text:
    Emil C. Wetten, Appellant, v. Carl Horix, Defendant. Clicquot Club Company, Appellee.
    Gen. No. 40,770.
    Opinion filed April 15, 1941.
    Rehearing denied May 5, 1941.
    Wetten, Pegler & Dale, of Chicago, for appellant; Greydon L. Walker, of Chicago, of counsel.

      John H. Passmore, of Chicago, for appellee; James Walker Milne, of Chicago, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

Judgment for $4,724.50 was entered by confession in favor of plaintiff, Emil C. Wetten, and against the defendant Carl Horix. Execution was served upon defendant by the sheriff and returned “No property found and no part satisfied.” Plaintiff filed an affidavit in garnishment and caused a summons in garnishment and interrogatories to be served on the garnishee, Clicquot Club Company. The garnishee filed an amended answer to the interrogatories. Plaintiff filed a traverse of said answer. The garnishee filed a written motion to strike plaintiff’s traverse and to dismiss the garnishment proceeding and discharge the garnishee. Although the trial court denied the motion to strike plaintiff’s traverse, it entered an order allowing the motion to dismiss the garnishment proceeding and discharge the garnishee. This appeal is from that order.

Of the interrogatories filed by plaintiff it is only necessary to consider the “7th,” which is as follows: “ ‘Had you at the date of the service of the said writ any contract or agreement with said Carl Horix providing for the payment of any royalties by you to him? If so, describe the same fully, giving the amount of said royalties, the time or times when they shall become due and payable, and describe the same fully and particularly.’ ”

The amended answer of the garnishee to the foregoing interrogatory alleged substantially that a contract was entered into between the garnishee and Horix on December 4, 1936, which required the garnishee under certain conditions to pay royalties to the judgment debtor and that the garnishee did pay thereunder a total of approximately $3,000 in royalties; and that thereafter the garnishee discovered that it had been defrauded by Horix in that he had induced it to enter into the contract by making false representations of material facts, which he knew to be untrue. The alleged misrepresentations were then set forth fully and with particularity.

The answer further alleged that “a certain supposedly secret formula, to which defendant claimed to have the sole right and which by the agreement he purported to license to the garnishee, was worthless and that the defendant did not have the sole right to such formula”; that the garnishee, relying upon the said false representations, entered into the agreement and as a result of defendant’s said fraud suffered great losses; that when the garnishee discovered that “it had been imposed upon and defrauded by the said Carl Horix, as above set forth, it thereupon cancelled the said supposed contract and declared it to be void from the beginning.”

The answer then alleged the considerations which the garnishee was to receive from the defendant under the terms of said agreement; that “the defendant failed and refused to deliver any of the said considerations to the garnishee”; and that the garnishee “is not and never has been bound under or by reason of the said memorandum of agreement. ’ ’

Under the royalty contract, which was attached to and made a part of its amended answer, the garnishee was granted by defendant an exclusive license under certain letters patent and under a certain trade-mark to manufacture and sell a beverage covered by said patent and defendant agreed to furnish certain assistance in the equipment of the garnishee’s plant. The contract provided that the garnishee would pay defendant a royalty on the number of bottles of the beverage manufactured and sold by it, “the minimum royalty” to be $3,000 a year during the life of the patent.

Plaintiff’s traverse of the garnishee’s amended answer is as follows:

The plaintiff denies that the defendant Carl Horix made any false or fraudulent representations to the garnishee for the purpose of inducing it to enter into the written contract set out in the Amended Answer, and denies that the garnishee relied upon any false or fraudulent statements of said defendant Carl Horix in entering into" said contract, and denies that the garnishee has ever for any reason cancelled said supposed contract or declared it to he void.
“Plaintiff denies that the defendant Carl Horix has in any manner "breached or failed or refused to perform the provisions of the agreement set out in the Amended Answer of the garnishee.
“Plaintiff says that the Clicquot Club Company, garnishee, has not truly discovered the money, choses in action, credits and effects in its possession, custody or charge, or from it due and owing to the defendant at the time of the service of the writ or at any time thereafter, or which shall or may thereafter become due. . . .”

Plaintiff’s theory is that “he was and is entitled to a trial on the merits as to the truth or falsity of the garnishee’s answer to the seventh interrogatory, the questions of fact to be tried being specifically those raised by the allegations in the amended answer of fraud and breach of contract”; and that “under the amended answer and the contract, the indebtedness of the garnishee to the defendant Carl Horix, if any exists, was both definite and liquidated, and that the question as to whether any such liability exists was one which the garnishment court had both the power and the duty to try.”

The theory of the garnishee, as stated in its brief, is “that the allegations contained in the Garnishee’s Amended Answer and in the Plaintiff’s Traverse raised issues of fact which could not lawfully be tried nor determined in a garnishment proceeding — that the court had no jurisdiction to try these issues in a garnishment case. That they could be tried only in a suit directly between the judgment debtor, Carl Horix, and the garnishee, Clicquot Club Company. The remedy of garnishment is statutory and hence can be used only in those cases which come within the statutory provisions. When the pleadings in a garnishment case raise only the question as to the amount owed by the garnishee to the defendant, that question can be determined in the garnishment proceeding; but when the garnishee’s answer denies the existence of the contract upon which the supposed indebtedness depends, and pleads facts which make any such indebtedness uncertain, unliquidated, and contingent, the issues thus raised cannot be tried in a garnishment proceeding.”

A judgment creditor may pursue his remedy in garnishment for any indebtedness of the garnishee to the judgment debtor which is a definite certain obligation. Plaintiff: insists that the judgment debtor and the garnishee entered into a valid contract under the terms of which the latter was bound to pay the former $3,000 a year minimum royalties and that this amount was neither contingent nor unliquidated. The garnishee admits the execution of the contract but claims in its answer that it was procured by fraud and that there was a total failure of consideration. It is idle for the garnishee to urge that merely because its answer alleged fraud and failure of consideration that the court was thereby deprived of jurisdiction to try the issues of fact raised by such answer and plaintiff’s traverse thereof, which specifically challenged the truth of said answer. The issues of fact both as to fraud and total failure of consideration are clear cut and well defined and must be determined not on the pleadings but by the evidence produced upon the hearing on the issues raised by such pleadings.

Inasmuch as the garnishee asserted in its answer that it had canceled the contract prior to the time it was served with process, there can no longer be any question of contingency in regard to same since a contingent claim is one where liability hinges upon some future event which may or may not occur. According to the answer of the garnishee everything had already occurred that could have possibly affected the rights of the parties to the contract.

The indebtedness from the garnishee to the judgment debtor sought to be garnisheed is the.definite sum of $3,000 a year during the life of the patent and that sum accrued without contingency each year unless the garnishee is able to prove that the contract in question was procured by fraud or that there was a total failure of consideration for same. We perceive no reason why the issues raised by the pleadings cannot be tried just as well in this garnishment proceeding as in an action brought directly by Horix against the garnishee. If plaintiff were not permitted to proceed with this garnishment proceeding and is compelled to await the outcome of a suit by defendant against the garnishee, in all probability he would be deprived of the benefit of any rightful claim he may have against the garnishee. The defendant might never sue the garnishee. He might settle with the garnishee. If he did sue and recover a judgment against the garnishee, such judgment might be paid before plaintiff was able to procure any benefit from it.

