text:
    T. P. Hicks, Defendant in Error, v. C. B. Simons, Plaintiff in Error.
    Gen. No. 22,055.
    1. Landlord and tenant, § 73

       — when tenant vacating premises upon service of notice is liable for subsequently accruing rent. Where a lease provides that in case the lessee fails to pay the rent as provided by the lease, and the lessor serves a five-day notice, the lessee “expressly agrees that the serving of the said five-day notice shall not release lessee from the payment of all rent due or to become due under the terms of said lease, and said lessee hereby expressly agrees to pay the rent for the full term of said lease, notwithstanding the service of such five-day notice,” and the lessor serves a five-day notice that unless the rent is paid on or before a certain date, the lease will be “terminated under the terms of the said lease,” the lessee is not relieved from liability for rent subsequently accruing under the lease, even though he vacated the premises pursuant to the five-day notice and the lessor took possession.
    2. Landlord and tenant, § 330* — what does not affect power conferred by warrant to confess judgment in lease. That a warrant to confess judgment contained in a lease authorizes the confession of judgment for rent, while the money stipulated in the lease to be paid as rent ceased to be rent upon a breach of the lease and was converted into damages by the stipulation o'f the lease, does not affect the power conferred by the warrant.
    Error to the Municipal Court of Chicago; the Hon. Jambs C. Mastín, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    King, Bboweb & Hublbut, for plaintiff in error.
    Abeam L. Myebs, for defendant in error.

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

   Mr. Justice Taylor

delivered the opinion of the court.

The writ of error in this cause is prosecuted by the plaintiff in error C. B. Simons (hereinafter designated defendant), to reverse a judgment of the trial court which was entered in favor of the defendant in error, T. P. Hicks (hereinafter designated plaintiff),.for rent and attorney’s fees.

The plaintiff’s claim is based upon a cognovit and lease. The statement of claim of plaintiff sets forth that the plaintiff’s claim is for rent under a certain lease, dated April 7, 1913, whereby the plaintiff demised to defendant the premises therein described, for a term of one year, at an annual rental of $510, payable in monthly instalments of $42.50 each; that by virtue of said demise the sum of $182.50 is due as rent, being for part of the month of August and for the months of September, October, November and December, 1913, and January, 1914, and that $17 is due as reasonable attorney’s fees, as provided in said lease. The affidavit sets forth that there is due to the plaintiff from defendant $182.50. A copy of the lease is attached to the statement of claim. Thé" lease is dated April 7, 1913, and was made between T. P. Hicks, lessor, and C. B. Simons, lessee, and recites that the lessor demised flat No. 4, fourth floor, No. 3825 Ellis avenue, Chicago, to be occupied as a private residence from May 1, 1913, until the last day of April, 1914; that the lessee agrees to pay as rent the sum of $510, payable in monthly instalments of $42.50 in advance, on the first day of each and every month of said term.

On June 5, 1914, the trial judge entered judgment in favor of the plaintiff for $199.50 and costs.

On February 27, 1915, an order was entered which recited that a motion of the defendant (that the judgment by confession of June 5, 1914, be vacated and set aside) was set for hearing on March 13, 1915.

. On September 20,1915, an order was entered overruling the motion of the defendant to set aside the judgment.

In considering the motion of the defendant to set aside the judgment by confession, there was presented to and the trial judge considered an affidavit of merits filed by the defendant.

The affidavit of merits of the defendant recited, inter alia, that the defendant had a good defense to all of the plaintiff’s demand, except the sum of $87.50, being rent at the rate of $42.50 per month for the months of September and October, 1913, and $2.50 of the rent of August, 1913; that on October 25,1913, the plaintiff served the defendant with a written notice, stating that there was then due from the defendant for rent $87.50; that the said notice recited that unless payment was made by October 30, 1913, defendant’s lease of said premises would be terminated under the terms of said lease; that the defendant did not pay any part of said money mentioned in said notice; that the plaintiff never withdrew said notice; that in pursuance of said notice the defendant on October 31, 1913, vacated said premises and the plaintiff thereupon took possession; that the defendant has never occupied said premises since; that by reason of the election of the plaintiff to terminate said lease on October 30, 1913, and the acceptance of said notification by the defendant and his removal from the premises, said lease became terminated on October 30, 1913, and no rent is due thereunder; that all of the money claimed by the plaintiff in excess of $87.50 is claimed upon the theory that the defendant owed the same for rent of the premises after defendant had vacated them; that no part of said excess of $87.50 is due from the defendant.

The error complained of by the defendant is that the trial judge did not vacate the judgment as to all in excess of $87.50; in other words, that the service of the written notice of October 25, 1913, and the vacation of the premises by the defendant terminated the lease as of the end of October, 1913, and that no rent, therefore, accrued for the subsequent months of November and December, 1913, and January, 1914.

It is provided in said lease as follows:

“In case lessee fails to pay the rent herein specified to be paid, at the time and in the manner herein provided, and said lessor serves a five-day notice, said lessee hereby expressly agrees that the serving of said five-day notice shall not release lessee from the payment of all rent due or to become due under the terms of said lease, and said lessee hereby expressly agrees to pay the rent for the full term of said léase notwithstanding the service of such five-day notice. ’ ’

The notice that was served upon the defendant was that if the rent was not paid “on or before the 30th of October, 1913, defendant’s lease of said premises would be terminated under the terms of-said lease.” Considering that the lease provides expressly that the serving of a five-day notice shall not release the lessee from the payment of rent to become due under the terms of the lease, and that the notice itself was to the effect that the defendant’s lease of said premises “will be terminated under the terms of said lease,” it is impossible to avoid the conclusion that the defendant, after the service of the five-day notice and after his vacation of the premises in October, 1913, still remained liable for rent accruing pursuant to the terms of the lease for the succeeding months of November, December and January. The case of Wm. J. Lemp Brewing Co. v. Lonergan, 72 Ill. App. 223, is instructive but not in point. In that case the notice served did not provide that the lease will be terminated “under the terms of said lease,” nor did the lessee in that case expressly agree that 'in case a five-day notice was served it should not release him from the payment due or to become due under the terms of the lease. In Jefferys v. Hart, 197 Ill. App. 514, this court said:

“Until an act is performed by the landlord in pursuance to said notice, which could be regarded as an election to consider the tenancy ended, the tenant has no right to vacate the premises.”

meaning, when the context is considered, that the service of the five-day notice does not of itself constitute a forfeiture of the lease. In the latter case the notice that was served did not provide, as in the instant case, that the “defendant’s lease of said premises will be terminated under the terms of said lease,” nor was there a provision in the lease expressly providing that the service of a five-day notice would not avoid liability for future rent.

Mr. Justice Magruder, in Orommes v. St. Paul Trust Co., 147 Ill. 634, said: “But in the cases where the rule has been laid down and enforced (possession ceasing, payment ceases), it does not appear that there was an express covenant or agreement on the part of tiie tenant that he would be liable for the rents accruing up to the end of the term, notwithstanding the re-entry of the landlord before the expiration of the term for default in the payment of rent. ’ ’

It is claimed by the defendant that in the Orommes case, supra, there was no notice of termination of the tenancy. The answer to that is there is no notice of a termination of tenancy in the instant case, save termination according to the terms of the'lease, and according to the terms of the lease the service of the five-day notice and the request for the rent therein contained did not relieve the defendant of his obligation to pay rent ‘1 due or to become due under the terms of said lease * * * for the full term of said lease, notwithstanding the service of such five-day notice.” We are therefore of the opinion that the service of the notice in question and the vacation of the premises did not avoid the liability of the defendant to pay the rent for the months of November and December, 1913, and January, 1914.

As to the contention that the money stipulated in the lease to be paid as rent ceased to be rent and was converted, into damages by the stipulation of the lease, so that the warrant to confess judgment for rent only did not confer power to confess judgment for damages, it makes no difference what the liability is called as long as it exists and is the result of the written obligation of the defendant. Central Investment Co. v. Melide, 267 Ill. 564. Finding no error in the record, the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    Marsh L. Brown & Company, Defendant in Error, v. Chicago, New York & Boston Refrigerator Company, Plaintiff in Error.
    Gen. No. 22,093.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers, § 98

       — what constitutes unreasonable delay in transit of freight. A delay of two days in the transit of a car of freight because of a defect in the car which was taken out of the train for repair is unreasonable where it is shown that the freight could have been transferred to- another car in two hours.
    2. Carriers, § 106* — when burden in on carrier to explain delay. Where a shipment of freight is delayed beyond the time usually required for transportation between such points, the burden is on the carrier to explain the delay and that it was not due to its negligence.
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Rehearing denied July 17, 1917.
    Statement of the Case.
    • Action by Marsh L. Brown & Company, a corporation, plaintiff, against the Chicago, New York & Boston Refrigerator Company, a corporation, defendant, to recover damages for injuries to freight. To reverse a judgment for plaintiff for $480 and costs, defendant prosecutes this writ of error.
    G. W. Kretzinger, Jr., and L. L. Smith, for plaintiff in error.
    Joseph M. Connery, for defendant in error.

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

   Mr. Justice Taylor

delivered the opinion of the court.

3. Carriers — when evidence shows no satisfactory explanation of delay in transportation. In an action against a carrier to recover for damages caused by an unreasonable delay in the transportation of freight, evidence held to show no satisfactory explanation for such delay.

