*—when modification of requested instruction not reversible error. It is not reversible error for the court to make an addition to a requested instruction which renders it less apt to mislead the jury.


text:
    Josef Harovsky, Appellee, v. Chicago City Railway Company and United States Express Company, on appeal of United States Express Company, Appellant.
    Gen. No. 22,897.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. .Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 28, 1917.
    Statement of the Case.
    Action for personal injuries by, Josef Harovsky, plaintiff, against the Chicago City Railway Company and United States Express Company, defendants. From a verdict and judgment against both defendants for $2,000, defendants appeal separately. For appeal by other defendant, see ante, p. 570.
    Abstract of the Decision.
    1. Negligence, § 187*—when evidence is sufficient to show negligence of express company and lack of contributory negligence of pedestrian struck by wagon. In an action against a street railway company and an express company to recover for injuries to plaintiff, received while walking on a sidewalk, through a collision between a street car ^,nd an express wagon which caused the wagon to strike plaintiff, evidence examined and held sufficient to support a finding that the express company was guilty of negligence and that plaintiff was free from contributory negligence.
    2. Negligence, § 240

      —when refusal of instruction on test of negligence of driver of express wagon injuring pedestrian is proper. In an action against a street railway company and an express company to recover for personal injuries to plaintiff, received while he was walking on a sidewalk, through a collision between a street car and an express wagon which caused the wagon to strike plaintiff, it is not error to refuse an instruction making the test of the driver’s negligence whether or not he had knowledge that the plaintiff, on the sidewalk, might be injured.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and C. B. Fullerton, of counsel.
    David K. Tone and F. A. Rockhold, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Barbara Borkowsky, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,935.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Damages, § 110

      —when verdict for personal injuries is excessive. In an action by a passenger for injuries alleged to have been received by the starting of the car, evidence held insufficient to sustain a verdict for $3,500 for bruises on the head and impairment of vision, alleged to be due to the accident.
    2. Appeal and ebbob, § 1401*—when verdict intended to compensate for injuries not causally related to accident witl not he sustained. In an action for personal injuries, the court will not, on appeal, permit a verdict to stand which was manifestly intended to compensate for injuries, the causal relation of which to the accident is not sufficiently shown.
    Appeal from the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed May 28, 1917.
    Statement of the Case.
    Action by Barbara Borkowsky, plaintiff, against the Chicago City Railway Company, defendant, to recover for a breach of contract to transport her property. From a verdict and judgment of $3,500 for plaintiff, defendant appeals.
    Warren D. Bartholomew and Charles Le Roy Brown, for appellant; John R. Guilliams, of counsel.
    John W. Leedle, for appellee; Koch, Leedle & Rapp, 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. Presiding Justice McSurely

delivered the opinion of the court.

3. Damages, § 188*—when evidence insufficient to show that impairment of vision was due to accident. In an action for personal injuries alleged to have been received through the starting of defendant’s car as plaintiff was alighting, evidence held insufficient to show that the impairment of vision complained of was due to the accident.

4. Appeal and error, § 1474 —lohen admission of conjecture and speculation of expert witness is reversible error. In an action for personal injuries, the admission of conjecture and speculation of a medical witness as to what might produce or cause the condition found by him in plaintiff, is reversible error.

5. Evidence, § 410*-—what opinion of medical witness may not be given. In an action for personal injuries, it is error to permit a medical witness to testify that plaintiff would eventually become blind, though how long thereafter he could not state, as such an opinion is merely speculative.

6. Evidence, § 368*-—when witness may not testify as to subjective conditions. In an action for personal injuries it is error to permit a witness to testify as to subjective conditions of plaintiff.


text:
    J. Bortuska, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 22,957.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed May 28, 1917.
    Statement of the Case.
    Action ¡by J. Bortuska, plaintiff, against the Chicago Railways Company, defendant, to recover for personal injuries. From a verdict and judgment for plaintiff for $4,300, defendant appeals.

      Abstract of the Decision.
    Street railroads, § 98

      —when person driving behind street car and upon parallel trade is guilty of contributory negligence. One who drives behind a street car at a street intersection upon a parallel track and is struck by a car approaching from the opposite direction on such parallel track is guilty of contributory negligence, where the evidence shows that he saw the car approaching and was also warned by other persons and by signals.
    Frank L. Kriete, for appellant; W. W. Gurley, J. R. Guilliams and Charles L. Mahony, of counsel.
    Haight, Brown, Haight & Harris, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Catherine Doran, Appellee, v. Chicago Railways Company (Impleaded with Ashland Auto Garage), Appellant.
    Gen. No. 22,961.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William Henimore Cooper, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed May 28, 1917.
    Statement of the Case.
    Action by Catherine Doran, plaintiff, against the Chicago Railways Company and Ashland Auto Garage, a corporation, defendants, to recover for personal injuries. From a verdict and judgment for plaintiff for $3,000, defendant Chicago Railways Company appeals.