We think that plaintiff’s claim clearly comes within the purview of the Garnishment Act (ch. 62, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.284 et seg.]), and that the issues of fact raised by the pleadings may be properly tried in a garnishment proceeding.

The recent case of Zimek v. Illinois National Casualty Co., 370 Ill. 572, is squarely in point and decisive of the questions presented here. There the court said at pp. 575, 576, 577:

“The contention of the casualty company is that the claim against it is not subject to garnishment because it is contingent and unliquidated. The statute permits garnishment process against any person ‘ supposed to be indebted’ to the judgment debtor. (Ill. Rev. Stat. 1937, chap. 62, par. 1.) This court has recognized the general rule that the indebtedness sought to be garnisheed must be a liquidated sum due without contingency at the date when the answer to the garnishment suit is filed. (Wheeler v. Chicago Title and Trust Co., supra; Capes v. Burgess, 135 Ill. 61.) Usually it must be a claim on which the judgment debtor, himself, could have maintained an action against the garnishee. (Shinn on Attachment and Garnishment, secs. 475-483; 28 Corpus Juris, p. 44.) In the present case it is said the claim is contingent because the casualty company denies that it is liable to Zimek under the terms of the policy of insurance. But defendant misconceives the nature of a contingency contemplated by the rule. A contingent claim is one where liability hinges upon some future event, which may or may not occur; it is dependent upon some condition as yet unperformed. (Grand Lodge I. O. O. F. v. Troutman, 103 Pac. (Kan.) 94.) Here, whatever right Zimek has against the company has vested; all the events which can fix the garnishee with liability have taken place. It only remains to be determined whether those events make the casualty company liable to Zimek. This issue may properly be decided by garnishment proceedings. When the garnishee denies liability, one of the qbjects of the garnishment suit is to ascertain whether there is a debt due from the garnishee to the judgment debtor. (Fentress v. Rutledge, 125 S. E. (Va.) 668.) Thus, the denial of liability by the garnishee does not create a contingency which will prevént garnishment. If we held otherwise, garnishment process by a creditor could be defeated in every case by the garnishee’s denial of indebtedness to the judgment debtor. Neither is the claim against the garnishee unliquidated. . . . Where the amount due may be ascertained by computation or reference to the contract out of which the claim arises it is a liquidated claim for purposes of garnishment. 28 Corpus Juris, p. 136; Capes v. Burgess, supra [135 Ill. 61].
. . The company insists that because Zimek would have had to sue on the contract of insurance instead of bringing an action of debt or indebitatus assumpsit, garnishment proceedings cannot be invoked. But the form of action in which the judgment debtor could have recovered from the garnishee can make no difference here, so long as the indebtedness of the garnishee is liquidated and not contingent upon a future event. A determination of whether an action of debt or indebitatus assumpsit will lie against the garnishee is merely a convenient test to ascertain whether the claim is liquidated and not contingent. In Capes v. Burgess, supra, where we had occasion to refer to such a test, we held the claim was unliquidated and for that reason could not be garnisheed. ’ ’

We have read and carefully considered the authorities cited by the garnishee but we do not feel that it would serve any useful purpose to discuss them, since they are either readily distinguishable or entirely inapplicable on the facts.

For the reasons stated herein the judgment order of the superior court dismissing the garnishment proceeding and discharging the garnishee is reversed and the cause remanded with directions to try the case upon its merits.

Judgment order reversed and cause remanded with directions. °

Friend, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice John J. Sullivan

license: Public Domain

text:
    Jeanette Greenberg, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 40,981.
    Opinion filed April 15, 1941.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant; Ira W. Hurley and Albert E. Hallett, Jr., of Chicago, and Nathaniel Rubinkam, of counsel.
    Ehrlich & Cohn, of Chicago, for appellee; Aaron H. Cohn, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This is an action at law on four insurance policies issued by the defendant company on the life of Herman C. Greenberg. A trial by the court without a jury resulted in a finding in favor of the plaintiff beneficiary, Jeanette Greenberg, in the sum of $21,056.59 and judgment was entered on such finding. This appeal followed.

Plaintiff’s amended complaint contains five counts, each of which deals with a separate insurance policy. Count number two was withdrawn so that the case was tried upon counts one, three, four and five. Counts one, four and five, relating to policies 5071700-A, 5425420-A and 4623686-A, respectively, involve insurance policies in the sum of $5,000 each, all of which included a supplemental contract providing for waiver of premiums and payment of monthly income indemnities upon due proof being received by the defendant company of the total and permanent disability of the insured. Policy number 5994387-A, set forth in count three, is in the sum of $4,415 and contains no supplemental contract. With regard to counts one, four and five (the policies containing supplemental contracts) the complaint alleges that premiums were paid by the insured up to and including the year 1932; that all premiums on said policies for the year 1933 and subsequent years were waived by defendant and that the insured was not obligated to make payment thereof because of his alleged total and permanent disability; and that defendant had at the time of the due date of each of said premiums and still has in its possession money to which the insured was entitled, amounting to more than the amount of said premiums.

With regard to count three it is alleged that the insured within the periods specified in the policy paid defendant the amount of each annual premium required to be paid from the time of the issuance of said policy to the death of the insured and that defendant had at the time of the due date of each of said premiums and- still has in its possession money to which the insured was entitled, amounting to more than the amount of said premiums. Plaintiff asked judgment for $5,000, together with interest from April 27, 1936, under count one; for $4,415 with interest from the said date under count three; for $5,000 with interest from the same date under count four; and for $5,000 plus interest from the same date under count five.

Defendant as to counts one, four and five admitted in its answer the issuance of the policies and the death of the insured on April 27, 1936, but denied that the premiums due on the policies were paid to and including the time of the death of the insured and also denied that the premiums subsequent to the year 1933 were waived under the terms of such policies. Defendant further denied that the insured on February 13, 1933, became “totally and permanently disabled, so as to be prevented thereby from engaging in any occupation or performing any work for compensation or profit” as provided by the policy contracts. It was then denied that the insured delivered to defendant due proof of his total and permanent disability as provided by the terms of the policies and averred that the insured never became entitled to total and permanent disability benefits under said policies or to the waiver of premiums on account of any alleged disability.

Defendant’s answer further averred that policy No. 5071700-A mentioned in count one lapsed for failure to pay the premium due September 20, 1934; that policy No. 5425420-A mentioned in count 4 lapsed for failure to pay the premium due July 13, 1934, and in addition thereto at the request of the insured the defendant company purchased said policy for its cash surrender value of $16.03 and thereby the insured forever discharged the defendant from any and all liability under said policy; that policy No. 4623686-A mentioned in count 5 lapsed for failure to pay the premium due June 28,1934. As to policy No. 5994387-A defendant averred that said policy lapsed on July 10, 1934, for failure to pay the semi-annual premium due on said date and in addition thereto at the request of the insured the defendant company purchased said policy for its cash surrender value of $53.94 and thereby the insured forever discharged defendant from any and all liability under said policy. Defendant specifically denied that any of said policies were in force at the time of the death of the insured on April 27, 1936.