4. Carriers — when evidence shows number of articles in shipment. In an action against a carrier to recover for injuries to certain articles of freight in shipment, the contention that the evidence does not show the number of such articles is not tenable, where the number is alleged in plaintiff’s statement of claim and is not denied by defendant and is otherwise shown.

5. Carriers — when contention that claim for loss was not timely made is without merit. In an action against a carrier for injuries to freight, defendant’s contention that plaintiff did not make a claim for loss in writing within four months as required by the bill of lading is not tenable where the making of such claim was not denied in the affidavit of defense and the point was not urged in the trial court.

6. Carriers, § 110* — what is measure of damages for unreasonable delay in shipment of freight. In an action to recover for damages caused by an unreasonable delay in the shipment of freight, the measure of damages is the difference between the market value of the freight when it should have arrived at its destination and its market value when it did arrive.


text:
    Talitha H. Kellner et al., Appellants, v. Emma Finkl et al., Appellees.
    Gen. No. 22,121.
    1. Partition, § 49

      - — when plea of pendency of prior action is good. A plea which states that a bill of complaint in a partition proceeding was filed prior to a bill of complaint by another which requested substantially similar relief as to substantially the same property and similar parties in the same court, and which shows that the first cause is being prosecuted with diligence and is pending and undetermined, is good.
    2. Pleading, § 123* — when plea deemed sufficient. Where the truth of matter averred in a plea is not denied and no replication is filed thereto on review, the plea will be considered sufficient and the rulings of the court thereon according to law.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Rehearing denied July 13, 1917.
    Wyman, Jurgens & Carpenter, for appellants.
    Holt, Cutting & Sidley, for Edna Paulina Wahl.
    Edgar L. Masters, for George L. Herbert.
    O’Donnell & O’Donnell, for appellees.

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

   Mr. Justice Taylor

delivered the opinion of the court.

Two partition suits having been begun, one after the other, on the same day, in the Superior Court, there has arisen the simple question whether the chancellor erred in ruling that the one that was begun first should take precedence.

The appellee, George L. Herbert, filed with the clerk of the Superior Court on May 15, 1915, his bill of complaint against the appellants and other defendants, which bill of complaint requested the partition of certain real estate. Later, on the same day, the appellants filed a bill of complaint against the appellee and others requesting a partition of substantially the same real estate. The two cases were docketed respectively as General Nos. 315,815 and 315,816.

To the bill of complaint (Gen. No. 315,816), pleas (substantially similar) were filed by George K. Schmidt, Charles J. Schmidt, trustees, Edna P. Wahl, individually and as guardian a cl litem, Emma Finkl, Jeanette Schoeller, Agatha Herbert, K. E. Herbert, George K. Schmidt, guardian of certain minors, and George L. Herbert, all of which pleas set up as a defense the prior commencement of the suit of George L. Herbert.

The plea of George L. Herbert, filed as aforesaid, on July 24, 1915, avers, inter alia, that he filed a bill of complaint on May 15, 1915, making defendant thereto all parties interested in the real estate described in the bill of complaint of appellants, and asked partition thereof, being the same relief prayed for in the bill of complaint of appellants; that the bill of complaint of appellee bore the' General No. 315,815; that the summons, which was returned to the sheriff of Cook county and filed in said cause, showed that eight of the defendants in said cause were served with said summons on May 15, 1915; that all of the defendants therein were served with process in time for the June term, 1915, more than ten days before the first day of the said June term; that all of the defendants to appellee’s bill of complaint, except three (who were complainants in appellants’ bill of complaint), filed their answers to appellee’s bill of complaint; that replications had been filed to said answers and that said cause, Gen. No. 315,815, was at issue except for certain exceptions and one demurrer, which are frivolous; that the former bill of complaint (Gen. .No. 315,815) is pending in the Superior Court, undetermined and undismissed.

The appellee, George L. Herbert, was served by appellants with a copy of the bill of complaint of appellants on May 17, 1915. That bill of eoniplaint bears the General No. 315,816.

On September 22, 1915, the chancellor entered an order, which is as follows:

1 ‘ This cause coming on to be heard upon the motions of the complainants to strike from the files the respective pleas in abatement filed herein by George K. Schmidt and Charles J. Schmidt as trustees, and of Edna Paulina Wahl, individually and as guardian ad litem of Ernest Wahl and George Wahl, minors, and of Kaspar Schmidt, George Schmidt, Edna Schmidt and Ernst Schmidt, and of George L. Herbert, and of Emma Finkl, Jeanette Schoeller, Agatha Herbert and Kate E. Herbert; and the court having heard the arguments of counsel in the premises, doth deny the several motions of the said complainants to strike said respective pleas from the files.
“Thereupon complainants move the court to set down for hearing as a matter of fact the said several pleas in abatement above mentioned, except the plea of the said defendant George L. Herbert, which motion is denied by the court.
“Thereupon, on motion of the said several defendants, It Is Ordered by the Court that said respective pleas be set down for argument; and upon such argument it is considered by the court that said pleas be allowed; wherefore the court doth Order, Adjudge and Decree that the said bill of complaint herein be dismissed and that the defendants go without day, etc.”

It is contended by appellants: (1) That a plea of a former suit pending is a plea in abatement and not permissible in partition proceedings; (2) that he is entitled on demand to a trial on the question of the fact raised by a plea in abatement; (3) that priority in service determines jurisdiction.

The Abatement Act (Revised Statutes), ch. 1, sec. 21 (J. & A. fí 21), reads as follows: “No plea in abatement shall be received in any suit for partition, nor shall such suit abate by the death of any tenant.”

In Monroe v. Millisen, 113 Ill. App. 157, a case in which the court refers to the record as very obscure, and where the second suit proceeded to a hearing and decree, it was held that a plea in abatement was improperly filed, asad that if it were considered as an answer, “in which capacity it was allowed to stand, it fails to aver such facts (and the proof established none beyond those averred) as constitute lis pendens or another suit pending.” The court further said:

“Service of summons had not been had on all parties named as defendants in the bill filed by plaintiff in error, Alice Monroe, at the time defendant in error filed his bill for partition of the same premises, and such former suit was therefore not lis pendens, or another suit pending in respect to the latter suit, requiring its dismissal.”

In the latter case, the court cites Grant v. Bennett, 96 Ill. 513 (which holds that as to the rights of third persons in a piece of real estate, “Us pendens begins from the date of the service and not from the filing of the bill”); Holbrook v. Ford, 153 Ill. 633 (which holds that “as there was no service of process * * * no lien, equitable or otherwise, should have been required”) ; and Allison v. Drake, 145 Ill. 500 (which holds that “a Us pendens begins where a bill is filed, from the service of summons and not before, and where there is no.service and the defendant does not appear, there is no lis pendens”).

All of the cases cited by Mr. Justice Baume, in Monroe v. Millizen, supra, are cases where it was necessary to determine the effect of an action or other proceeding in court upon rights acquired during its pendency. In the instant case, no question is presented relating to rights acquired by any third person after the filing of the bill of complaint of appellee, and before service of process on appellants. It is a contest between appellee and appellants as to which should be recognized by the court as having first legally requested the partition of certain property, and of which should the court take jurisdiction. The plea of the appellee alleges certain facts as to service on the defendants to appellee’s bill of complaint, and we may assume therefrom that the bill of complaint first filed was being prosecuted with diligence. As to Us pen-dens, courts have held that under certain circumstances it existed only after service; they have also held in certain cases where, for example, the statute of limitations is pleaded, that the statute is tolled from the time of the issuance of the writ. Such matters, hoyover, are not involved in the present case. The subject of lis pendens, although discussed at large, was not, as a subject, before the chancellor. The latter ruled, and only ruled, that a plea that stated that the bill of complaint of appellants was filed subsequently to the bill of complaint of appellee both requesting substantially the same relief as to similar property and parties and in the same court, was good. Of course in making that ruling he decided also that the statute in regard to pleas in abatement in partition suits should be interpreted rationally and not literally, and that in doing so it was inapplicable to the plea in this case.

Inasmuch as the plea of appellee shows that the bill of complaint of appellee was filed-first, and that the cause was being prosecuted with diligence, we are of the opinion that to countenance the contention of appellants as sound would not tend to the orderly administration of justice, but rather to conflict and confusion.

As to the errors assigned by appellants, which concerned the way in which the pleas were taken up and considered by the chancellor, inasmuch as appellants did not deny the truth of what was averred and did not file a replication thereto, we are of the opinion that the pleas were sufficient and the ruling of the court according to the law. Perry v. United States School Furniture Co., 232 Ill. 101. Finding no material error in the record, the judgment is affirmed.