      Abstract of the Decision.
    Street railroads, § 131
      —when evidence sufficient to show that injury to passenger in automobile colliding With, street car was due to negligence of driver. Evidence in an action to recover for personal injuries received through a collision between a street car and an automobile in which plaintiff was riding as a passenger, examined and held to show that the accident was caused wholly by the negligence of the driver of the automobile.
    William H. Symmes and Frank L. Kriete, for appellant; J. R. Guilliams and Robert J. Slater, of counsel.
    Joseph P. Mahoney, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Edward Atlas, by Samuel Atlas, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 22,964.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed May 28, 1917.
    Rehearing denied June 11, 1917.
    Statement of the Case.
    Action by Edward Atlas, a minor, by Samuel Atlas, next friend, plaintiff, against the Chicago Railways Company, defendant, to recover for personal injuries. From a verdict and judgment for plaintiff for $554,' defendant appeals.

      Abstract of the Decision.
    1. Street railroads, § 131*—when evidence shows no negligence in operation of car striking child. Evidence in an action to recover for personal injuries to a child struck by a street car in crossing the track, examined and held to show that defendant was guilty of no negligence in the management and operation of its car.
    2. Street railroads, § 66*—when motorman not negligent in injuring person suddenly appearing on track. Where a pedestrian unexpectedly appears upon a street car track before an approaching car, it is the motorman’s duty to do all that he reasonably can to avoid an accident, and, if he does this, it cannot be said that the accident was caused by negligence on his part.
    Frank L. Kriete, for appellant; J. R. Guilliams and Warren D. Bartholomew, of counsel.
    Howard Ames, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Anna Francesetti, Appellee, v. Spring Valley Coal Company, Appellant.
    Gen. No. 22,863.
    1. Negligence, § 45

      —when evidence is sufficient to show that coal dump pile and machinery constitutes an attractive nuisance. In an action against a coal mining company to recover for personal injuries to a child which were alleged to have been caused by an attractive nuisance on its premises, consisting of a dump pile and machinery used in connection with the dump, where the evidence shows that the place where the machinery was operated was open and, to defendant’s knowledge, frequented by children; that it could have been protected, in the exercise of reasonable care, so as to exclude accidents without interfering with its practical operation; that defendant knew that, unprotected, the place was one of danger to children who had not attained years of discretion; that when the machinery was in motion it was attractive to children and to the exclusion of other similar places not having operative machinery, the evidence warrants a finding that the pile and machinery constituted an attractive nuisance.
    2. Negligence, § 194*—when question for jury whether place is attractive nuisance. In an action to recover for injuries to a child alleged to have been caused by an attractive nuisance, the question whether the place of the accident was an attractive nuisance is for the jury.
    3. Negligence, § 45

      —when evidence sufficient to show that place constituting attractive nuisance could have been protected. In an action to recover for injuries to a child alleged to have been caused by an attractive nuisance, evidence held to support a finding that the place of the accident might have been readily protected, by the exercise of reasonable care, so as to exclude accidents and not to warrant a finding that leaving the place unguarded and unpro-, tected was the only practical method of operation.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed May 28, 1917.
    Mastín & Sherlock, for appellant; Frank Crozier, of counsel.
    George E. Gorman and Pollock, Rainey & Livingston, 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 topie and section number.

   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff, in an action for personal injuries, obtained a verdict for $15,000 and a judgment thereon against defendant, from which defendant appeals.

It is averred in the declaration that plaintiff lost her left arm a few inches below the shoulder, on the premises of defendant in the Village of Dalzell, Bureau county, Illinois. It is said that plaintiff was a trespasser upon the property of defendant when injured, unless it can be held as a matter of law that the occurrence falls within the doctrine of attractive nuisances.

It seems that at the time of the accident, August 6, 1907, plaintiff was a little girl living in the Village of Dalzell near the coal mine of defendant; that defendant conducted coal mining operations and owned a tract of land near the Village of Dalzell on which it prosecuted that business. The declaration avers, inter alia, that defendant had a certain overhead trolley with cars attached thereto, which were operated along, the overhead trolley by means of a revolving rope, pulleys and sprocket wheels, as a means of carrying rock and waste to the dumping ground,; that these were so arranged that cars attached to the trolley were moved from the mine opening up an incline to the dumping ground, where the cars were dumped and returned down the incline; that this place was located in proximity to a public highway, where numerous children were accustomed to pass in going to and returning from school; that there was a certain path from the highway to the mines which wsts used by children in reaching that part of defendant’s premises where the machinery was located; that such children were in the habit of going on the premises, which were uninclosed, for the purpose of amusement, to watch the conveyor while in motion, and to play on the refuse pile, which was attractive to children on account of the natural desire to run up and down an artificial hill thus created, slide and play thereon, and because the continued movement of the conveyor was attractive to children by reason of their love of motion other than their own locomotion. It is then averred that defendant in the exercise of reasonable care and prudence would have known that the artificial hill, cars, sprocket wheels, ropes, and other appliances used on the conveyor, the conveyor when,in operation, and the dumping ground itself, were attractive to children, and that children were in the habit of going to the premises to play about the same; that because of such attractions there existed an implied invitation to children to come upon the land of defendant and play thereon, and that by reason thereof the premises were a dangerous and attractive nuisance to children. It is then averred that plaintiff went upon the premises to play upon the rock pile and to pick up coal; that it was defendant’s duty to exercise reasonable care in the operation of its conveyor to see that the same was reasonably safe for persons about it, or provide reasonably safe means to warn or protect children from such dangers; that defendant neglected its duty in this regard and permitted the wheels, etc., to remain unguarded and unprotected, and failed to use any reasonably safe means to warn or protect children, by reason whereof plaintiff’s clothing, while she was in the exercise of reasonable care for her own safety and' while she was standing on the rock pile near the rope, caught in the conveyor so that she was drawn up to and against a certain wheel, mangling her arm, etc.

