text:
    The People of the State of Illinois, for use, etc., v. Oliver Smith et al.

      Executions—Priority of Lien—Distribution of Proceeds of Property Sold—Constables.

    1. An execution becomes a lien upon the personal property of the judgment debtor from the time of its delivery to a constable.
    2. An officer holding a senior execution may, after the levy of a junior execution and before side, levy upon the property and take it from the officer holding the junior execution.
    3. It seems that the remedy of a judgment debtor, in whose favor a senior execution is in the hands of an officer who stands by without objecting while property of the common debtor, levied upon under a junior execution, is sold, is against such officer and not against the officer levying the junior execution.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Richland County; the Hon. William C. Jones, Judge, presiding.

      Messrs. Allen & Fritohey and McCauley & Moutbay, for appellant.
    The law is, as soon as an execution is delivered to a constable it becomes a lien on the personal property of the judgment debtor, and hence a senior execution has precedence over a junior execution; but if the officer having the junior execution makes a levy and sale of the property the sale will be good, and the property can not be taken from the purchaser by the senior execution. The only remedy of the party injured is against the officer. Rogers v. Dickey, 1 Gilm. 644.
    The language of the court in this case is, that if there is a sde of property under the junior execution the sale is good and the purchaser is protected, and hence the senior execution ceases to be a lien on the property; hut the law gives the party injured a remedy against the officer; hence appellant has pursued the remedy given him under the law.
    Suplióse Smith had not known of appellant’s execution and levied on this property and sold it before Miller knew it. Undoubtedly appellant would have a remedy against Smith. If appellant has no remedy against Smith in this case, thc-n there is but very little, if anything, in a senior execution-It would only he a question of who had the opportunity to make the first levy.
    Mr. R. B. Witohee and J. H. Packard, for appellee.
    It is a well settled rule of law that a senior execution has a priority of lien, provided a levy is made in the lifetime of the execution, but not otherwise. But in this case, while it is true that Miller held the senior execution, it is equally true that he neither levied nor attempted to levy on the horse the price of which is in litigation, either in the lifetime of .the execution or any other time.
    Smith received an execution, the same being a junior execution. He served it; he made a levy and sold property to satisfy it. He obeyed the writ and followed the law. He. did his duty.
    Miller, without any sufficient cause in law or in fact, failed to make a levy or to do any act required by law of him in the premises, and appellant’s remedy is against Miller and liis bondsmen and not Smith, unless Miller should prove that his inaction with his senior execution was according to appellant’s instruction, in which case appellant would have no remedy and nobody to blame but himself.
   Beeves, J.

William Bhode recovered a judgment before a justice of the peace, November 7, 18S1, against Gottlieb Schmoker. Several executions were issued on the judgment, the last one on the 19th day of October, 1887, and was delivered to Fred Miller, a constable. John Wolf, administrator of William Stuckey, recovered a judgment before the same justice on the 1-3th day of August, 1887, against said Schmoker, and execution was issued and delivered to appellee Smith, a constable, on the 11th of November, 1887. The Bhode execution was levied on five head of cattle, one wagon and one gun, and the property sold, realizing the sum of $92. The execution was for $123 and costs. The execution in the hands of Smith was levied on a horse belonging to Schmoker, sale made, and $35 realized from the sale.

This suit was brought against Smith and the securities upon his official bond, to recover the $35 made on this sale. The contention of appellant is that as the Wolf execution was junior to that of Bhode, appellee Smith should have turned over the money made by the sale of the horse, to be applied on Bhode’s execution.

An examination of the facts disclosed by the record will be necessary to properly determine the question at issue. It appears that the Wolf execution was first placed in the hands of constable Miller. The same day he met constable Smith, and an arrangement was made by which Miller turned over to Smith the Wolf execution, with the understanding that Miller should make the Bhode execution, which he then had in his hands, before Smith was to make a levy. However, Smith asked Miller to wait before making a levy on the Bhode execution, until he could serve the Wolf execution on Schmoker, and then they would both go up together and make a levy, when Miller could first make his money and he, Smith, would take what was left. It was arranged that Smith should serve his execution on Schmoker, and ton days thereafter he would come to Miller’s house, and they would go up together and levy the executions. Miller says that Smith did not keep his agreement, but after the expiration of the ten days went to Schmoker’s and levied on the horse and took it into his custody. When Miller went to Schmoker’s he levied the Rhode execution on all the property he could find, and in due time sold the same, with the result above stated.. The Rhode execution was levied while it was still alive. .Smith says it was agreed that he and Miller should go together to Schmoker’s and levy the executions, and that he went to Miller’s house twice to see him. The first time, not finding Miller at home, he told Miller’s wife that he would come again the next morning, and to tell Miller to be on hand to go to Schmoker’s. He went back next morning and, not finding Miller, he went to Schmoker’s and levied his execution on the horse.