Affirmed.


text:
    Adomas Rimkus, Defendant in Error, v. John M. Tananevicz, trading as Tananevicz Savings Bank, Plaintiff in Error.
    Gen. No. 22,131.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Statement of the Case.
    Action by Adomas Bimkus, plaintiff, against John M. Tananevicz, trading as Tananevicz Savings Bank, defendant, to recover money deposited with defendant. To reverse a judgment for $560 for plaintiff, defendant prosecutes this writ of error.
    Defendant sought to introduce evidence in regard to certain expenses incurred by it in defending certain lawsuits and as to the number of its employees who had attended the trials and the number of days they were in court, but the evidence was ruled out as incompetent. It also sought to show that plaintiff had lived in the same house as his brother and the woman by whom the brother’s passbook had been presented to defendant and who had received the money thereon; that he was intimately acquainted with both of them; that he knew his brother gave the passbook to her and that at the time she was pregnant; that she and the brother were engaged to be married and had gone to a church to arrange for marriage and had arranged for it; that three days after aiding his brother to withdraw his money without presenting his passbook it being claimed by such brother tó have been lost, he took the brother away. Such evidence was excluded as immaterial.
    Charles C. Bodenstab, for plaintiff in error.

      Abstract of the Decision.
    1. Banks and banking, § 117

       — what constitutes prima facie case in action to recover savings deposit. Where plaintiff, in an action to recover a savings deposit, alleges in his statement of claim the deposit of the sum with defendant under a certain hook account and this is not denied by defendant, he makes out a prima facie case and the burden of introducing evidence to prove that plaintiff is not entitled to recover on that account is then on defendant.
    2. Indemnity, § 2* — when bond is nullity. An indemnifying bond which does not name any one to whom the maker of the bond is bound is a nullity.
    3. Banks and banking, § 118a* — when evidence sufficient to support verdict for plaintiff in action to recover deposit. In an action to recover a savings deposit, evidence held sufficient to support a verdict for plaintiff though he was the only witness in his own behalf while six witnesses testified for defendant.
    4. Banks and banking, § 118* — when exclusion of evidence is proper. In an action to recover a savings deposit, rulings of the court in excluding certain evidence as incompetent and immaterial, held proper.
    5. Instructions, § 120* — when instruction properly refused. An instruction which recited matters and suggested findings in support of which the record contained no evidence, held properly refused.
    Litzinger, McGurn & Reid, for defendant in error.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    E. Knudsen, Defendant in Error, v. Harry Helmick, Plaintiff in Error.
    Gen. No. 22,160.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 13

      - — when statement of claim is sufficient. In an action in the Municipal Court of Chicago to recover money, collected by the defendant and withheld from plaintiff, a statement of claim which informs defendant that it is for rent for specified months, amounting to a specified sum, that it is for rents collected and wrongfully collected after the title to the property had been conveyed to plaintiff, sufficiently informs defendant of the nature of plaintiff’s claim.
    2. Municipal Court op Chicago, § 28* — when objection to statement of claim may not be raised. Objection to the sufficiency of the statement of claim in an action in the Municipal Court of Chicago cannot first be raised on appeal.
    3. Principal and agent, § 167* — when agent collecting rents is liable to third person. An agent to collect rents to whom notice is given, by notifying him through the person in charge of his office and conducting his business, that the property has been sold by his principal, cannot collect rents from the premises without being liable to such purchaser.

      Error to the Municipal Court of Chicago; the Hon. John Court-net, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Statement of the Case.
    Action by E. Knudsen, plaintiff, against Harry Helmick, defendant, to recover money collected and withheld. • To reverse a judgment for plaintiff for $111.71, defendant prosecutes this writ of error.
    A. W. Martin and Edward H. S. Martin, for plaintiff in error.
    George W. Brown, for defendant in error.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Frank M. Prindle, trading as Frank M. Prindle & Company, Defendant in Error, v. Arthur E. Sander, trading as Sander, Guernsey & Company, Plaintiff in Error.
    Gen. No. 22,204.
    (Not to be 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 March term, 1916.
    Reversed and remanded.
    Opinion filed June 27, 1917.
    Statement of the Case.
    Action by Frank M. Prindle, trading as Frank M. Prindle & Company, plaintiff, against Arthur E. Sander, trading as Sander, Guernsey & Company, defendant, for the purchase price of goods sold and delivered. To reverse a judgment for plaintiff for $812.93, defendant prosecutes this writ of error.
    Adams, Crews, Bobb & Wescott and Gilbert T. Graham, for plaintiff in error.
    Silber, Isaacs, Silber & Woley, for defendant in error; James D. Woley and Jay C. Lytle, of counsel
   Mr. Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court of Chicago, § 33* — when affidavit of merits is sufficient. Even though the affidavit of merits in an action in the Municipal Court of Chicago is not clearly and logically drawn,' contains immaterial matter and states the amount of damages poorly and weakly, it is sufficient where, on analysis, it sets up a good defense to the whole of plaintiff’s claim, sufficiently specifies the nature of such defense and states the damages in such a manner as to render the amount claimed obvious.

2. Sales, § 320* — what may he set off in action for purchase price. In an action for the purchase price of goods, defendant may set up that goods were of an inferior grade and not according to the contract noy to the sample.

3. Municipal Court of Chicago, § 13* — when statement of claim is founded on original contract of sale. A statement of claim which recites that it is for the purchase price of goods sold and delivered to defendant at his request is founded upon the original contract and not upon an account stated.

4. Pleading — when action of court in striking affidavit of merits improper. On review, the action of the trial court in striking an affidavit of merits from the files cannot he sustained on a ground on which the motion to strike was not based.


text:
    In re Petition of Pauline Sawick.
    Gen. No. 22,240.
    1. Execution, § 302

       — -what evidence is admissible to determine whether petitioner maliciously appropriated property. On a petition to the County Court of Cook county for the release of one held in custody by virtue of a capias ad satisfaciendum issued upon a judgment entered in the Municipal Court of Qhicago in an action of trover, where there is an inconsistency between the statement of trover with the affidavit attached, on the one hand, and the verdict of the jury on the other, the County Court judge is warranted in permitting the petitioner to introduce evidence showing that the property was purchased by her, partly paid for, lost and the circumstances attending its loss and her willingness to pay the balanee due, for the purpose of determining whether the petitioner maliciously appropriated or converted the property, or whether she was unable to return the property through no fault of her own.
    2. Execution, § 293

       — when person petitioning for release from custody should he discharged. Where, on petition for the release of one held in custody by virtue of a capias ad satisfaciendum issued upon a judgment in an action of trover, the evidence shows that the petitioner was not actuated by improper or. dishonest motives and that she did not intentionally injure or wrong the plaintiff in trover, a judgment discharging her is proper.
    Appeal from the County Court of Cook county; the Hon. John H. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed June 27, 1917.
    Rehearing denied July 13, 1917.
    McEwen, Weissenbach & Shrimski, for appellant; Harry Okin, of counsel.
    No appearance for appellee.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal from a judgment of the County Court of Cook county, discharging Pauline Sawick, appellee (petitioner in the County Court), from the custody of the bailiff of the Municipal Court of Chicago. The appellee was in the custody of the bailiff by virtue of a capias ad satisfaciendum, issued upon a judgment entered in the Municipal Court in favor of Strelitz Brothers, appellant. On November 8, 1915, appellee made an application in the County Court for a release.

Upon the trial of the petition in the County Court, appellant offered in evidence the original files of proceedings in a certain suit in the Municipal Court entitled Strelitz Brothers, a corporation, v. Pauline Sawick, together with the verdict of the jury in that case, and then moved the court to dismiss the petition filed by appellee; which motion was overruled. The appellee then introduced evidence, and at the close of her evidence the appellee was discharged.

The claim is made by the appellant that the record of the proceedings in the Municipal Court of Chicago, in the suit instituted there by appellant against appellee, shows that malice was the gist of the action, and that that record, according to the doctrine of res adjudicata, is conclusive in the County Court.

On August 31, 1915, appellant filed in the Municipal Court an affidavit for the replevin of a diamond ring, which affidavit set forth that on September 1, 1913, appellee wrongfully took and detained said personal property. On the same day there was issued from the Municipal Court a writ of replevin, directed against appellee, for the diamond ring. Service of the writ was had upon appellee on September 9,1915, and a demand made for the property, and a return made “this writ unexecuted as to the within described property, this 9th day of September, A. D. 1915.”

On September 15, 1915, appellant filed in the same cause a statement entitled “plaintiff’s statement in trover.” That statement contains what may be called two counts, the first averring the loss of the ring; that it got into the possession of the appellee by finding and that she has refused to deliver it to appellant, and did “maliciously, wilfully and fraudulently, then and there convert the said ring to her own use, to the damage of the plaintiff in the sum of $400”; second, averring the delivery of the ring to the appellant for hire, under a certain written contract. That contract provided for the payment of $6 per week for fifty weeks, and, in case of a failure to make such weekly payments, appellant might declare the contract ended and take possession of the ring; and further, that any violation of the contract should be considered trover and conversion; that appellee made default in the payments and maliciously, wilfully and fraudulently converted said property to her own use.

To the “plaintiff’s statement in trover” there is an affidavit attached, made by the agent of appellant, in which he recites “that the nature of plaintiff’s demand is for the sum of $204, the balance due on account of a certain ring described in plaintiff’s statement of claim, which is of the reasonable value of $400,” credit to the extent of $196 being allowed to the defendant by reason of payments made on property received from said plaintiff on account thereof, “which said ring was converted by said defendant as set forth in the statement of claim above, and which is hereby made a part of this affidavit.”

The case in the Municipal Court was tried on September 15, 1915, and the jury brought in a verdict as follows:

“We, the jury, find the defendant, Pauline Sawick, guilty of having maliciously, wilfully and intentionally, and with intent to injure and defraud the plaintiff, converted to defendant’s own use the goods and chattels of the plaintiff, and assess the plaintiff’s damages at the sum of $204.’’^

Judgment was accordingly entered on said verdict for $204 and costs.