The sole question here for determination is, does the case fall within the doctrine of attractive nuisances, and defendant, in denial that it does, contends that the declaration states no cause of action; that the instructed verdict requested by defendant should have been granted, and that the verdict was contrary to the manifest weight of the evidence; and it being conceded that the facts of the occurence .are not in serious dispute, the whole question involved becomes primarily one of law.

It appears that the machinery of defendant attracted children to it; that there was adjoining the property of defendant another coal mining property similarly situated, but which lacked the attraction of machinery, and the evidence fairly shows that the children did not resort to the property where there was no machinery, hut to the property of defendant where the machinery was in operation; and it may be argued therefrom that this was the lure to the children which constituted an attractive nuisance.

It is further urged that plaintiff’s injuries did not flow from any trouble with the machinery, but that it was the wind which blew her clothing into the machinery which was the cause of the accident, and that there was nothing about that machinery with which children could play.

We think the evidence fairly establishes that defendant knew that children played in the vicinity of the revolving machinery, and therefrom it had notice of the dangers to which such children were exposed, and that it took no means to prevent accidents befalling such children. It is quite true that unless defendant can be condemned under the doctrine of attractive nuisance, then it owed no duty in the premises whatever. ■

The doctrine of attractive nuisance as expounded by our own Supreme Court is the law of this forum, notwithstanding decisions in conflict therewith may be encountered in other jurisdictions. We do not think the doctrine of attractive nuisance as defined in the so-called “turntable” cases need be extended to any greater lengths than pronounced in such decisions, but if the principle of these decisions is applicable by analogy to the facts of the instant case, then such case falls within the principle and the doctrine. Defendant contends that the doctrine of the so-called “turntable” cases is as announced in City of Pekin v. McMahon, 154 Ill. 141, in these words:

“In many, if not in all of the foregoing ‘turntable’ cases,, stress is laid upon the facts that the turntable was in a public or open and frequented place; that it was dangerous and left unfastened, and when in motion (i. e., put in motion by children) was attractive to children by reason of their love of motion ‘ by other means than their own locomotion’; and that the servants of the railroad companies knew, or had reason to believe, that it was attractive to children, ánd that children were in the habit of playing on or about it. The doctrine of the cases is that the child cannot be regarded as a voluntary trespasser, because he is induced to go upon the turntable by the defendant’s own conduct.”

Every essential of this quotation could be suitably paraphrazed to fit the case before us. The place where the machinery was operating was in an open, frequented place, a place frequented, to the knowledge of defendant, by the children of the village; defendant also knew that, unprotected, the place was one of danger to children who had not attained years of discretion; that when the machinery was in motion it was attractive to children, and in fact attracted the village children to the exclusion of all the other slack, rock and dump piles in the vicinity lacking operative machinery. Rost v. Parker Washington Co., 176 Ill. App. 245.

We think the evidence clearly justifies the conclusion that the' machinery and the rock pile combined were in fact an attractive nuisance within the reasoning of all the cases in this jurisdiction defining an attractive nuisance. Whether the place of the accident to plaintiff was an attractive nuisance was for the determination of the jury as a question of fact, and we think they might reasonably find from the evidence in the record that it was. Siddall v. Jansen, 168 Ill. 43. And they might further find, as we assume they did, that the place of danger might, by the exercise of reasonable care, have been readily protected so as to exclude accidents; and from the proofs we hardly think the jury could have fairly said that leaving thé place unguarded and unprotected was the only practical method which could have been pursued in operating the machinery.

The declaration stated a cause of action, the evidence in the record proves the essentials of the negligence charged, and that record being otherwise without error in procedure, the judgment of the Superior Court is affirmed.