Plaintiff filed a reply to defendant’s answer, which alleged that the check of defendant company issued to the insured for $53.94 as the cash surrender value of policy No. 5994387-A and a similar check in the sum of $16.03 on policy No. 5425420-A were considerably less than the true and correct full cash surrender values of said policies and that the acceptance thereof and the surrender of said policies for cancellation by the insured did not release or discharge the defendant of its obligation to pay the full amount of said policies. No questions are raised on the pleadings.

Defendant’s theory, as stated in its brief, is “that Herman 0. Greenberg, the insured, was not totally and permanently disabled within the meaning of the language of the policy on February 13, 1933 or at any time thereafter; that he was obligated to make payment of premiums on the policies sued on and failed to do so as and when they became due and that by reason thereof all of said policies lapsed and were of no force or effect at the time of his death, and in addition thereto policies Nos. 5994387-A and 5425420-A at the request of the insured were purchased for their cash surrender values and the insured thereby released and forever discharged the defendant company from any and all liability thereunder.”

The insured met with a severe injury on February 13, 1933, which necessitated hospitalization, an operation and confinement to his home for a long period of time. Three of the policies upon which this action is predicated include a supplemental contract which contained the following, among other provisions:

“Metropolitan Life Insurance Company
C C
“Hereby agrees, that upon receipt by the Company at its Home Office in the City of New York of due proof . . . that the insured has, while said Policy and this Supplementary Contract are in full force . . . become totally and permanently disabled, as the result of bodily injury or disease occurring and originating after the issuance of said Policy, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, and that such disability has already continued uninterruptedly for a period of at least three months, it will, during the continuance of such disability,
“1. Waive the payment of each premium falling due under said Policy and this Supplementary Contract, and,
“2. Pay to the insured . . . a monthly income of $10 for each $1,000 of insurance . . . under said Policy.”

On or about May 27, 1933, which was more than three months after his injury, the insured forwarded to defendant his claim for total and permanent disability benefits under the foregoing provisions of the said three policies. His claim was rejected by the insurance company on the ground that the proofs submitted did not show that the insured was prevented as a result of his injury from engaging in any occupation and performing any work for compensation or profit.

All premiums had been paid by the insured on the four policies upon which this suit is based up to and including 1933. No premiums were thereafter paid on any of the policies prior to the death of the insured on April 27, 1936. Plaintiff as the beneficiary under the four policies, having furnished due proof of the death of the insured, asked in her complaint for judgment for the principal amount of each of said policies with interest from the date of the death of her husband.

We think that the basic question in this case is whether the three policies containing the provisions pertaining to total and permanent disability were in force and effect when the insured died or whether said policies had lapsed because the premiums due thereon in 1934 and 1935 were not paid.

Plaintiff’s position on this question is that the claim of the insured that he was totally and permanently disabled should have been allowed by defendants, that because of his disability within the terms of said policies he was entitled to the benefits specified therein in the way of waiver of premiums and monthly income payments and that, since defendant failed to waive said premiums and to make such monthly payments, which the insured should have received commencing as of the date of his injury on February 13, 1933, the insurance company had in its possession on the due dates of the premiums for 1934 and 1935, and still has in its possession in the form of unpaid disability payments owing to the insured, more money in the aggregate than the amount of the premiums due in 1934 and 1935, which money so withheld should have been applied toward the payment of said premiums. As to the policy which did not contain the disability provision plaintiff claims that defendant had at the time when the premiums were due thereon in 1934 and 1935, sufficient money in its possession belonging to the insured in the form of unpaid disability payments on the other three policies to pay said premiums and that it should have been applied to the payment of same.

In short plaintiff contends that where a'fund is due from an insurer to the insured it must legally apply this fund to the payment of premiums as they fall due so as to avoid the lapse of the policy.

In support of plaintiff’s position she cites Leach v. Federal Life Ins. Co., 296 Ill. App. 88; American Nat. Ins. Co. v. Yee Lim Shee, 104 F. (2d) 688; Kern v. Western Life Indemnity Co., 192 Ill. App. 96; Supreme Lodge Order Mut. Protection v. Meister, 204 Ill. 527; 32 Corpus Juris, 1308. These authorities all dealt with situations where the insurance company had in its hands a fund or money belonging to the policyholder which was “absolutely due,” “absolutely due and payable,” “presently payable,” “due and payable, ’ ’ or which it admitted and acknowledged it owed the insured.

In the Leach case it was undisputed that the disability payments were in fact due the insured before the date of the alleged lapse and that they greatly exceeded the premiums due. Four days after the date of said alleged lapse the company sent the insured its check for $310 and the insured immediately forwarded to the company his personal check for $110.50 to cover the premiums. The insurance company returned this check immediately, notifying the insured that his policy had lapsed. Upon the insured’s complaint in equity to reinstate the policy the court held under these facts that he was entitled to reinstatement, saying at p. 95 of its opinion: “It is significant that the claim was allowed and the check for the amount of same forwarded four days after the expiration of the grace period for the payment of the premium in question and defendant’s ‘hesitation’ in approving and paying the claim is also highly significant in the light of its attempt to forfeit the policy.” In American Nat. Ins. Co. v. Yee Lim Shee, the policy modified the disability clause by providing that in addition to all other causes of disability the company would consider the loss of the sight of both eyes as total and permanent disability. It was undisputed that the insured lost the sight of both eyes. The court therefore held that the fund was absolutely due and required its application to the payment of premiums. The case of Kern v. Western Life Indemnity Co. involved only the application of the admitted value of a present policy to the purchase of extended insurance under the policy contract. Supreme Lodge v. Meister was a case in which a double payment of premiums had been made, leaving an excess in the hands of the company which was premium money and which the company was bound to apply for that purpose. The citation from Corpus Juris is in the following language: “Where the company has in its hands a fund absolutely due and payable to the insured before the date upon which his premium becomes due, the company should apply such funds if necessary to avoid a forfeiture.” Thus the insurer is required to apply a fund in its hands toward the payment of premiums when such a fund is absolutely due and payable to the insured.

It is obvious that the foregoing authorities are applicable only to a situation where the insurance company has in its possession belonging to the insured and absolutely and presently payable to him, a fund sufficiently large to cover the payment of premiums due before the policy lapsed. An entirely different situation is presented in the instant case. Here the claim of the insured for total and permanent disability benefits was promptly denied and has ever since remained in dispute. Although the insured did not die until more than three years after his injury, he made no effort during his lifetime to have his right to disability benefits determined.