On September 28, 1915, a capias was issued against appellee, which was served upon the appellee on December 23, 1915, the return of which recites that as appellee failed and refused to satisfy the writ the deputy had taken the body of said appellee.

In the instant case, in the County Court, and over the objection of the appellant, evidence was introduced by appellee which showed that on June 4, 1912, at the time she got the ring from appellant she was seventeen years of age; that after signing the contract in question, in which the value of the ring was placed at $400, she had paid $196; that she turned over the ring to a friend of hers, one Miss Schumacher, in order that she might have it at a dance; that Miss Schumacher allowed some one else to take the ring; that Miss Schumacher let a Mr. Shaw have the ring, and she, the appellee, was not able to get it returned; that she made fifteen or sixteen payments on the ring after she lost it; that she paid altogether $196; that when she gets employment she will pay the balance.

Apparently the trial judge in the County Court, considering the appellee as a minor at the time of the execution of the contract, and considering the terms of the contract, was of the opinion that (in the cause in the Municipal Court) malice was not the gist of the action and so discharged the petitioner.

The law in general is stated in the case of Jernberg v. Mix, 199 Ill. 254, by Mr. Justice Cartwright, as follows :

“The term 'malice,’ as used in the act in question, applies to that class of wrongs which are inflicted with an evil intent, design or purpose. It implies that the guilty party was actuated by improper or dishonest motives, and requires the intentional perpetration of an injury or' a wrong to another. * * * To entitle a defendant to discharge from imprisonment it must appear that the wrong for which the action was brought was not of that character. The gist of an action is the essential ground or principal subject-matter, without which the action could not be maintained.”

If we consider the evidence offered by appellee in the County Court as competent, it proves that appellee was not actuated by improper or dishonest motives, and that she did not intentionally injure or wrong appellant, and it follows, therefore, that the. judgment of that court was correct.

It is contended, however, by appellant that the evidence offered by appellee in the County Court was incompetent, on the ground that wherever it appears from the pleadings in a civil suit under which an insolvent debtor was imprisoned, that malice is the gist of the action, the judgment in such action is conclusive of the question of malice and is res adjudicata-.

The suit in the Municipal Court was begun on August 31,1915, as a replevin suit, and then on September 15, 1915, was changed apparently to a suit in trover. The record does not show any notice of any kind served upon the defendant in regard to the change from replevin to trover. The statement in trover is partly in the form of a common-law declaration and partly in trover. It consists of what purports to be two counts and an affidavit. The second count sets up the writing signed by appellee, which seems to constitute a hiring of the ring for fifty weeks with a promise by appellee to pay $6 per week for its hire and use, with a proviso that in case of a failure to make any weekly payment the contract may be terminated and appellee’s interest in the property, and what she has paid concerning it, forfeited, and that appellant may take forcible possession of said property. The affidavit states that the nature of appellant’s demand is for the sum of $204, the balance due on account of a certain ring.

Taking the statement in trover and the affidavit together, it is obvious that the claim of the appellant in the Municipal Court was for a “balance due on account.” The affidavit states that the ring was of the reasonable value of $400 and that appellee was entitled to credit to the extent of $196, by reason of payments made by appellant. The contract makes no provision for the passing of the title at any time from appellant to appellee. It seems to be a contract providing for the leasing of personal property for a given period of time, for certain compensation, and when taken in conjunction with the phraseology in the affidavit, which undertakes to interpret the contract, seems to be a subterfuge for a sale on the instalment plan. Obviously, there is an inconsistency between the statement in trover with the affidavit attached, considered on the one hand, and the verdict of the jury on the other; and we are of the opinion that under those circumstances the trial judge in the County Court was entitled to admit the evidence offered by appellee, in order to determine whether the appellee maliciously appropriated or converted the ring in question.

The court said in Kellar, Ettinger & Fink v. Norton, 228Ill. 356:

“For aught that appears from the declaration in the Superior Court, the failure of appellee to return the property may have resulted from circumstances over which he had absolutely no control. Every averment of the declaration may be true and still the appellee may have been entirely free from any evil intent or purpose.”

So in the instant case, for aught that appears in the statement in the Municipal Court, the appellee may have been unable through no actual fault of her own to return the property in question. The judgment should be affirmed.

Affirmed.


author: Mr. Presiding Justice Holdom

text:
    Anna Przybylski, Defendant in Error, v. John P. Remus, Plaintiff in Error.
    Gen. No. 22,517.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Thomas Tavxob, Jb., Judge, presiding. Heard in this court at the October term, 1916.
    Reversed without remanding.
    Opinion filed July 2, 1917.
    Rehearing denied July 16, 1917.
    Statement of the Case.
    Action of trespass on the case, prosecuted by leave of court in forma pauperis, by Anna Przybylski, plaintiff, against the Eagle Brewing Company, a corporation, Anton J. Cermalc, bailiff of the Municipal Court of Chicago, Stanley S. Walkowiak, Thomas Wardenski, Vincent Zwiefka and John P, Remus, defendants. By direction of the trial judge, all of the defendants except John P. Bemus were eliminated from the case before it was finally submitted to the jury as to defendant Bemus. Plaintiff had a verdict against Bemus for $2,195, upon which, after a remittitur of $945, judgment for $1,250 was entered. Bemus prosecutes this writ of error in which he made his co-defendants parties. On motion, his codefendants' not having appeared after service, a judgment of severance was entered, and this writ of error is prosecuted solely by defendant Bemus.
    Abstract of the Decision.
    1. Sheriffs and constables, § 46

       — when officer is protected by writ of restitution. A writ of restitution protects the officer executing it in all that he lawfully does in virtue of it, and the proceedings in which it was issued cannot be attacked as against him.
    2. Sheriffs and constables, § 46* — when officer may disregard private arrangements as to possession in serving writ of restitution. Private arrangements between a defendant in possession and another by which the character of the possession is changed are not to be inquired into by an officer who comes with a writ of restitution and finds defendant in possession, and, therefore, such an arrangement cannot be set up as overcoming the writ, in an action of trespass on the case growing out of the execution of the writ.
    3. Forcible entry and detainer, § 105* — what care required of officer executing writ of restitution. In removing goods in executing a writ of restitution in forcible entry and detainer proceedings, the officer is not required to look for money in unexpected and unusual places, such as between the springs and mattress of a bed.
    4. Forcible entry and detainer, § 105* — lohat is duty of person

      to safeguard Ms goods "being removed under writ of restitution. It is the duty of one whose goods are being removed from premises under a writ of restitution, in forcible entry and detainer proceedings, to take steps to safeguard his valuables when instructed by the officer to do so.

      Harry A. Biossat and Nels H. Olson, for plaintiff in error.
    E. M. Seymour, for defendant in error.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

5. Conspiracy, § 12 - — what constitutes material, variance between pleading and. proof. Where a declaration pontains in each count a charge of conspiracy to do the things complained of and there is no evidence of conspiracy, there is a material variance between the pleading and the proof.

6. Conspiracy, § 12* — what will not support charge of. A judgment against one of the alleged co-conspirators will not support a charge of conspiracy.

7. Conspiracy — what constitutes. A conspiracy is a combination ■ of two or more persons for the purpose of accomplishing a criminal or unlawful act or an object either criminal or unlawful by unlawful means, or a combination of two or more persons to do something unlawful as a means to an ultimate end.

8. Sheriffs and constables, § 40* — what is duty of officer as to execution of writ. It is the duty of an officer receiving a writ of restitution regular on its face to execute it, and he has no power to review the action of the court issuing it.

9. Forcible entry and detainer, § 105* — what is duty of owner to protect goods being removed under writ of restitution. It is the duty of one whose goods have been removed under a writ of restitution in forcible entry and detainer proceedings to use his best efforts to protect it from damage.

10. Forcible entry and detainer, § 105* — when officer removing goods under a writ of restitution is not liable for damage. The officer removing goods' under a writ of restitution, in forcible entry and detainer proceedings, is in no way responsible for damage occurring to the goods after their removal from the premises.

11. Instructions, § 110* — when instruction erroneous as inapplicable to pleading. An instruction which is not applicable to the claim set up in the declaration is faulty.