Affirmed.


text:
    Emma Victoria Ehrenstrom, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,953.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 97

      —when person crossing track in front of car is guilty of contributory negligence. In an action to recover for the death of one struck by a street car in crossing the track, the evidence showed that plaintiff’s intestate, while looking in another direction, stepped on the track when the car was six or eight feet away and approaching at a good rate of speed, and that its gong was sounding and it was lighted and its headlight was burning. It did not appear that he looked for the car or that his view of it was obstructed, but it did appear that, if he had looked, he must have seen it. The evidence further showed that the speed of the car was not excessive and plaintiff admitted that defendant used all efforts to avoid the injury after the peril was discovered. Held, that plaintiff’s intestate was not in the exercise of ordinary care, but was guilty of such contributory negligence as to preclude a recovery.

      Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed May 28, 1917.
    Rehearing denied June 11, 1917.
    Statement of the Case.
    Action by Emma Victoria Ehrenstrom, administratrix of the estate of Frank Ehrenstrom, deceased, plaintiff, against the Chicago City Railway Company, defendant, to recover for negligently causing the death of plaintiff’s intestate. From a verdict and judgment for plaintiff for $8,000, defendant appeals.
    John E. Kehoe and Charles Le Roy Brown, for appellant; John R. Guilliams, of counsel.
    William J. Pringle and Erwin Terwilliger, Jr., 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.

2. Appeal and ebbor, § 1810 —when case reversed with finding of fact. The power of the Appellate Court to reverse a judgment of the trial court with a finding of fact is not confined to cases in which the latter might properly direct a verdict.


author: Mr. Presiding Justice Barnes

text:
    C. E. Malm and L. M. Malm, Defendants in Error, v. Harry I. Schwimmer, Plaintiff in Error.
    Gen. No. 21,766.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Action by G. E. Malm and L. M. Malm, plaintiffs, against Harry I. Schwimmer, defendant, on a lease. There was a judgment by confession whereupon defendant moved to set it aside and for permission to appear and defend on the merits. To reverse an order denying this motion, defendant prosecutes this writ of error.

      Abstract of the Decision.
    Landlord and tenant, § 330

      —when affidavit of defense in support of motion to set aside judgment 5y confession on tease is sufficient. Where the purport of the facts set forth in an affidavit in support of a motion to set aside a judgment entered by confession on a lease and to be permitted to appear and defend on the merits is that the parties intended that the lease should not take effect on its delivery, but that the delivery was .conditional upon the doing of something by the lessors before it should take effect, such affidavit tends to show a good defense which the court should have permitted defendant to present.
    William Gillespie, for plaintiff in error.
    No appearance for defendants in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Mary Held, Appellee, v. Bankers Insurance Corporation, Appellant.
    Gen. No. 22,320.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 29, 1917.
    Rehearing denied June 7, 1917.
    Statement of the Case.
    Action by Mary Held, plaintiff, against the Bankers Insurance Corporation, defendant, to recover on a benefit certificate issued by a Nebraska society, the business of which was “taken over” by an insurance corporation which was thereafter consolidated with defendant. Defendant having averred a tender of $994.94 and plaintiff’s refusal to accept it in full satisfaction of her claim, the court entered judgment for that sum and costs, which was refused as full satisfaction of claim, and the cause having proceeded to trial upon the issues raised by the additional averments of the affidavit of merits, the court directed a verdict for plaintiff for $2,164.16, and from the judgment entered thereon, defendant appeals. .
    Abstract of the Decision.
    1. Appeal and error, § 1303*—when not assumed that sufficient evidence -was heard to support directed verdict. On appeal from a directed verdict for plaintiff in an action to recover on a benefit certificate of another insurance society, the liability under which was alleged to have been assumed by defendant insurance society, the rule that the Appellate Court will assume ^that sufficient evidence was heard to support the verdict, where the court’s certificate to the bill of exceptions does not state that it contains all of the evidence, does not control where the record contains some evidence tending to support one of the defenses, and the evidence in support of plaintiff’s claim of assumption of liability by the defendant is too meager to enable the Appellate Court to find that the alleged assumption was not in excess of defendant’s powers or that a new application and examination of defendant could be dispensed with.
    2. Insurance, § 898

      —when evidence is insufficient to show assumption of benefit certificate by another company. In an action on a benefit certificate, where defendant’s liability is predicated upon its assumption of the certificate, and the principal reliance of plaintiff to support such contention is the acceptance by defendant of dues and assessments from the insured and the claim that the defendant had “consolidated” with another insurance company which had "taken over” the business of the insurer which issued the certificate, but no showing as to the arrangement or method of such alleged assumption is made, there is not sufficient evidence to establish it.