The precise question under consideration under a practically identical factual situation was presented and determined in Vick v. Illinois Banker’s Life Ass’n, 276 Ill. App. 432. In that case the insured had two policies of insurance which provided that upon satisfactory proof that he had become totally and permanently disabled from any cause and would thereby continuously be prevented during Ms lifetime from doing any labor or prosecuting any Mnd of business, the insurance company would pay half of the face of the policy to the insured and the remainder to his beneficiary upon his death. On May 7, 1929, the insured submitted claim for total and permanent disability payments, asserting that she had become disabled on May 1, 1928. The company denied liability on the proofs submitted. The insured died on June 4, 1932, and the beneficiary made claim for the amount provided in the policies. The insurance company defended on the ground that the policies had lapsed for nonpayment of premium. No premiums had been paid after July, 1929. The plaintiff in that case made the same contention as is made by the plaintiff here. Judgment was entered in favor of plaintiff upon the verdict of a jury. There the court in reversing the judgment said at pp. 436, 437:

“Were these policies properly declared lapsed! If they were, this lawsuit is ended. They undoubtedly were lapsed, unless, as appellee claims, there was money in the hands of appellants belonging to the assured which appellants could and should have applied to the payment of such premiums on these policies as was necessary to keep them alive.
“Forfeitures are not favored in Illinois and will not be upheld in contracts for insurance if by reasonable construction such result can be avoided. Bolton v. Standard Life Ins. Co., 219 Ill. App. 177; Glassman v. Lescht, 318 Ill. 128. This is the law of the State but this does not mean that courts are to put unreasonable interpretations upon insurance contracts and thus deprive insurance companies of substantial rights inuring to them under the law, their charters and their contracts. No assessments were paid by the assured or by appellee after July, 1929. In May of that year the assured had made her claim for total and permanent disability. On May 29th of that year said claim had been denied. This left an open question whether appellants had funds in their hands belonging to the assured. The assured seemed to take for granted that appellants were indebted to her. It seems that it would have been the part of wisdom to have kept on paying her assessments until it was finally determined whether the company was indebted to her. This she did not do.”

We are of opinion that, since the right of the insured to the disability benefits provided for in the three afore-mentioned policies was disputed and undetermined, defendant was under no obligation to waive the payment of the premiums due on such policies and that the insured had no right to expect the insurer to pay his premiums or to rely upon it to do so. Neither was the insurance company obligated under the circumstances to make the monthly disability payments to the insured as provided in said policies.

We are impelled to hold that the four policies here involved lapsed for nonpayment of the premiums due thereon in 1934, that there were no funds admittedly and absolutely due from defendant to the insured when said premiums fell due which it should have applied to avoid lapsation of the policies and that therefore plaintiff is not entitled to recover.

In the view we take of this case we deem it unnecessary to discuss the other points urged.

The judgment of the circuit court is reversed.

Judgment reversed.

Friend, P. J., and Scanlan, J., concur.


author: Mr. Presiding Justice Wolfe

text:
    The County of Winnebago, Appellee, v. The Town of Shirland, Appellant.
    Gen. No. 9,576.
    Opinion filed February 7, 1941.
    Rehearing denied May 7, 1941.
    Stanley H. Guyer, of Rockford, for appellant.
    Robert E. Nash, State’s Attorney, for appellee; Roy F. Hall, of Rockford, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

The county of Winnebago brought suit in the circuit court of Winnebago county, against the Town of Shirland, to recover for the care of a pauper, under sec. 40, ch. 107, Smith-Hurd Ill. Rev. Stat., which is commonly called the Pauper Act. The suit was to recover from the Town of Shirland, the cost of maintaining Elmer Deuel in the County poorhouse of Winnebago county, from January 1, 1933, to May 31, 1939. The complaint alleges that Elmer Deuel was a resident of the Town of Shirland and consequently, that said town was responsible for his support. The defendant filed its answer and denied that Elmer Denel was a pauper at the time he was admitted to the poorhonse and denies any duty on the part of the defendant to pay for Deuel’s support and maintenance in said poorhouse. The answer of the defendant further alleges that on September 28, 1932, a complaint was filed in the county court of Winnebago county, Illinois, against Eva Wilson to compel her to support her brother, Elmer Deuel; that an order was entered in said cause requiring the said Eva Wilson to contribute $5.25 a week to the support of the said Elmer Deuel. It is further alleged that the said Eva Wilson failed and refused to comply with said order; that a citation was issued out of the county court of said county for the said Eva Wilson to show cause why she should not be punished for contempt of court for failure to support her brother, as ordered by said court. No action was taken on this citation.

The question raised by the pleadings is: Was Elmer Deuel a pauper within the meaning of the Pauper’s Act, to the extent of constituting a public charge upon the Town of Shirland under said act. The trial court found that Elmer Deuel was a pauper and the Town of Shirland was responsible to the County of Winnebago for his support and maintenance and rendered judgment in favor of the plaintiff for $1,254.99 and assessed the costs of the suit against the Town of Shir-land. It is' from this judgment that the appeal is prosecuted.

That the County of Winnebago supported and maintained Elmer Deuel at the county poorhonse for the time alleged in their complaint, is not disputed. There is some dispute in regard to the conversation that is alleged to have taken place between the supervisor of the Town of Shirland and the overseer of the county poorhonse. If the trial court considered this conversation material to the issues in the case, he has decided the question against the defendant. He had the advantage of hearing and seeing the witnesses as they testified, and we cannot say that this finding of the trial court is against the manifest weight of the evidence.

The Town of Shirland seriously contends that because there had been an order in the county court of Winnebago county requiring the sister of the pauper to care for and maintain him, the Town of Shirland was relieved from the responsibility of maintaining him. It is undisputed that the sister wholly failed to comply with the county court order and that Elmer Deuel was taken to the county poorhouse and maintainéd there at the county expense. The appellant has cited numerous cases which hold that where paupers have relatives who are financially able to support and maintain them when appropriate action is taken, these relatives may be required to furnish such support, but the appellant has cited nothing which holds, as it contends that there is no duty resting upon the township to support a pauper when the relatives have failed to comply with the order and to furnish such support. A town cannot be relieved of its liability for the support of its paupers in this manner. In the case of Mappes v. Board of Sup’rs of Iowa County, 47 Wis. 31, 1 N. W. 359, a case decided by the Supreme Court of Wisconsin, it is disclosed that the State of Wisconsin has a pauper act nearly identical with ours. In the Mappes case, the pauper had two sons who were able, financially, to support and maintain their mother, and an order of court had been entered requiring them to. make weekly contributions for her support and maintenance. This, they failed to do and the mother was taken to the county poorhouse and maintained there for several years. The court, in discussing the merits of the controversy, uses this language: “The statute clearly imposes the obligation upon every town of relieving and supporting all poor and indigent persons, having a lawful settlement therein, whenever they shall stand in need of such support. The law is founded upon the humane idea that a poor person has a right to live, and when one, through age, disease, or misfortune, is unable to procure the means of bodily subsistence, he shall not die from want or exposure, but that the property of the town, in which he resides, shall be chargeable with the expense of his maintenance. The intent and policy of the law upon this subject are too plain to require comment.”. . .