12. Sheriffs and constables, § 83* — when instruction in action for damage against officer serving writ is erroneous. In an action against an officer to recover for damage to property through the execution of a writ of restitution, an instruction which fails to inform the jury of the protection which the writ afforded those acting under it, and informs the jury that if they believe the plaintiff was the owner of the property and was in peaceable possession at the time, they should find the officer executing the writ guilty, is erroneous.


text:
    Anna Przybylski, Plaintiff in Error, v. Eagle Brewing Company et al., Defendants in Error.
    Gen. No. 22,987.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 788

       — necessity of till of exceptions. Where there is no bill of exceptions, the court cannot review the record.
    2. Appeal and error, § 788* — right to plaintiff in error to avail himself of till of exceptions in another case. A plaintiff in error in one case cannot avail himself of the bill of exceptions tendered by a plaintiff in error in another case.
    Error to the Circuit Court of Cook county; the Hon. Thomas Taylor, Jr., Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917.
    Rehearing denied July 16, 1917.
    Statement of the Case.
    Action by Anna Przybylski, plaintiff, against the Eagle Brewing Company, a corporation, and others (impleaded, etc.), defendants. This cause was consolidated for hearing with Przybylski v. Remus, ante, p. 106, which is decisive of this case.
    Harry A. Biossat and Nels H. Olson, for plaintiff in error.
    S. S. Walkowiak and O. A. Arnston, for defendants in error; James D. Power, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Henry J. Thomssen, Defendant in Error, v. Herman T. Meinersmann, Plaintiff in Error.
    Gen. No. 22,609.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 68

       — when evidence shows failure to comply with, covenant to furnish heat. Where the evidence shows that the temperature of a flat used as a dwelling, for which, under the lease, the landlord covenants to furnish heat, was as low as 46° Fahrenheit and that as a result the lessee’s wife, and child became sick and the flat was rendered uninhabitable, is sufficient to show a failure to comply with the- covenant.
    - 2. Landlord-, and -tenant, ■§ 262* — what constitutes constructive eviction. The failure of a landlord to furnish heat in accordance witn the provisions of the lease constitutes a constructive eviction which justifies''the tenant in moving from the premises and releases him from the payment of the rent thereafter accruing.
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed with judgment of nil capiat and for costs.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by Henry J. Thomssen, plaintiff, against Herman T. Meinersmann, defendant, to recover rent and attorney’s fees. To reverse a judgment for $100 for plaintiff, defendant prosecutes this writ of error:
    Paul A. P. Warnholtz, for plaintiff in error; Charles A. Pitch, 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 Holdom

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Melvin Lester, Plaintiff in Error.
    Gen. No. 22,717.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Criminal law, § 502

       — when information presumed to he sufficient. In the absence of a motion, preliminarily made, to quash an information, after judgment, it will be presumed on review that the information was sufficient in law, unless it appears from the information itself that it failed to charge defendant with the commission of a crime.
    2. Vagrancy, § 4* — when information is sufficient. An information which charged that defendant heretofore, to wit, on the 18th day of October, A. D. 1915, at the City of Chicago, “was an idle and dissolute person” and “was habitually neglectful of his employment and calling, and did not lawfully provide for himself and for the support of his family”; that he “was an idle and dissolute person and neglected all lawful business, and did habitually misspend his time by frequenting houses of ill fame, gaming houses and tippling shops, without giving a good account of himself,” and that he was a “thief,' having no lawful means of support, and is habitually found prowling around crowded thoroughfares and lounging about, and found in houses of ill fame, gambling houses and tippling shops,”' contrary to the statute, etc., held sufficient to charge defendant with vagabondage and to inform him of the nature and quality of the charge, even though defendant is termed a vagrant in the information. ,

      Error to the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.'
    Opinion filed July 2, 1917.
    Statement of the Case.
    Information by the People of the State of Illinois, plaintiff, against Melvin Lester, defendant, on the charge of being a vagabond. To reverse a sentence of imprisonment for six months in the house of correetion, defendant prosecutes this writ of error.
    George W. Blackwell, for plaintiff in error.
    Maclay Hoyne, for defendant in error; John F. Cashen, Jr., of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Gideon A. Price, Plaintiff in Error, v. George J. Marie and Katherine Marie, Defendants in Error.
    Gen. No. 22,979.
    1. Judgment, § 286

       — what is ground for vacation of. Where, on a motion to vacate a judgment, the return of the sheriff on the pluries writ issued against the defendant shows that it had not been served upon him, it is the duty of the court to vacate the judgment.
    2. Judgment, § 196* — when is valid against one of two defendants. A judgment against one of two defendants in an action on. a promissory note is valid although it is also against his codefendant, of whom the court had not jurisdiction because of lack of service.
    3. Judgment, § 80* — what constitutes laches in moving to vacate default judgment. A delay of more than a year and a half on the part of a defendant who had defaulted after pleading to the action in moving to vacate the default judgment is such laches as will preclude relief being afforded him.
    4. Pleading, § 232* — what does not affect discretion of trial court to allow amendments. The discretion of the trial court to allow amendments to pleadings is in no way curtailed because one of the parties is not personally or by counsel before the court.
    5. Pleading, § 258* — when defendant cannot complain of amendment increasing ad damnum. Defendant cannot complain on the ground of surprise of the action of the court in allowing an amendment increasing the ad damnum in an action on a promissory note, where it appeared from plaintiff’s statement of claim that there was more due on the note at the time of trial than the amount of the ad damnum.

    6. Pleading, § 258

       — when amendment increasing ad damnum may not he complained of. Defendant has no cause to complain of the allowance of an amendment increasing the ad damnum where it was allowed to save rights and advance justice and is not against any positive rule of law.
    7. Appeal and error, § 1802* — when, case remanded with directions to expunge erroneous order. Where it appears on appeal that the trial court was without jurisdiction to enter an order vacating a default judgment, the order will he reversed and the cause remanded with directions to expunge the order from the record.
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded with directions.
    Opinion filed July 2, 1917.
    Rehearing denied July 16, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    George F. Talty, for plaintiff in error.
    A. D. Gash and A. G. Dicus, for defendants in error.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion: of the court.

This is an appeal from an order vacating and setting aside a judgment for $3,570 in favor of plaintiff and against the defendant George J. Marie. The action was upon a promissory note in which both defendants were makers and plaintiff the payee. The ad damnum in the statement of claim was $3,000. The suit was commenced April 21,1908. Defendant George J. Marie appeared and filed a plea of the general issue and a special plea setting up his discharge in bankruptcy. There was neither service nor appearance of the defendant Katherine Marie. The defendants failing to appear when the case was called for trial, the jury were called and assessed the plaintiff’s damages-against both defendants at $3,570, upon which verdict there was a judgment entered on the same day. __a__

On the trial of the case plaintiff was allowed to increase the ad damnum to $4,000. The amount of the judgment is for the principal and interest due upon the note set forth- in the statement of claim at the time the judgment was entered. On October 13, 1915, an execution was issued and a demand made for payment on the defendant George J." Marie on October 22, 1915. This execution was returned nulla bona with a schedule of George J. Marie claiming his property as exempt. On May 22, 1916, on notice given and petition filed by the defendant Katherine Mariej the judgment as to her was vacated and set aside on the ground, as alleged by Katherine Marie, that she was not served with process, and at the same-time the court ordered the judgment as against the defendant George J. Marie to stand in full force and effect. On July 29,1916, defendant George J. Marie moved to vacate the judgment as to himself on the principal grounds that he had received no notice of the motion to increase the ad damnum, that the note was given without consideration, and that he had been discharged in bankruptcy. On August 18, 1916, plaintiff moved the court to deny the motion to vacate the judgment as to George J. Marie, and on the 14th day of October, 1916, the motion of defendant George J. Marie to vacate the judgment as to him was allowed and the judgment vacated, from which order this review is prosecuted.

It will be observed that from the day the judgment was entered until the defendant George J. Marie moved to vacate the judgment, more than one year and a half had elapsed and the order before us for review was entered one year and nine months after the judgment was entered. There is no fact stated in the petition of George J. Marie to vacate the judgment in an attempt to excuse the delay in making the motion. At the time Katherine Marie made her motion to vacate the judgment as to her, the return of the sheriff upon the pluries summons issued against her showed that it had not been served upon her. Therefore the court in entering the judgment against Katherine Marie was without jurisdiction so to do, hence it became the duty of the court to vacate the judgment as to her.

The judgment against the defendant George J. Marie was valid notwithstanding it was also against his co-defendant, of whom the court had not jurisdiction.

In Pardon v. Dwire, 23 Ill. 573, a judgment against the defendants in an ejectment suit where one of them had not been served, it was held that the judgment was proper as against the one served, who appealed, and simply void as to the other defendant, and that if the judgment had been rendered against defendant in the singular number, it would have been held applicable to the defendant who was served and who was making defense.

In Gardner v. Hall, 29 Ill. 277, a case against four defendants, one of whom was not served, the clerk recited in. the final order that the defendants appeared, and it was held that this entry referred to those only who had been served.

In Dawson v. Bridges, 19 Ill. App. 280, in a suit against five defendants, two of whom were not served and did not appear, and the judgment was against the defendants, it was held that the judgment was only against those who by their own act or by the act of the law had been made the subjects of jurisdiction.

The judgment being proper as against the defendant George J. Marie, the Municipal Court was without jurisdiction to vacate it after a lapse of thirty days from its entry. Defendant George J. Marie attempts to bring himself within the exception clause of section 21 of the Municipal Court Act (J. & A. 3333), which provides that a judgment may be vacated where a petition to the court states grounds for vacating, setting aside or modifying the judgment which would be sufficient to cause such judgment to be set aside or modified by bill in equity, etc.

In Gallay v. Mathis, 195 Ill. App. 170, it was held that where a petition to vacate a default judgment does not account for the failure of defendant to file an affidavit of merits within the time allowed, and does not explain why a motion to vacate the judgment was not made within the statutory period of thirty days, the court is without jurisdiction to enter an order vacating the judgment.

While the defendant George J. Marie had pleaded to the action, he defaulted at the trial, and with his presumptive knowledge of the entry of the judgment he waited more than a year and a half before moving to vacate it. This was laches of the grossest kind, against which even a court of conscience could not afford relief.