      Albert J. W. Appell, for appellant.
    Robert J. Folonie, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Insurance—when reinsurance contract is ultra vires. A reinsurance contract, whereby one fraternal beneficiary society undertakes to assume and agrees to pay. the benefits stipulated in the certificate of another, is ultra vires and not enforceable.


text:
    Michael Bottigliero and Mary Bottigliero, Appellees, v. Morris Zeidman and Minnie Zeidman, Appellants.
    Gen. No. 22,337.
    (Not to foe reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1917.
    Rehearing denied June 8, 1917.
    Statement of the Case.
    Bill by Michael Bottigliero and Mary Bottigliero, complainants, against Morris Zeidman and Minnie Zeidman, defendants, for the reformation of a written contract for the exchange of land, for damages for failure of defendants to perform after complainants’ tender of performance and for cancellation of a note given to secure performance. Defendants filed a cross-bill alleging a breach of contract by complainants and an offer and readiness for performance on their part and, except as to the claim for reformation of the contract, sought the same relief as that sought by complainants. The decree found that there was mutual mistake in designating the street number of the property and that complainants suffered damages from the breach of contract to the amount of $787.50, exclusive of solicitors’ fees and expenses of the suit, and ordered the cancellation of the judgment note for $1,000 signed by complainants, and that the judgment note for the same amount signed by défendants and given to secure performance should be surrendered on the payment of the damages. From such decree, defendants appeal.
    Abstract of the Decision.
    1. Appeal and ebrok, § 389

      —when objection that complainant has an adequate remedy at law deemed waived on appeal. On a bill for reformation of a contract for the exchange of land, for damages for failure to perform and for the cancellation of a note given to secure performance, where defendants, by cross-bill, seek the same relief, except the reformation of the contract, and make no objection to complainants’ right to equitable relief in the lower court, they will be deemed to have waived a contention, first raised on appeal, that complainants had an adequate remedy at law.
    2. Equity, § 23*—when jurisdiction retained on bill for reformation of contract to exchange land. Where, on a bill for reformation of a contract for the exchange of land, defendants concede that a reformation on the ground of mutual mistake is a matter of equitable jurisdiction and the court properly finds that there was such mistake, the court may properly retain jurisdiction for all purposes including the assessment of damages.
    3. Reformation oe instruments—mutual mistake as question for court. On a bill for the reformation of a contract for the exchange of land on the ground of mutual mistake, it is for the court to determine whether or not there was.such mistake.
    4. Appeal and error, § 1394*—when findings in equity case not disturbed. On appeal from a decree on a bill for the reformation of a contract for the exchange of land, the decree will not be disturbed on the ground of the insufficiency of the evidence to warrant the findings unless the findings of fact are clearly and palpably wrong.

      Samuel B. Hill, for appellants.
    Thomas B. Lantry, for appellees.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

5. Appeal and ebrob, § 1301*—when presumed that evidence was sufficient to support findings in decree. On appeal from a decree where it is stated in the court’s certificate that all of the evidence heard was not preserved, it will be presumed that there was sufficient evidence to support the specific findings of fact recited in the decree, and points based on hypotheses of fact different from the chancellor’s findings will not be considered.

6. Appeal and erbor, § 1236 —when defendants estopped to raise question of insufficiency of proof relating to uncontested allegations in bill. Where, on the hearing on a bill, counsel for defendants expressly admit all save one of its allegations and the court directs that the evidence be confined to that issue, there is no necessity of proving the other allegations, and, on appeal, defendants are estopped to raise the question of the insufficiency of the proof relating to the uncontested allegations.

7. Appeal and ebbob, § 438*—when claim of variance not considered. A claim of variance first urged in a petition for rehearing and not during the trial will not be considered on appeal.

8. Appeal and ebrob, § 726*—when finding of fact in decree cannot be impeached. On appeal, findings of fact in the decree cannot be impeached unless all of the evidence heard on the trial is preserved in the record.

9. Appeal and ebrob, § 1236*—when counsel for appellants precluded from urging that allowance of solicitors’ fees was erroneous. Where the record on appeal from a decree shows that counsel for appellants expressly stated that he had no objection to a draft of the decree which included the allowance of solicitors’ fees, appellants cannot urge such allowance as error.

10. Exchange op property, § 9*—what is measure of damages for breach of contract for. On a bill for the reformation of a contract for the exchange of land and for damages for failure to perform, the measure of damages is the difference between the agreed price of the properties and their market value at the time of the breach.

11. Costs, § 73*—when cost of additional abstract taxed against appellants. On appeal, where appellants do not submit a sufficiently full and fair abstract for a proper consideration of the points urged and the additional abstract is unnecessarily full, a part thereof will be taxed against appellants as additional costs.


text:
    Joseph J. Sullivan, Appellee, v. A. H. Andrews Company, Appellant.
    Gen. No. 22,361.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 66

      -—when burden of proving contract for commissions is on plaintiff. In an action to recover commissions on the sale of goods under an oral contract, the burden of proving the contract under which he claims is on plaintiff.
    2. Evidence, § 475*—what does not constitute preponderance of. In an action to recover commissions under an oral contract where the only persons having knowledge of the terms of the contract are plaintiff and defendant’s agent, with whom it is claimed to have been made, and their evidence conflicts, held that a meeting of minds as to the terms ahd the preponderance of the evidence in plaintiff’s favor were doubtful.