' ‘ The learned attorney for the county insists that it clearly appears from the evidence that Mrs. Clayton, while she was an inmate of the county poor-house, was supported there in pursuance of a contract between her sons and the county authorities, and that the effect of this arrangement was to relieve the county from all responsibility of providing for her maintenance. We do not so understand either the facts or the law of the case. The statute contains provisions by which certain persons, having sufficient ability therefor, may be compelled to support in part or wholly their poor relatives. This is a compulsory proceeding to enforce what is deemed a natural duty, but it does not amount to a contract. It is a remedy in aid of a public liability —proper and just enough, but does not relieve the public of its obligation to support its paupers. For, as we have said, the intent of the statute is to guard against the danger of anyone unable to support himself being left without the very means of sustaining life. Hence, the law wisely and humanely imposes upon the public the burden of providing for the necessities of its poor and destitute. But the fact that the law affords means of enforcing compulsory assistance from relatives in certain cases, does not take away the responsibility of the public in the matter. The primary obligation remains — in this case upon the county — notwithstanding a remedy is afforded to enforce contribution on the part of the relatives. And, therefore, to our minds, the evidence is conclusive that Mrs. Clayton was a pauper, if there ever was one, and her support was chargeable upon Iowa County, and the fact that her sons were made to contribute in aid of the county burden did not, and could not, relieve the county from its liability to provide for her support.”

The language used by the learned court in Mappes v. Iowa County, supra, is very applicable to the facts and law in this case, and it is our opinion that the trial court properly held that Elmer Deuel was a pauper and that he was a proper charge on the Town of Shir-land. The order of the county court, ordering Mrs. Wilson to care and maintain her brother, and her failure to do so, does not relieve the Town of Shirland from its responsibility in this matter.

The judgment of the trial court will be affirmed.

Affirmed.


author: Mr. Justice Dove

text:
    Edward D. Brown, Appellee, v. Walter A. Nelson and Minnie E. Nelson, Appellants.
    Gen. No. 9,580.
    Opinion filed April 12, 1941.
    Rehearing denied May 7, 1941.

      F. B. Brian and J. E. Richards, both of Toulon, for appellants.
    Frances E. Spooner, of Chicago, and Sturtz & Ewan, of Kewanee, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

On November 24,1926, Walter A. Nelson and Minnie E. Nelson, his wife, executed a note for $23,000 payable to the order of the John Hancock Mutual Life Insurance Company, and secured its payment by a mortgage upon 160 acres of land in section 21, and 80 acres of land lying across the road in section 28, all in township 14, Henry county, Illinois. The land in section 21 was improved by a dwelling occupied by the mortgagors as their home, and other farm buildings were located upon the 160 acre tract.

On September 11, 1930, Edward D. Brown recovered a judgment in the circuit court of Henry county against the said Walter A. Nelson and Minnie E. Nelson, upon which an execution issued, which was shortly thereafter returned unsatisfied. On March 1, 1932, Walter A. Nelson and Minnie E. Nelson executed and delivered to the Insurance Company an instrument spoken of in this record as a certificate of "entry. This instrument was duly acknowledged and on April 4, 1932 filed for record. It recited the execution of the note and mortgage to the Insurance Company, that the mortgagors had defaulted in making the stipulated payments of principal, interest and taxes, and that upon the demand of the Insurance Company, they had vacated the premises described in said instrument and surrendered peaceful possession thereof to the Insurance Company, and had assigned and transferred all their right, title, and interest in the growing crops upon said premises to said Company. On the day this instrument was executed and as a part of the same transaction the Insurance Company entered into a written lease with the said Walter A. Nelson by the provisions of which it leased to him on a crop and cash rental basis, the farm from March 1, 1932 to February 28, 1933. During the next ensuing 6 years a new lease was annually entered into and the Nelsons continued to live upon the premises, and operated the farm in substantially the same manner as they previously had done. On July 10, 1936, an alias execution was issued upon the judgment of September 11, 1930, rendered in favor of Edward D. Brown which was levied upon this 240 acres of land. Thereafter, the premises were duly advertised and offered for sale, and at the sale on January 15, 1938, Edward D. Brown bid them in for $8,000 and received a certificate of purchase therefor.

On November 7, 1938, upon motion, the original cause in which judgment was rendered against the Nelsons in favor of Brown was redocketed, and the Nelsons filed their motion to set aside the sale of January 15, 1938 and to hold for naught the said certificate of purchase issued to Brown. Upon a hearing, this motion was denied, and from that judgment order, the judgment debtors, Walter A. Nelson and Minnie E. Nelson appeal.

The record discloses that appellants purchased the 160 acres of land upon which they resided in 1913 and the 80 acres across the road in 1926. That when the premises were sold in January 1938 by virtue of the execution issued tin appellee’s judgment, they were not sold subject to any homestead rights, and prior to the sale no homestead estate was set off to appellants. It further appears that the 160 acre tract ivas occupied by appellants as their homestead at that time, and had been continuously for 26 years. While the certificate of entry executed by appellants on March 1, 1932, recites that they had vacated the premises and surrendered peaceable possession thereof to the Insurance Company, they continued in possession thereof after the execution of that instrument the same as before, and notwithstanding the execution by them of the several leases to the Insurance Company, they never paid rent to the Insurance Company, but continued to pay interest on their note, secured by the mortgage which the Company continued to hold. On April 1, 1939, this certificate of entry was, by the Insurance Company, duly released of record. This release recited that the Insurance Company was the present owner and holder of the original indebtedness secured by the mortgage of November 24, 1926, and that the note evidencing that indebtedness had been extended by an instrument dated December 17, 1937, and that the rights and interests of the Insurance Company under its original mortgage and extension agreement were in no way affected or impaired.

'Appellants contend that it was the duty of appellee to set off to them their estate of homestead before proceeding to sell the premises they occupied by virtue of the execution on appellee’s judgment and not having done so that the sheriff’s sale thereof was void.