Upon a trial it is within the sound discretion of the court to allow amendments to pleadings, and such discretion is in no way curtailed because one of the parties is not personally or by counsel before the court. Defendant could not have been taken by surprise, because from plaintiff’s statement of claim it appeared that there was more due on the note at the time of trial than the amount of the ad dammim. The amendment was allowed to save rights and advance justice and is not against any positive rule of law; consequently, defendant has no cause for complaint. Miller v. Metzger, 16 Ill. 390.

The. Municipal Court was without jurisdiction to enter an order vacating the judgment against George J. Marie on October 14, 1916, and that order vacating the judgment entered against George J. Marie for $3,570 is reversed and the cause is remanded with directions to expunge the order of October 14,1916, from the record.

Reversed cmd remanded with directions.


text:
    Ed. E. Rath, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 22,985.
    1. Payment, § 44

       — when may he recovered. To entitle one to recover money paid under an illegal statute or ordinance, the payment must have been made under both duress and protest.
    2. Payment, § 44* — when made under duress. Where a person might have been arrested unless the payment exacted for a license by an unlawful ordinance is made, and, if not arrested but proceeded against by summons, might have been fined, imprisonment to follow nonpayment of fine, duress is present.
    3. Limitation of. actions, § 11* — what are not written contracts within statute. Neither statutes nor ordinances are written contracts within the meaning of the Limitation Act (J. & A. V 7211).
    4. Limitation of actions, § 24* — when cause of action to recover money paid under invalid ordinance accrues. The cause of action to recover money paid under an illegal licensing ordinance accrues at the time of the payment, and the statute of limitations begins to run from that time, even though the illegality may not have been known then.
    5. Interest, § 24* — what does not constitute vexatious withholding of money wrongfully collected. Where the only demand made of a city for the return of money collected under an illegal ordinance is the commencement of an action to recover the money, it cannot be claimed that it was vexatiously withheld up to the commencement of the action.
    6. Taxation, § 340* — when 'demand is unnecessary to recover hack illegal taxes. In the absence of statute, demand is not necessary before bringing suit to recover back illegal taxes.
    7. Interest — when city not liable for in excess of amount allowed on judgment. Where the only demand made on a city for money paid to it under an illegal ordinance is by bringing suit to recover such money and a judgment is entered against the city soon thereafter drawing ttiie legal rate of interest, the city is not further liable for interest.
    8. Interest — necessity of demand. Interest is recoverable from the date of demand and not before.
    Error to the Municipal Court of Chicago; the Hon. Peter C. Walters, Judge, presiding. Heard in this court at the March term, 1917. Affirmed.
    Opinion filed July 2, 1917.
    Rehearing denied July 16, 1917.

      Samuel A. Ettelson, for plaintiff in error; Donald P. Vail, Wilbur F. Hartman and Harry L. Brin, of counsel.
    Samuel Q-. Hamblen, for defendant in error.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action by plaintiff as-assignee of Frank H. Smiley and the Mooney-Boland Detective Agency to recover from the City of Chicago money paid as detective license fees under an ordinance of defendant, which ordinance was held in City of Chicago v. O’Brien, 268 Ill. 229, to have been enacted without authority. There was a trial before the court under a stipulation of facts supplemented by oral evidence on the part of plaintiff and a finding and judgment for $300.

Frank H. Smiley made one payment of $100 without protest, claim for which was disallowed. The MooneyBoland Detective Agency made four annual payments, the first being March 6, 1911, and the remainder in the three succeeding years. The suit was instituted April 5, 1916. The court held that the Five-Year Statute of Limitations was a bar to the 1911 payment. The trial judge declined to allow interest. Plaintiff assigns cross errors, contending that there should have been a judgment for the Smiley payment and that the 1911 payment by the Mooney-Boland Detective Agency should have been included in the judgment, on the theory that the Ten-Year and not the Five-Year section of the Statute of Limitations applied; also that plaintiff was entitled -to interest. The City of, Chicago contends that the payments were voluntary and therefore cannot be recovered.

It appears that at the time of the O’Brien suit fourteen other suits against fourteen different detectives were pending and the O’Brien suit was by agreement made a test case, the decision in which was to control the others.

It likewise appears from the evidence that policemen visited the offices of both Smiley and the Mooney-13 oland Detective Agency and threatened legal proceedings unless payment was made. The payments by the Mooney-Boland Detective Agency were made under protest.

It is axiomatic that to entitle a party to recover money paid under an illegal statute or ordinance, both duress and payment under protest must be present. The city insists that duress does not exist here, because all that the police officers threatened was „a summons and not arrest. The ordinance in question made it unlawful for any person to act or to hold himself out as a special or private detective for hire, etc., without being licensed as required by the ordinance. The penalty for violating the ordinance was fixed at a fine of not less than $25 nor more than $200 for each offense. While the ordinance was invalid, as subsequently held in the .O’Brien case, supra, a person doing business without complying with the ordinance and paying $100 each year for a license might be summarily dealt with by being arrested, notwithstanding an officer may have only threatened to summon such person; for as disclosed by the evidence of a police officer, whatever might be done would be at the direction of the captain of this particular police officer, who must give directions, and who up to that time had not laid out any plan of dealing with those maintaining detective offices without paying the license required by the ordinance.

It is not so much a question of what the city authorities might do as to what they had the power of doing. An officer might arrest one not complying with the ordinance, making a complaint after the arrest. Fear of the exercise of such power would constitute duress in law, because such fear would be well grounded, as the power to make an arrest existed, Furthermore, it is well known even to those who are not versed in the law that failure to pay a fine imposed for a violation of a city ordinance is met with imprisonment in the house of correction. The fact that the city had proceeded by summons against fifteen persons who had failed to comply with the ordinance was no guarantee that the power of arrest might not be exercised in the cases of Smiley and the Mooney-Boland Detective Agency.

We think Harvey v. Town of Olney, 42 Ill. 336, is controlling of our decision, and while it is true, so far as we have been able to ascertain, that this case has not been cited by the Supreme Court, yet it has never been modified, distinguished against or reversed by that tribunal in any subsequent case, and it has concededly been cited and followed in several cases in this court. The Supreme Court in the Harvey case, supra, said that the Town of Olney could not “after extorting a large sum of money for a pretended license by threats of prosecution, be allowed to come into court and resist repayment by saying: 'Although we did this thing, we had no right to do it, and the ordinance that we pretended was a law was really no law, and these persons should have known better than to have paid us the money. ’ It is only necessary to say, that the town cannot be permitted to defend its wrong by this species of self-stultification. A person to whom a town offers the alternative of paying, for a license, or undergoing a prosecution before the police magistrate, which would result in fine and imprisonment, if the ordinance under which the city acts should be held valid, may certainly pay his money under protest, without losing his rights, and cannot be required to incur the hazard of the magistrate’s decision upon the validity of the ordinance, and possibly be driven to a writ of habeas corpus, to relieve himself from imprisonment. Such payment would not be voluntary.” And the court further held that if the money was paid under threats of prosecution, or under a belief, induced by the officers of the town, that only by payment could prosecution be escaped, and the money was paid under protest, then such payment could in no sense be called voluntary.

We have in the instant case one in which the persons involved might have been arrested unless the payment exacted for a license by an unlawful ordinance was made, and if not' arrested but proceeded against by summons, might have been fined, imprisonment to follow nonpayment of such fine. This was clearly duress.

The cases of Illinois Glass Co. v. Chicago Tel. Co., 234 Ill. 536; Conkling v. City of Springfield, 132 Ill. 420, and Rendleman v. Rendleman, 156 Ill. 568, are not controlling, as the element of the power to imprison was not present in any of these cases.

Neither statutes nor ordinances are written contracts within the meaning of the Limitation Act (J. & A. ¶ 7211). Plaintiff is not suing upon the ordinance, but for the illegal exaction of money paid under it, and we think the rule is correctly stated in volume 2, Cooley on Taxation, page 1508, thus:

“The proper action against a municipality in these cases is assumpsit for money had and received, the liability not attaching until the money is paid over, and being then based upon the receipt of the money and not upon the illegalities which preceded it. As the cause of action accrues at the time of payment, the statute of limitations begins to run from that time even though the illegality may not then have been known.” W. A. Fraser Co. v. Chicago, B. & Q. R. Co., 189 Ill. App. 96; Handtoffski v. Chicago Consol. Traction Co., 274 Ill. 282.

In N. K. Fairbank Co. v. City of Chicago, 153 Ill. App. 140, it was held that a city ordinance did not of itself render the contractual relation existing between the city and the citizen written in character, and that therefore the five-year period of limitation was applicable.