      Appeal from the County Court of Cook county; the Hon. Henry B. Eaton, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Action by Joseph J. Sullivan, plaintiff, against the A. H. Andrews Company, a corporation, defendant, to recover a commission on the sale of theater chairs under an oral contract. Plaintiff claimed that he was to have any excess over the catalogue price, and defendant that the sale was “f. o. b.” the factory and that the price was to be net to it and did not include the cost of installing the chairs. - From a judgment for plaintiff, defendant appeals.
    Gregory & McNab, for appellant; Albert S. Long, of counsel.
    John C. Trainor, for appellee.

      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 Barnes

delivered the opinion of the court.

3. Appeal and ebbob, § 1772 —when case reversed because of conduct of counsel. In an action to recover on an oral contract in which the evidence as to the meeting of the minds is doubtful, and there is .a direct conflict of evidence between the only persons having knowledge of the terms of contract, a judgment for plaintiff will be reversed where his counsel persistently endeavored, in the face of adverse rulings by the court, to bring prejudicial matter before the jury, both in his examination of the witnesses and in his argument to the jury.


text:
    Minnie Miller, Defendant in Error, v. I. Lerner, Plaintiff in Error.
    Gen. No. 22,369.
    (Not to.be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Couetney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed May 29, 1917.
    Statement of the Case..
    Action by Minnie Miller, plaintiff, against I. Lerner, defendant, to recover rent under a lease. To reverse a judgment for plaintiff, defendant prosecutes a writ of error.
    Albert Martin, for plaintiff in error; Melville R. Adams, of counsel.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

Landlord and tenant, § 93 —when tenant accepting unsigned written lease may not claim that tenancy is from month to month. Where there is an arrangement between a landlord and a tenant in possession of the premises that the latter will rent the premises under a written lease for a year from a certain date at a specified rental and he remains in possession after the commencement of the term, paying the rent agreed upon in the new lease without objecting to its terms, such tenant cannot claim that the lease was from month to month, although the written lease was not signed by him.


text:
    George Ryan, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,378.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed and remanded.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Action by George Ryan, plaintiff, against the Chicago City Railway Company, defendant, to recover for injuries sustained by a collision with defendant’s street car while driving across its track at a street intersection. From judgment for plaintiff on a verdict for $3,000, defendant appeals.
    Busby, Weber & Miller, B. F. Richolson and Arthur J. Donovan, for appellant; John R. Guilliams, of counsel.
    Thurman, Hume & Kennedy, for appellee.

      Abstract of the Decision.
    1. Damages, § 115*—when verdict for temporary injuries is excessive. In an action for personal injuries, where the only injuries shown are a broken tooth, superficial cuts and bruises which healed in about two weeks, two of them requiring one stitch each, and an injury to the nose, the exact nature and duration of which was not shown, a verdict for $3,000 is excessive.
    2. Damages, § 206

      —when instruction is erroneous as not being based upon evidence. In an action for personal injuries, the declaration in which alleged that by reason of the injuries plaintiff had been prevented from performing his usual work and business and in the future would be unfit and unable to perform it, and that he had paid and become liable to pay large sums for medical attention, nursing, care and medicine, it is error to instruct the jury that they may consider, in estimating plaintiff’s damages, “the effect, if any, shown by the evidence of the injury upon the plaintiff’s * * * ability to labor,” and that “in the assessment the jury must take into consideration only such elements of damage as have been alleged in the declaration, and which have been established by a preponderance of the evidence,” where there was no evidence as to his earning capacity or wages nor as to his medical and hospital expenses, but merely that he was confined to the hospital for a time, had medical attention, and tending to show that he was out of work at least six or eight weeks.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Mary Roberts, Appellee, v. Chicago City Railway Company, Appellant.

    Gen. No. 22,387.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Instructions, § 25

      —when not error to refuse to direct jury to disregard faulty counts. Where the declaration in an action for personal injuries consists of four counts, it is not error to refuse to direct the jury to disregard three of the counts, even though the evidence did not tend to sustain them, if it sustained the remaining count.
    2. Carriers, § 480*—when question as to excessive speed of oar is for jury. In an action to recover for personal injuries through being thrown from a moving street car, the question as to whether the speed of the car at the time of the accident was excessive is for the jury, where the evidence in regard thereto is conflicting.

      Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed on remittitur.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Action by Mary Roberts, plaintiff, against the Chicago City Railway Company, defendant, to recover for personal injuries alleged to have been received through having been thrown from defendant’s street car while a passenger thereon. From a verdict and judgment for $2,000 for plaintiff, defendant appeals.
    Franklin B. Hussey and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Longenecker & Heise, for appellee.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Carriers, § 480 —when question as to due care of passenger is for jury. In an action for personal injuries through being thrown from a moving street car, the question as to whether plaintiff was exercising due care is for the jury, where the evidence in regard thereto is conflicting.