Under the provisions of our statute, every householder having a family, shall be entitled to an estate of homestead, to the extent in value of $1,000, in the farm and buildings thereon owned or rightly, possessed, by lease or otherwise, and occupied by him as a residence, and such homestead and all right and title therein shall be exempt from attachment, judgment, levy or execution sale for the payment of his debts. Chapter 52, sec. 1, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.124]. If, in the opinion of the creditor or officer holding an execution against said householder, the premises claimed by him or her as exempt are worth more than $1,000 such officer shall summon three householders, as commissioners, who shall upon oath to be administered to them by the officer, appraise said premises; and if, in their opinion, the property may be divided without injury to the interest of the parties, they shall set off so much of said premises, including the dwelling house, as in their opinion shall be worth $1,000, and the residue of the said premises may be advertised and sold by such officer. Chapter 52, sec. 10, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.133],

Starczewski v. Toman, 296 Ill. App. 602, was an action by judgment debtors against the sheriff of Cook county to recover from him the value of their homestead estate to the amount of $1,000 which the sheriff had sold on an execution against them. The court commented upon the provisions of the statute creating the estate of homestead, reviewed several cases and stated that the sum and substance of all of the cases seemed to be that the sale of a homestead worth less than $1,000 is absolutely null and void, but that the statutory provisions as to how an estate of homestead may be involuntarily extinguished in premises worth more than $1,000 are directory and not mandatory; that while the sale of the premises subject to the homestead where the value of the same is more than $1,000 will not vest a legal title in the purchaser, it does give an equitable right which will be recognized in equity upon the payment to the owner of the value of the estate of homestead to the amount fixed by the statute; that redeeming creditors stand in the shoes of the purchaser at the first sale, and take his right, title and interest, and nothing more; that their rights and the rights of the judgment debtors can be adjusted only in a proceeding in equity; that the purchaser could not maintain a suit at law in ejectment or forceable detainer against the owner of a homestead estate, nor could the owner of such homestead estate maintain a suit at law against the sheriff to recover a part of the proceeds of the sale; that the owners of the homestead estate have not been deprived of their homestead but that they still occupy it and still have title to it. The court said that if it be assumed that the sale was good, it was made subject to their homestead rights, if it was void, their rights have not been affected in any way; that they could not recover the price of their homestead and hold and occupy it at the. same time, and that while the law favors the owner of a homestead, it does not favor him to the extent of requiring the homestead to be paid for when it has not been taken. The court quoted from Leupold v. Krause, 95 Ill. 440 beginning at the bottom of page 447 in part as follows: — “A careful examination of the language of the statute will show that it prohibits the sale of the homestead only to the extent of the $1,000 in value, and contains no prohibition of the sale of the surplus over and above that amount. It is the $1,000 in value of which the sale is forbidden, and not the surplus in premises occupied by the debtor. The provisions as to the manner in which an execution sale is to be made are simply directory and not prohibitory. It is not declared that a sale without setting off the homestead shall be null and void. Undoubtedly, the debtor may insist upon the statute being complied with, and may in apt time no doubt apply to a court of equity to set aside the sale whenever a non-compliance with the statute has injuriously affected him. Manifestly this provision is principally for the benefit of the judgment creditor, for, upon a sale being made with the homestead set off, the purchaser becomes entitled to the possession of the portion sold immediately upon the execution of the sheriff’s deed, whereas, if a sale be made without regard to those provisions, the purchaser can obtain no title nor any right to possession until he obtains a decree in equity setting off the debtor’s homestead, and he loses all rents and profits accruing prior to the entry of such decree. Although a sale under execution, without regard being had to the provisions of the statute in question, may pass an equitable title to the surplus over and above $1,000.00' in value, and entitle the holder of such title to maintain a bill in equity to have the debtor’s homestead set off, and to have commissioners appointed to make the division, and perhaps for other equitable relief, yet this bill seeks no such relief. ’ ’

Diets v. Hagler, 309 Ill. 381 was a bill in chancery filed by S. J. Diets against H. T. Hagler and Minerva Hagler praying for the assignment of an estate of homestead to them, or if it could not be assigned, for a decree authorizing the complainant to pay, and requiring the defendants to accept $1,000 in satisfaction of their homestead right. It appeared in that case that the premises were occupied by the judgment debtors as a homestead, but no attempt was made to set off the homestead. In affirming a decree granting the complainant the relief sought, the court held that a sale of land worth more than $1,000 upon which the debtor resided with his family, without setting off his homestead is not void, but that such sale without setting off the homestead as required by statute, vests in the purchaser no title which is available in a proceeding at law for the possession of the premises, because a court of law cannot determine how far the homestead right will enter, but that such a purchaser does get an equitable title to the excess in value of $1,000, which he may go into a court of equity and enforce by having a homestead of that amount set off to the judgment debtor, or if that is impracticable, by paying him $1,000, and that on application of the judgment debtor to set aside such a sale, a court of equity may cause the homestead to be set off if the property is divisible, and set the sale aside to the homestead so set off, only, or if the property is not divisible may require the debtor to accept the $1,000 for his homestead if the purchaser shall elect to pay it.

In Krupp v. Brand, 200 Ill. 403 a bill of complaint was filed by a purchaser at an execution sale who had received a sheriff’s deed to the premises purchased, which consisted of the homestead of the defendants exceeding in value $1,000, where • no steps had been taken by the sheriff to set off the homestead before the sale as required by statute. The bill prayed that the homestead be set off as provided by law, and in the event it could not be, that then the defendants be directed to surrender possession to the complainant upon payment of $1,000. In affirming a decree which granted this relief, the court reviewed former decisions having to do with the same questions arising in actions at law and in suits in equity, and quoted with approval from Leupold v. Krause, supra, to the effect that a judgment debtor may insist upon the statute with reference to setting off a homestead where its value exceeds $1,000, being complied with and may in apt time apply to a court of equity to set aside the sale whenever a noncompliance with the statute has injuriously affected him. The court then, said that a court of equity had the power to cause the homestead to be set off upon application of the purchaser and also upon’ the application of the claimant of the homestead and in the course of its opinion stated: “The underlying question in all the cases is whether the purchaser of a homestead exceeding in value $1,000.00 gets the title to the excess over and above that amount, or whether he gets nothing. If he gets no title whatever, he can have no standing in a court, either of law or equity. The legal title to the undivided interest in excess of $1,000.00 does undoubtedly pass to the purchaser. The real ground upon which the decisions in actions at law rest is, that the title is not available in ejectment or forcible detainer because a court of law ‘cannot determine how far the homestead right will extend.’ It was not intended in any of those cases to hold that the purchaser had no title whatever, but only that his title was not available in those forms of action, — and this sufficiently appears from the cases themselves. At all events, it must be said now with greater necessity than it was in Leupold v. Krause, supra, that the rule announced in Loomis v. Gerson, supra, and Stevens v. Hollingsworth, supra, as construed in the Leupold case, has become a rule of property, and should not be overruled except upon the most urgent necessity.”

The contention of appellants that the sale in the instant case is void cannot be sustained. The authorities are otherwise. The provisions of the statute as to the manner in which an execution sale is to be made are directory and not mandatory. The record discloses that one of the judgment debtors was present at this sale and made no protest. Appellee was present and his bid of $8,000 was accepted and he received a certificate of purchase. Almost 10 months thereafter appellants, by motion, sought to have the sale set aside, contending that no title passed to the purchaser and that he took nothing. The legal title, however, to the undivided interest in excess of $1,000 did pass by that sale to appellee, the purchaser. The sale was not void and had appellants sought to invoke the equitable powers of the court and desired their homestead estate to have been set oft, such application could have been very properly considered by the court, but in the absence of any request therefor by either the claimant of the homestead or by the purchaser at the sale, the trial court entered the only order warranted by the authorities, and that order will be affirmed.

Judgment order affirmed.


author: Mr. Justice Huffman

text:
    In re Conservatorship Estate of Herman R. Hire, Incompetent. (Bessie L. Hire, Conservatrix of Estate of Herman R. Hire, Incompetent, Appellant), v. Robert B. Hrudicka, Appellee.
    Gen. No. 9,596.