The only demand, we judge from the record, made upon the city to refund the license money paid under the invalid ordinance was the commencement of this action. It cannot therefore be said that the money was vexatiously withheld up to the time of the commencement of the suit. While the city should have paid upon demand without suit' (and the commencement of the suit was in effect a demand) or after suit commenced without contest, still, a judgment for the amount due having been soon thereafter entered, and that judgment drawing interest at the statutory rate, satisfies the city’s liability for interest. A demand is not' necessary before bringing suit to recover back illegal taxes unless made so by statute, and there is no such statutory provision in Illinois. Look v. Industry, 51 Me. 375. Interest is recoverable from the date of demand and not before. Boston & 8. Glass Co. v. Boston, 4 Metc. (Mass.) 181. As Smiley paid without protest, the payment was voluntary and cannot be recovered in an action against the city notwithstanding the presence of duress. The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    James Kronopolos, Defendant in Error, v. P. O’Byrne, Plaintiff in Error.
    Gen. No. 23,034.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Pleading, § 466

       — when declaration is sufficient to support judgment. While many inferences are indulged • after verdict, in determining whether a declaration states a good cause of action, if it does not from its context, with all legal intendments in its favor, state a cause of action, it will be insufficient to support a judgment.
    2. Appeal and ebbob, § 1184* — what is reviewable. The question whether , or not a declaration states a good cause of action is reviewable.
    3. Appeal and ebbob, § 1802* — when judgment reversed with directions to permit defendant to demur or plead to declaration. Where a declaration is so defective that it cannot be determined from any averment of fact contained in it whether it is a declaration in tort or in ^assumpsit or is a criminal indictment and no fact averred nor all of the facts averred constitute a cause of action, a judgment for plaintiff will he reversed with directions, to permit defendant to demur or plead if he shall so move.
    Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in this court at the March term, , 1917.
    Reversed,and remanded with directions.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by James Kronopolos, plaintiff, against P. 0 ’Byrne, defendant. To reverse a judgment for plaintiff for $1,700, defendant prosecutes this writ of error.
    Louis A. Heile, for plaintiff in error; C. E. Heckler, of counsel.
    Joseph E. Winterbotham, for defendant in error.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Frank J. Ziemann, Plaintiff in Error, v. Bernard Sychowski, Defendant in Error.
    Gen. No. 23,038.
    (Not to be reported in full.)
    Abstract of the Decision.
    Bills and notes, § 443

       — when evidence insufficient to sustain finding of failure of consideration. In an action to enforce the payment of instalments on a promissory note, evidence examined and held to show a finding and judgment for defendant, oh the ground of failure of consideration, to he contrary to the probative force of the evidence.
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and judgment here for $130.15.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by Frank J. Ziemann, plaintiff, against Bernard Sychowski, defendant, to enforce payment of certain instalments on a promissory note. To reverse a judgment of nil capiat, plaintiff prosecutes this writ of error.
    Edward E. Shinnick, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendant in error; Rupert D. Donovan and Leslie M. O’Connor, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    E. F. McDonald & Company, Appellee, v. Drexel Motor Livery Company et al. On Appeal of W. J. Kalus.
    Gen. No. 23,046.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 864

       — when record not searched for matters not in abstract. The abstract is the pleading of the party, and the record will not be searched for any matter not appearing in the abstract.
    '2. Appeal and error, § 1284* — when presumed that trial court decided that notes and mortgage were sufficient to give plaintiff in replevin possession. In an action of replevin, where plaintiff claims the right of possession by virtue of the “insecurity clause” in a chattel mortgage given by one of the defendants upon the property taken under the writ, and neither the mortgage nor the notes secured by it appear in the record, it will he assumed that the trial court, which had the notes and mortgage before it, decided that they were sufficient to give plaintiff possession under the “insecurity clause.”

      Appeal from the Municipal Court of Chicago; the Hon. John Stelk, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917.
    Rehearing denied July 16, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action of replevin by E. F. McDonald & Company, a corporation, plaintiff, against the Drexel Motor Livery Company, a corporation, W. J. Kalus and John Doe, defendants. From a judgment finding the right to the replevined property in the plaintiff, defendant Kalus appeals.
    William H. Fish, for appellants.
    Ninde, Potter & Rigby, for appellee.

      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 Holdom

delivered the opinion of the court.

3. Replevin, § 123 — when evidence sufficient to sustain finding for plaintiff. Evidence, in an action of replevin, examined and held sufficient to support a finding for plaintiff.


text:
    Alma Heizer et al., Defendants in Error, v. John W. Heizer, Plaintiff in Error.
    Gen. No. 23,051.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded with directions.
    Opinion filed July 2, 1917.
    Rehearing denied July 16, 1917.
    Statement of the Case.
    Bill for divorce by Alma Heizer, complainant, against John W. Heizer, defendant. By an order entered therein defendant was directed to pay $100 as solicitors’ fees to F. A. Woodbnrv and Otto Schusterman, complainant’s solicitors, for services in defending a writ of error in the Appellate Court in Reiser v. Reiser, 204 111. App. 200, which was sued out to reverse the order for alimony made in the divorce suit, in which, prior thereto, a decree of divorce had been entered. To reverse the order allowing solicitors'’ fees, defendant prosecutes this writ of error.
    G. A. Buresh and Otto Wadewitz, for plaintiff in error.
    F. A. Woodbury, for defendants in error.

      Abstract of the Decision.
    1. Divorce, § 142

       — what does not affect allowance of solicitors’ fee for defending decree, on review. The fact that the measure adopted by the trial court to ascertain the amount of alimony was held erroneous on appeal does not deprive that court of jurisdiction to allow to a wife solicitors’ fees to defend on review the integrity of the alimony decreed.
    2. Divorce, § 143* — who may h,ave allowance of solicitors’ fees. The allowance of solicitors’ fees in a divorce suit must be made to the wife and not to her solicitors.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Alma Heizer et al., Defendants in Error, v. John W. Heizer, Plaintiff in Error.
    Gen. No. 23,052.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded with directions.
    Opinion filed July 2, 1917.
    Rehearing denied July 16, 1917.
    Statement of the Case.
    Bill for divorce by Alma Heizer, complainant, against John W. Heizer, defendant. By this writ of error complainant seeks to reverse a decree allowing solicitors’ fees. This case is similar in every material respect to Heizer v. Heizer, ante, p. 126.
    G. A. Buresh and Otto Wadewitz, for plaintiff in error.

      Abstract of the Decision.
    1. Divobcb, § 142

       — when defendant not prosecuting appeal required to pay solicitors’ fees for defending appeal. The nonprosecution of an appeal taken by and allowed a defendant in a divorce case will not relieve him from the payment of solicitors’ fees allowed complainant to defend such appeal, his proper course being to withdraw his appeal before the chancellor and to move for the vacation of the order allowing such fees.
    2. Divobcb, § 143* — who may have allowance of solicitors’ fees. The allowance of solicitors’ fees in a divorce suit must be made to the wife and not to her solicitors. Following Heizer v. Heizer, ante, p. 126.
    No appearance for defendants in error.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Charles Verbitzky, Jr., by Charles Verbitzky, Appellee, v. Daniel H. Cunningham, Appellant.
    Gen. No. 23,060.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Shebidan E. Fby, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed with a finding of fact.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by Charles Verbitzky, Jr., a minor, by Charles Verbitzky, his father and next friend, plaintiff, against Daniel H. Cunningham, defendant, to recover damages for personal injuries to plaintiff by negligence. From a judgment for plaintiff for $200, defendant appeals.
    It appeared that plaintiff, then between two and three years of age, suffered from hernia; that defendant was consulted by plaintiff’s father; that hernia was not easily located in a child of that age and there was some doubt as to which side it was on. It further appeared that the father decided that it was on the left side and directed an operation, which was successfully performed, a hernia being found. Two weeks later the defendant was called again to see the child, who, he was informed, manifested pain, but failed to discover anything. He told the parents to inform him if there was any evidence of hernia on the right side, as he thought that might be the trouble. Three weeks later the father called on defendant and demanded a return of the money paid for the operation on the ground that it had been performed on the wrong side and informed defendant that a lump had appeared on the right side. Defendant offered to operate again without charge, but the father would not agree.
    Abstract of the Decision.
    Physicians and surgeons, § 22

       — when evidence insufficient to sustain verdict for plaintiff in action for negligence. In an action against a physician to recover damages for negligence in performing an operation on plaintiff, a minor, for hernia, evidence examined and held insufficient to support a verdict for plaintiff.
    Egbert J. Folonie, for appellant.
    No appearance for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Abe Shapiro and Jack La Bow, Plaintiffs in Error.
    Gen. No. 23,063.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Conspiracy, § 35

       — when indictment for is correct. An Indictment for conspiracy, each of the six counts of which charges all of the defendants with conspiring to do unlawful acts in each count particularly set forth, two counts charging conspiracy to obtain money by false pretenses, two to obtain money by means of confidence game and each count involving the obtaining from two named women money to protect them from being molested by the police in conducting a disorderly house and relating to the same transactions stated in varying forms, charges defendants with committing a misdemeanor and is sufficient.

      Error to the Criminal Court of Cook county; the Hon. Charles M. Thomson, Judge, presiding. Heard in this court at the March term, 1917;
    Affirmed as to La Bow and reversed and remanded as to Shapiro.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Indictment by the People of the State of Illinois, plaintiff, against Abe Shapiro, Jack La Bow, Frank Bipplinger and George Boggs, defendants,, for conspiracy. Defendants Bipplinger and Boggs were acquitted. Defendants Shapiro and La Bow were found guilty and sentenced to pay a fine of $1,500 each with costs taxed at $49.35, to reverse which judgment they prosecute this writ of error.
    McEwen, Weissenbach & Shrimski, for plaintiff in error Shapiro.
    Michael E. Maher, for plaintiff in error La Bow.
    Maclay Hoyne, for defendant in error; Alexander E. Arkin, of counsel.