4. Damages, § 114*—when verdict for personal injuries is excessive. In an action for personal injuries, where the physical injuries testified to consisted mainly of bruises on various parts of the body without any breaking of bones, a cut over the eye requiring six stitches, one on the chin requiring one stitch, an injury to the right arm and right knee, a broken tooth, pains in various parts of the body, a threatened abortion, which was, however, successfully averted, and scars, not described as serious, and plaintiff was confined to her bed and under medical attention for about five or six weeks, and the evidence further tends to show that plaintiff attempted to enhance her damages in her testimony as to the value and loss of her services, judgment on a verdict for plaintiff for $2,000 will not be affirmed save on a remittitur of $500.


text:
    Edna Anderson, Appellee, v. E. Stanton Anderson, Appellant.
    Gen. No. 22,399.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. George Kebsten, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Bill for divorce by Edna Anderson, complainant, against E. Stanton Anderson, defendant. From an order committing defendant for contempt of court for refusal to pay $1,075 alimony entered therein, defendant appeals.

      Abstract of the Decision.
    Divorce, § 122

      —when order committing defendant for contempt of court for refusal to pay alimony will 6e reversed. Even though the record on appeal from an order committing a defendant for contempt of court in refusing to pay alimony fails to show that there was any petition or affidavit to support the rule to show cause and the failure to appear, in conformity with the usual practice, such irregularities are not ground for reversal if defendant was given an opportunity to appear and purge himself and evidence was heard to support the findings recited in the order of commitment, but where the record shows nothing whereon to predicate the order save the rule, the appearance and an undisposed of motion to quash the same, and further shows that defendant was discharged on his answer to another rule a few days before which set up facts tending to show that no alimony was due at that time, judgment on an order of commitment for the nonpayment of $1,075 will be reversed, where the decree allowed only $100 a month.
    Leslie H. Whipp, for appellant.
    Lloyd D. Heth, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Richard J. Cooney, Appellee, v. Robert M. Sweitzer, County Clerk of Cook County.
    Gen. No. 22,416.
    1. Parties, § 35*—when word “as” should he used where person is party in representative capacity. Ordinarily the proper pleading requires that when one is made a party in a representative capacity, the word “as” shall be used to connect his name with the term descriptive of such capacity.
    2. Pasties, § 35*—what description of party suing in representative capacity is sufficient. The character in which a party sues or is sued must be determined from the body of the pleading, and a substantial description is sufficient.
    3. Pasties, § 35

      —when petition of mandamus shows that relation of defendant to suit is in representative capacity. A petition for a writ of mandamus to compel S., “County Clerk of Cook County, Illinois,” to permit petitioner to inspect certain books described therein, which alleges that defendant is county clerk of such county; that by statute he has the care and custody of the county books and records in his office and that they shall be open to the inspection of all persons; that petitioner has requested permission to inspect certain of such records and defendant has refused; and which prays that a writ of mandamus be directed to said defendant S., “County Clerk of Cook County, Illinois,” commanding him forthwith to permit petitioner to inspect said books, sufficiently shows that the only relation of defendant to the suit is in his representative capacity, and it is not necessary to show that he is not sued in his individual capacity.
    4. Judgment, § 397*—when judgment read in light of pleadings and other parts of record. Where a judgment appears ambiguous in its form as to the capacity of a party to it, it will be read in the light of the pleadings and other parts of the record.
    5. Mandamus, § 172*—when judgment hinds defendant in representative capacity. A judgment awarding a peremptory writ of mandamus commanding one S., “County Clerk of Cook County, Illinois,” to permit petitioner to inspect certain books, held sufficiently clear, when read in the light of the pleadings and other parts of the record, to bind defendant in his representative capacity.
    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, 1916.
    Affirmed.
    Opinion filed May 29, 1917.

      Mayer, Meyer, Austrian & Platt, for appellant.
    Harry J. Standidge, John A. Verhoeven and Thomas E. Swanson, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an appeal from a judgment awarding a peremptory writ of mandamus commanding “Robert M. Sweitzer, County Clerk of Cook County, Illinois,” to permit the petitioner, appellee, to inspect certain books described in the petition for the writ. Appellant demurred generally and specially, and elected to abide by his demurrer on its being overruled, and contends in the main that the words “County Clerk” following the name Robert M. Sweitzer, both in the petition and the judgment, are merely descriptio personae, and, without the connective “as” preceding them, are ineffectual to make him a defendant in his official capacity to such cause of action.

From the averments of the petition it is manifest that it seeks the enforcement of an official duty against respondent in his capacity as county clerk. It alleges that he is the county clerk of Cook county; that by statute the county clerk has the care and custody of the county books and records in his office and that they shall be open to the inspection of all persons; that petitioner requested permission of defendant to inspect certain of said records, etc., of which, under the law, he has the care and custody, and that defendant refused to comply with such request. After setting forth other matters immaterial to the question involved here, the petition prays for the issuance of a writ of mandamus directed “to the said defendant, Robert M. Sweitzer, County Clerk of Cook County, Illinois, commanding him” forthwith to permit the petitioner to inspect said books, etc.