      Opinion filed April 12, 1941.
    Rehearing denied May 7, 1941.
    James H. Andrews, Harper Andrews and Gregg A. Young, all of Kewanee, for appellant.
    John F. Garner, of Quincy, and Roswell B. O’Harra, of Macomb for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellant Bessie L. Hire was appointed conservatrix of the estate of Herman R. Hire in November, 1937. In December of that year she filed her petition in the county court of Henry county under sections 54 and 55 of ,ch. 86, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 77.156, 77.157], for citation against appellee to compel him to disclose and turn over property in his possession belonging to the ward. The county court found that appellee had converted to his own use property and money of the ward to the amount of $8,154.45 and entered judgment accordingly. Appeal was taken by appellee from that judgment to the circuit court of Henry county. Subsequently and on February 19, 1939, the ward died. Appellee then moved the court to dismiss the cause on the ground that appellant as conservatrix, could no longer maintain the action; and that upon the death of the ward, the same abated so far as appellant’s right to further prosecute such action. The motion of appellee was allowed and the court ordered the suit to abate. Appellant prosecutes this appeal from the order of the court sustaining appellee’s motion, and its judgment abating the suit. It will be observed that this case is to be considered under the statute as it existed prior to the Probate Act which became effective January 1, 1940.

Appellee has filed his motion in this court to dismiss the appeal, which motion is based upon the same ground contained in his motion in the trial court. Therefore the motion filed in this court has been taken with the case.

The question presented by this appeal is, whether the appellant can maintain this action against appellee, following the death of her ward.

It is insisted by appellee that upon the death of the ward all powers and authority of a conservator or guardian cease and determine, and that such relationship can only continue for the purpose of permitting a final settlement of the ward’s account. It is insisted by appellant that it was the legislative intent that a conservator might maintain an action such as this and that it did not abate upon the death of the ward.

We do not find where this precise question has been before a court of review in this State. However, the rule is general, that on the restoration of a lunatic or person of unsound mind to reason, the occasion for the interference of the State with their affairs ceases and such person has the right to be put in possession of his property, and to demand discontinuance of the guardianship over him, and in such case, the court will restore such person to his condition sui juris and order the guardian or conservator to deliver and pay to him all money and property which he may have, or to which the ward may be entitled.

The guardianship also terminates with the death- of the lunatic; and the only power which the court retains over the guardian or conservator in such case is, as in case of the termination of the guardianship by the restoration of the ward, to compel an accounting and delivery of the property of the ward.

Situations arising from a restoration or death of the ward are commonly provided for by statute. We find that sec. 9 of the Conservator Act of this State (ch. 86, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 77.111]), provides when a conservator may make final settlement and distribution of the estate upon the death of his ward. The provisions of this section are the same in all material respects as the provisions of sec. 16 of ch. 64 of the statute having to do with final settlement of a deceased ward’s estate by a guardian. And in this respect, the Supreme Court in the case of Whittemore v. Coleman, 239 Ill. 450, at page 453, states that the death of a ward puts an end to the guardianship, and that such relationship can only be regarded as continuing for the purpose of making a final settlement of the guardian’s account.

We come now to a consideration of the question to be determined. A guardian or conservator under the statute is clothed only with the power to manage and control the estate of his ward. The persons beneficially interested in the ward’s estate are not a part of the guardianship and the conservator has no appointment to represent them. The death of the ward terminates the guardian or conservator’s authority to deal with the estate of the ward other than to make final accounting, settlement and distribution to those beneficially interested as directed by the court, under the statute. He has no right to interfere with the property of the estate on behalf of the heirs. After the death of his ward, his liability continues to account for the funds and property of the estate, but other than this, his duties cease and are at an end.

The trust relationship must be considered as having terminated, being extinguished by the death of the ward, and the only continuing duty on the part of the guardian or conservator is his liability to account for his ward’s estate and to make delivery and distribution of same as directed by the court under the statute.

It is urged by appellant that the action survives by virtue of section 10 of the Abatement Act (ch. 1, sec. 10, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 107.010]). This section provides that when there is but one plaintiff, and he shall die before final judgment, that the action shall not, on that account, abate, “if the cause of action survive to the heir, devisee, executor or administrator of such decedent . . . .”

In the case of Harvey v. Harvey, 87 Ill. 54, there was involved a proceeding with reference to a guardian somewhat similar to this. It is there said that such a proceeding is not regarded as either a suit at law or a suit in equity; that it is a summary proceeding against the guardian personally to compel an accounting; that it is merely a mode provided to ascertain the sum for which such guardian is chargeable in the probate court, and is the proper mode, in most cases, to lay a foundation for proceedings against the sureties upon the guardian’s bond. It was there held upon the death of the guardian that a citation proceeding which had been commenced in the county court resulting in a judgment against the guardian, and by him appealed to the circuit court, abated upon the death of such guardian pending such appeal. The reason assigned was, that citation proceedings were summary in character and directed toward the guardian; and that they could not be maintained against his personal representative because such remedy could not be maintained originally against the executor of a guardian, and therefore the action was not such as would survive.

Again in the case of Kingsberry v. Hutton, 140 Ill. 603, it is said that if a guardian does not perform his duty toward accounting for his ward’s property without compulsion, the court may compel Mm to do so, but that where the settlement is made under compulsion, it is neither an action at law nor a suit in equity, but the exercise of a summary power conferred upon the court, and that the fmding- of the probate court in such a proceeding is not a judgment against the guardian; that it is a summary proceeding against him personally; that the court has power to require him to perform by delivering over the property, funds and other effects belonging to the ward, and upon his failure, has power to compel the performance of such duty only in the mode provided by statute, that is, by committing such guardian to jail until the order is complied with.

Also we find that the proceeding instituted by appellant in this case is one of purely statutory origin. Actions created by statute do not survive unless so provided by the statute itself, or unless provision for their survival is made by some other statute. Wilcox v. Bierd, 330 Ill. 571; Glos v. Glos, 341 Ill. 447; Dempster v. Lansingh, 166 Ill. App. 261.

We are of the opinion the court properly ordered the suit to abate. The judgment is therefore affirmed.

Judgment affirmed.


author: Presiding Justice O’Connor.

text:
    Brink’s, Inc., and Brink’s Express Company, v. Elizabeth Gravesen and The Trust Company of Chicago, Guardians of Estate of Carl Gravesen, Minor, Appellees. Lou Nathanson, Appellant.
    Gen. No. 41,470.
    Hatchett, J., dissenting.
    opinion filed April 14, 1941.
    Bussell F. Locke, for appellant; Ryan, Sinnott & Miller, for certain appellees.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.”


text:
    Everett Baker, Appellant, v. William Dowling, Appellee.
    Gen. No. 41,531.
    opinion filed April 14, 1941;
    rehearing denied April 28, 1941.
    George A. Bosomburg, for appellant; Robert Berg, for appellee.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.”


author: Justice McSubelt.

text:
    Sigrid Johnson, Appellee, v. Guy A. Richardson, Receiver, et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 41,433.

      opinion filed April 14, 1941.
    Frank L. Kriete, Charles C. Cunningham and Arthur J. Donovan, for appellants; John R. Guilliams, of counsel; V. Russell Donaghy, for appellee; David A. Schallman and Joseph P. Power, of counsel.
   Opinion by

Justice McSubelt.