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

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

2. Indictment and information, § 53 — when within discretion of court to allow or deny motion to compel election of counts. It is in the discretion of the trial court to allow or deny a motion to require the State to elect upon which counts of an indictment it will elect to prosecute, and the exercise of this discretion will not be disturbed upon review unless it is apparent that it was exercised to the manifest injury of the defendants.

3. Indictment and information, § 50* — when joinder of offenses of same character does, not vitiate indictment. In the case of misdemeanors, the joinder of several offenses of the same character will not in general vitiate the indictment in any stage of the proceedings.

4. Indictment and information, § 50* — when not quashed for joinder of offenses of same character. In the case of misdemeanors, the practice of quashing the indictment or information for the joinder of several offenses of the same character, or of calling on the prosecution to elect on which charge it will proceed, does not exist.

5. Criminal law, § 124* — what evidence defendant may give where witness testifies to incriminating fact. Where a witness has testified in a criminal prosecution to a fact incriminating defendant, defendant should be permitted, in testifying on his own behalf, to state whether or not such fact was testified to by the witness at a preliminary hearing at which defendant was 'present and heard the witness testify.

6. Witnesses, § 224* — what is proper cross-examination of witness testifying to fact incriminating defendant. Where a witness has. testified in a criminal prosecution to a fact incriminating defendant, the latter’s counsel is entitled to ask him on cross-examination whether he did not on a preliminary hearing testify differently, and in so asking it is not necessary as a preliminary to repeat to the witness verbatim the question put and the answer on such preliminary hearing.

7. Criminal law, § 557* — when oral instructions not reversibly erroneous. It is not ground for reversal that on a criminal prosecution the court gave the jury oral instruction .as to the form of the verdict, such an instruction not being as to the law of the case.

8. Conspiracy, § 54* — when instructions not reversibly erroneous. On an indictment for conspiracy, instructions examined and held not ground for reversal.

9. Criminal law, § 372 — when judgment is several. A judgment against two defendants, on an indictment for conspiracy, which assesses the fines and costs against each defendant, the exact amount being written in the judgment, is not joint but several, even though the judgments are written together and are one judgment.

10. Criminal law, § 590* — when improper argument of counsel is cured. Improper argument of counsel for the State in referring to the demeanor in the court room of the defendant in a criminal case, held corrected by a voluntary withdrawal of the remark.

11. Criminal law, § 234* — when reference by State to demeanor of defendants is error. While counsel for the State may, in a criminal prosecution, refer to the demeanor on the witness stand of a defendant who testified, such reference should not be made to the demeanor of defendants in the court room.

12. Criminal law, § 553* — when improper argument of counsel is not ground for reversal. Improper argument of counsel for the State in a criminal prosecution is not ground for reversal where the verdict could not have been otherwise had the remark not been made.

13. Criminal law, § 525* — when error in procedure is not ground for reversal. On a criminal prosecution, where the evidence in the record so conclusively establishes the guilt of the accused that there is no room for reasonable doubt, harmless error in procedure will not work a reversal.

14. Conspiracy, § 43* — when indictment is sufficient to support judgment against one defendant. An indictment for conspiracy which charges several defendants with conspiring with persons to the grand jury unknown is sufficient to support a judgment against one of such defendants.


author: Mr. Justice Dever

text:
    William Dorothy, Trustee, Defendant in Error, v. Ethel Salzberg, Plaintiff in Error.
    Gen. No. 22,676.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Fraudulent conveyances, § 271

       — when evidence is sufficient to show fraudulent conveyance to father. In an action of replevin by the trustee in bankruptcy of the estate of a company to recover a piano sold under a conditional sale contract to an employee of the bankrupt providing that title should remain in the seller until payment was made and that the piano might be rétaken without notice if sold without consent of the seller, where it appeared that the defendant was a minor sixteen years of age at the time of making the contract; that she lived at her father’s home until her marriage; that prior to her marriage she executed a bill of sale to her father; that following the marriage she lived in four rooms in the rear of the building occupied by her father, and that the piano was not moved from the premises, evidence held sufficient to show that the bill of sale was fraudulently executed.
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding. Heard in this court at the October, term, 1916.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action of replevin by William Dorothy, trustee in bankruptcy of the estate of R. K. Maynard Piano Company, plaintiff, against Ethel Salzberg, defendant, to recover the possession of a piano which had been delivered by the bankrupt company, to her. From a judgment for plaintiff, defendant brings error.
    William A. Jennings, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Infants, § 12* — when person may not take advantage of minority to commit fraud by making conveyance of property. Although a person could refuse to perform a contract for the purchase of a piano on instalments because she was a minor at the time, still she cannot take advantage of the fact that the contract is not binding to commit a fraud on the seller by making a sale of the instrument to a third person.


text:
    Warren Jewelry Company, Appellee, v. Leo Kaul, trading as The Lipman Supply House, Appellant.
    Gen. No. 22,984.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 5

       — when Appellate Court will not take judicial notice of rules of. The Appellate Court will not take judicial notice of the rules of the Municipal Court of Chicago, and no effect can be given such rules unless they be preserved in a bill of exceptions.

      Appeal from the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action by Warren Jewelry Company, plaintiff, against Leo Kaul, trading as The Lipman Supply House, defendant, to recover for goods sold and delivered. From a judgment for plaintiff for $669.88, defendant appeals.
    Teller, Hart & Pennish, for appellant; Carroll A. Teller, of counsel.
    Moses, Rosenthal & Kennedy, for appellee.

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

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

   Mr. Justice Dever

delivered-the opinion of the court.

2. Appeal and error, § 27 — what must he preserved hy hill of exceptions. The action of the trial court in striking an affidavit of merits from the files cannot be reviewed unless the motion to strike such affidavit of merits from the files is preserved by the bill of exceptions.

3. Municipal Court of Chicago, § 13* — when affidavit of merits in action to recover for goods sold and delivered is insufficient. In an action in the Municipal Court of Chicago to recover for jewelry sold and delivered where the statement of claim stated that defendant was indebted to plaintiff for goods sold and delivered during a certain period, an affidavit of merits stating that the goods delivered to defendant were worthless to him, that he could collect nothing for the same from his customers, and that “the crosses were causing him considerable trouble,” etc., held to be insufficient. o

4. Municipal Court of Chicago, § 13* — when statement of set-off in action for goods sold and delivered is insufficient. In an action in the Municipal Court of Chicago to recover for goods sold and delivered during a certain period, a statement of set-off relating to several items of damage to defendant by reason of the alleged inferior quality of the goods sold to him by plaintiff and which did not appear to be in any way connected with or the result of the transaction with plaintiff, held to be insufficient.


text:
    Edward Lange and Charles Witthaeger, Appellants, v. George Busse and Charles Roeske, Appellees.
    Gen. No. 22,998.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Roads and bridges, § 21

       — what is important in determining establishment of way by prescription. Where it is claimed that a public highway has been established by -prescription and it is doubtful whether the user over the land has been adverse, it is important to ascertain how the public authorities have treated the roadway generally.
    2. Roads and bridges, § 21* — when fact of shifting in roadway is not decisive in determining establishment of prescriptive way. The fact that there has been some shifting in a roadway over private land to avpid holes therein, growing trees and the like, is not decisive in determining the establishment of a way by prescription where at the particular point in question the use has been continuous.

      Appeal from the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action of trespass by Edward Lange and Charles Witthaeger, plaintiffs, against George Busse and Charles Roeske, defendants, to recover for the destruction of a gate placed by plaintiffs on land which was claimed by defendants to be a public highway, but which plaintiffs asserted was owned by them. From a judgment for defendants, plaintiffs appeal.
    Walter J. Miller and Henry J. Harz, for appellants.
    Rathje, Lawlor & Connor, for appellees; Edwin D. Lawlor, of counsel.

      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. Justice Dever

delivered the opinion of the court.

3. Roads and bridges, § 11 — when public highway is established by prescription. Before a public highway is established by prescription, its public use must be shown to have been adverse, uninterrupted, exclusive, continuous and under claim of right.

4. Roads and bridges, § 23* — when evidence is sufficient to show user of highway to be adverse, uninterrupted, exclusive, continuous and under claim of right. Evidence held sufficient to show that the permissive use for Over fifteen years of a way over private land for the purpose of frequently hauling gravel from a gravel pit and for access to two farms at a point where a gate had been erected had been adverse, uninterrupted, exclusive, continuous and under a claim of right, even though the use of other portions of the way had not been continuous and the road had been shifted from point to point.


text:
    Louis Lowenthal, Plaintiff in Error, v. Teresa Williams, Defendant in Error.
    Gen. No. 23,003.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Stele, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed July 2, 1917.
    Statement of the Case.
    Action in replevin by Louis Lowenthal, plaintiff, against Teresa Williams, defendant. From a judgment for defendant, plaintiff brings error.
    Shulman & Shulman and Meyer Abrams, for plaintiff in error.
    Miles J. Devine, for defendant in error.

      Abstract of the Decision.
    Municipal Court of Chicago, § 31

       — when judgment affirmed. In the absence of a bill of exceptions preserving the questions relied upon for a reversal, a judgment of the Municipal Court of Chicago must be affirmed.

      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.