Unquestionably good pleading generally requires that when one is made a party in a representative capacity the word “as” should be used to connect his name with the term descriptive of his representative character. It is a rule which makes for certainty, and is especially applicable “where a party occupies two relations to the subject-matter.” (Kinsella v. Cahn, 185 Ill. 208.) But the character in which a party sues or is sued must be determined from the body of the pleading, and a substantial description is sufficient. (31 Cyc. 99; Kinsella v. Cahn, supra.) It is apparent from the averments in the petition that this cause of action could be brought against respondent only in his official capacity. In the Kinsella case, supra, the complainants were described as “Ida Cahn and Simon Strauss, trustee under the trust deed, ’ ’ etc. The court said that as Strauss had no relation to the suit except as trustee there was no necessity for showing that he did not file the bill in some other relation or by some other right. And so here. As from the nature of the cause of action and averments in the petition it is clear that Sweitzer had no relation to the suit except as county clerk, no necessity existed for showing that he was not sued in his individual capacity.

In most of the eases where, in the absence of the connective “as,” descriptive words have been treated merely as descriptio personae, the cause of action or averments were such that the party to whom such words applied might occupy two different relations with reference to the subject-matter of the suit. But where that is not the case, as in the suit at bar, the reason for the rule which rejects such words as surplusage in the absence of the connective “ as ” does not obtain.

We have carefully examined the authorities cited by appellant where the descriptive words were rejected as surplusage, thus rendering the action one for or against a party personally, and without undertaking to analyze them, in this opinion think that they may be readily distinguished in principle or fact from the case at bar, and many of them on the ground of ambiguity in the pleading as to the capacity in which the party sued or was sued. The petition before us is not ambiguous. We think the demurrer was properly overruled.

We think too that the judgment is binding on appellant in his representative capacity. A judgment, to be sure, should be certain and definite or capable of being made so by proper construction. To that end it will be read in the light of the pleadings and other parts of the record if in its form it appears to be ambiguous as to the capacity of a party to it. (Gibbs v. Fuller, 66 N. C. 116; Commonwealth v. Ford, 29 Grat. [Va.] 683.) We find no reversible error in the record.

Affirmed.


text:
    E. L. Essley Machinery Company, Appellee, v. Dann Oil Cushion Spring Insert Company, Appellant.
    Gen. No. 22,418.
    (Hot to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Reversed with finding of fact.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Action by E. L. Essley Machinery Company, a corporation, plaintiff, against the Dann Oil Cushion Spring Insert Company, a corporation, defendant, on a quantum meruit, for merchandise sold and delivered. From a finding and judgment for plaintiff, defendant appeals,

      Abstract of the Decision.
    1. Appeal and erbob, § 1173*—what is subject of review where no propositions of law are submitted or rulings on law involved. On appeal from a judgment in a case tried by the court without a jury, where no propositions were submitted to be held as the law of the case and there were no rulings involving any controlling question of law, the only question for review is whether or not the findings and judgment of the court are contrary to the evidence.
    2. Assumpsit, Action op, § 89

      —when evidence sufficient to sustain judgment on quantum meruit for goods sold and delivered. In an action on a quantum meruit for merchandise sold and delivered, evidence examined and held insufficient to support a finding and judgment for plaintiff.
    3. Sales, § 276*—when machinery may be returned at any time within time limited. Where machinery is sold under a contract which provides for payment in sixty days and guarantees that it will work satisfactorily for one year and that, in case it is unsatisfactory, it may be returned at any time within the year, the purchaser may return it at any time within such stipulated period.
    4. Sales—when seller may not abandon contract although goods not paid for within time limit. The fact that machinery, which is sold under a contract providing for payment in sixty days and with the privilege of returning it at any time within a year if it is unsatisfactory, is not paid for in sixty days, does not entitle the seller to abandon the contract and sue on a quantum meruit, where the evidence shows that the machinery was unsatisfactory and the seller, within the year, agreed to come and get it.
    Frederic R. De Young, for appellant.
    Harry A. Biossat, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Presiding Justice

text:
    Bosley Brothers, Appellee, v. Lawndale Iron & Wire Works, Appellant.
    Gen. No. 22,457.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1173

      —what Questions of Taw not reviewable where no propositions of law are submitted. Where a case was tried by the court without a jury and no propositions of law were submitted, questions of law not arising on rulings on the evidence are not reviewable.
    2. Appeal and error, § 1414*—when finding of trial court not disturbed. In an action on a note, where the evidence whether certain other notes were delivered as payment of the note in suit or as collateral security therefor is conflicting, the trial court’s finding thereon will not be disturbed.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas Taylob, Jr., Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed May 29, 1917.
    Statement of the Case.
    Action on a note hy Bosley Brothers, a corporation, plaintiff, against the Lawndale Iron & Wire Works, a corporation, defendant. From a judgment for plaintiff for four hundred dollars, defendant appeals.
    Padorr & Rosenblatt, for appellant.
    Sonnenschein, Berkson & Fishell, for appellee.

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

   Mr. Presiding Justice

Barnes delivered the opinion of the court.