“Not to be published in full.”


text:
    John M. Bransfield Co., Appellant, v. Bertha V. Wilson, et al., Appellees.
    Gen. No. 41,454.
    opinion filed April 14, 1941.
    Geary V. Stibgen, for appellant; Johntry & FitzGerald, for appellees; Bertha V. Wilson and Charles J. Wilson, John O’C. FitzGerald, of counsel.
   Opinion by

Justice McSubelt.

“Not to be published in full.”


author: Justice McSurely.

text:
    Wilma E. Kinney, Appellee v. Philip C. Lindgren, et al., Appellants.
    Gen. No. 41,485.

      opinion filed April 14, 1941.
    Kirkland, Fleming, Green, Martin & Ellis and Hershen-son & Hershenson, for appellants; Vernon M. Welsh, Harry G. Hershen-son and Wayne F. Swonk, of counsel; Warren H. Orr and William Shapiro, for appellee.
   Opinion by

Justice McSurely.

“Not to be published in full.’’


text:
    Marcia Mishelow, Appellant, v. Guy A. Richardson, Receiver, et al., Trading as Chicago Surface Lines, Appellees.
    Gen. No. 41,494.
    opinion filed April 14, 1941.
    Charles C. & Richard M. Spencer, for appellant; Frank L. Kriete, Harry I. Parsons and Arthur J. Donovan, for appellees; John R. Guilliams, of counsel.
   Opinion by

Justice McSurely.

“Not to be published in full.’’


text:
    Charles E. Loy, Appellee, v. Otto H. Knaak, Appellant.
    Gen. No. 41,586.

      opinion filed April 14, 1941.
    Christopher E. Jones, for appellant; Markman, Donovan & Sullivan, for appellees; John P. Sullivan, of counsel.
   Opinion by

Justice McSurely.

“Hot to be published in full.’’


author: Justice Matchett.

text:
    Dr. Homer W. Warren, Appellant, v. C. J. Supernand and Hazel Supernand, Appellees.
    Gen. No. 41,565.
    opinion filed April 14, 1941;
    rehearing denied April 28, 1941.
    Souis T. Herzon, for appellant; George Gilman Kelly, for appellees; John J. Kelly, Jr., of counsel.
   Opinion by

Justice Matchett.

“Hot to be published in full.’’


text:
    People of the State of Illinois, Defendant in Error, v. John Williams, Alias John Cooper, Plaintiff in Error.
    Gen. No. 41,595.

      opinion filed April 14, 1941;
    rehearing denied April 28, 1941.
    Ellis & Westbrooks and Joseph J. Attwell, Jr., for plaintiff in error; Bichard E. Westbrooks, of counsel; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Bembe, Assistant State’s Attorneys of counsel.
   Opinion by

Justice Matchett.

“Not to be published in full.”


author: Presiding Justice Friend.

text:
    Benjamin D. Ritholz et al., Appellees, v. Thomas Andert et al., Defendants. Benjamin E. Cohen, Petitioner, v. Earl Disselhorst, Appellant.
    Gen. No. 41,338.
    opinion filed April 15, 1941;
    rehearing denied May 5, 1941.
    Samuel Berke and Mayer Goldberg, for certain appellant; William Yihon and Joseph M. Jacobs, for certain other appellant; Clarence T. Morse and Benjamin D. Bitholz, for appellees.
   Opinion by

Presiding Justice Friend.

“Not to be published in full. ’ ’


text:
    John Hadraba et al., Appellees, v. Sanitary District of Chicago, Appellant.
    Gen. No. 41,374.
    opinion filed April 15, 1941.
    Ernst Buehler, Louis I. Fisher and Richard R. Mladic, for appellant; Maurice L. Davis and David A. Livingston, for appellees; Maurice L. Davis, of counsel.
   Opinion by

Presiding Justice Friend.

‘‘Not to be published in full.”


text:
    Alice Friesser and Julius Friesser, Appellees, v. Reynolds and Reynolds Company, Appellant.
    Gen. No. 41,388.
    opinion filed April 15, 1941;
    rehearing denied May 5, 1941.
    Taylor, Miller, Busch & Boyden, for appellant; James J. Magner, Charles R. Sprowl and Donald C. McKinlay, of counsel; John A. Bloomingston, for appellees.
   Opinion by

Presiding Justice Friend.

‘‘Not to be published in full.”


author: Justice Scanlan.

text:
    Irving G. Zazove, Appellant, v. Guy A. Richardson and Walter J. Cummings, Receivers, et al., Appellees.
    Gen. No. 41,596.
    opinion filed April 15, 1941.
    Irving G. Zazove,
    pro se; Frank L. Kriete, Charles E. Green and Arthur J. Donovan,
    for appellees; John B. Guilliams, of counsel.
   Opinion by

Justice Scanlan.

“Not to be published in full.”


author: Justice John J. Sullivan.

text:
    Maurice H. Kamm, Appellant, v. E. G. Swanson et al., Appellees.
    Gen No. 40,779.
    opinion filed April 15, 1941.
    Ode L. Rankin, for appellant; William A. Lomax, for appellees.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”


text:
    W. B. Caward, Appellee, v. Wilk, Clarke and Company, Inc. et al., Defendants. Lloyd E. Work, Receiver, Appellant.
    Gen. No. 40,793.
    opinion filed April 15, 1941.
    James Todd, for appellant; no. appearance for appellee.
   Opinion by

Justice John J. Sullivan.

‘ ‘Not to be published in full.”


text:
    Alex Polatsek, Appellant, v. Mandel Cohen, Appellee.
    Gen. No. 41,564.
    opinion filed April 15, 1941;
    rehearing denied May 5, i941.
    Haft & Shapiro, for appellant; Morris A. Haft, of counsel; George B. Cohen, Abraham H. Cohen and Jose Ward Hoover, for appellee.
   Opinion by

Justice John J. Sullivan.

‘‘Not to be published in full.”


text:
    Ernest Crosby, Beneficiary of Octavia Crosby, Deceased, Appellee, v. Jackson Funeral System Association, Appellant.
    Gen. No. 41,592.
    opinion filed April 15, 1941.
    Harris B. Gaines, for appellant; no appearance for appellee.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”


text:
    Edward J. Griffin, Appellee, v. Hertz Drivurself Stations, Inc., and Birck-Fellinger Corporation, Appellants.
    Gen. No. 41,626.
    opinion filed April 15, 1941.
    Abraham Lepine, for appellants; W. W. Hoover, for appellee.
   Opinion by

Justice John J. Sullivan.

“Not to be published in full.”