William Rhode testified to a conversation between Miller and Smith in reference to their agreement, which occurred after Smith had levied on the horse, in which Smith admitted that he had agreed with Miller not to levy the Wolf execution before Miller levied the Rhode execution, but claimed that he had been to Miller’s house once, and not finding him, went ahead and levied his execution. It further appears that Smith received the money on the sale on his execution and still holds it. It also appears that Miller was present at the time Smith sold the horse on the Wolf execution, bnt said nothing about his execution. Under this state of facts is Rhode entitled to recover the monej' in the hands of appellee Smith? It is conceded that an execution becomes a lien on the personal property of the judgment debtor from the time it is delivered to a constable. It was held, in Rogers v. Dickey, 1 Gilm. 644, that if an officer having .a junior execution makes a levy and sale of the defendant’s goods, the sale will be valid, and the officer having a senior execution can not take the property from the purchaser. The only remedy of the partyinjured is against theofficer. Which officer? the one holding the senior execution or the one holding the junior execution ? It must, be remembered that it was held in Rogers v. Dickey, supra, that the officer holding the senior execution may, after the levy of a junior execution, levy upon the property and take it from the officer holding the junior execution, provided he does so before the sale. That was the exact question decided in the case; hence, after Smith made his levy upon the horse, Miller had the right, and it was his duty, to have levied Rhode’s execution upon the horse and taken it from the possession of Smith. He did not even levy his execution upon the horse; he knew Smith had levied on the horse; he was present at the sale under Smith’s execution ; he failed to perform his duty. We do not see how the agreement between Smith and Miller affects the rights of the parties under the facts occurring subsequently. Miller knew before the sale by Smith that Smith had not kept his agreement, and the law clothed him with ample power to protect himself by levying on the horse and taking it from the possession of Smith.

In this view it would seem that Rhode’s remedy is against Miller and not against Smith. It would undoubtedly be time that if Miller had levied his execution before the sale by Smith, and, proceeding to take the property from Smith, the latter had agreed with Miller that if he would permit Smith to sell under his execution he would turn over the proceeds of the sale to apply on the Rhode execution, Rhode could have recovered from Smith for money had and received for his use. But that is not the case made by this record. It should be observed that a different rule applies where two or more executions come into the hand of the same officer varying in priority. In such case, if the officer levies and sells on a junior execution, it is his duty to apply the money realized upon the senior execution. The property is already in his hands, and it would be a useless thing to require that he should, after a levy of the junior execution, make a levy on the senior execution, and take the property from himself under the first levy, and hold and sell it under the subsequent levy.

The law will hold the officer in such a ease to apply the money in the same order as it would have gone if he had levied the senior instead of the junior execution.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Reeves, J.

license: Public Domain

text:
    The Louisville, Evansville & St. Louis Railroad Company v. Sanford Hill.

      Railroads—Negligence—Failure to Signal—Killing Cow at Crossing-Pleading—Improper Amendment—Duplieity.

    1. Two distinct causes of action can not be set up in a single count of the declaration.
    2. In an action against a railroad company to recover damages for killing a cow at a crossing, this court reverses the judgment for the plaintiff for error of the court below in overruling the demurrer to the amended declaration which set up both a statutory and a common law cause of action.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Jefferson County; the Hon. C. C. Boggs, Judge, presiding.
    Hr. C. H. Patton, for appellant.
    The special demurrer ought to have been sustained and the plaintiff compelled to separate his grounds of action, placing the statutory negligence, which it is alleged consisted of failing to sound a bell or whistle as required by statute, in one count, and the common law negligence for running at high speed and not slowing up the speed of the train in approaching the highway crossing, in another count. Then the issues thus formed could be intelligently and certainly supported on one side and denied on the other by the evidence.
    “ The object of the science of pleading is the production of a single issue upon the same subject-matter of dispute. The rule relating to duplicity, or doubleness, tends more than any other to the attainment of this object. It precludes the parties, as well the plaintiff as the defendant, in each of their pleadings, from stating or relying upon more than one matter constituting a sufficient ground of action, in respect of the same demand, or a sufficient defense to the same claim. The plaintiff can not, by the common law rule, in order to sustain a single demand, rely upon two or more distinct grounds or matters, each of which, independently of the other, amounts to a good cause of action in respect of such demand.” 1 Chit. Pl. (14th Ed.) p. 226.
    But this question is settled in favor of appellant in a case singularly in point. See C., B. & Q. R. R. Co. v. Magee, 60 Ill. 529, which was an action brought to recover for the killing of a horse by defendant’s train. The court in the opinion says:
    “ The declaration has but one count, and in that the plaintiff avers a failure to build and maintain a sufficient fence, as required by the statute, and also avers that the defendant so carelessly ran, conducted and directed its train that it struck and killed the plaintiff’s horse. * * * The declaration was liable to demurrer for duplicity in uniting in one count two causes of action.”
    Mr. William T. Pace, for appellee.
    As this action is brought for negligence in the appellant on account of a failure to ring a bell or sound a whistle on approaching a crossing of a public highway as required by the statute, in consequence of which the cow in question, it is alleged, was killed, it would not be sufficient to create a liability upon the part of the appellant by'merely showing that the bell was not rung or the whistle sounded. It must be made to appear by the facts and circumstances proved that the accident was caused by such neglect. And the burden of proving it rests upon the appellee. Q., A. & St. L. R. R. Co. v. Wellhoener, 72 Ill. 60.
    The case above cited we think fully answers the objection endeavored by appellant to be sustained by the case of the C., B. & Q. R. R. Co. v. Magee, 60 Ill. 529. That case is not a parallel to the one now before the court, for in it two causes of action are alleged, while in this case it is necessary to allege more ’than the mere failure to ring a bell or sound a whistle, as required by statute.
   Reeves, J.

This action was to recover the value of a cow, alleged to have been killed by a train of appellant at a road crossing, just west of Mt. Vernon. The declaration charged negligence in not performing a statutory duty to ring a bell or blow a whistle before crossing the public highway.

By leave of the trial court appellee filed what he denominated an amendment to his original declaration, which, after stating facts which rendered the crossing a dangerous one, charged that the appellant ran its train over said crossing at a high rate of speed, and in a careless and reckless manner. This amendment attempted to make a case of common law negligence. Appellant interposed a demurrer, both general and special, to the declaration as amended, and among other-grounds, alleged that there was an attempt in the declaration to set up in one count two distinct causes of action, one arising from statutory and the other from common law negligence.

The court below overruled the demurrer, and appellant standing by its demurrer, there was judgment for appellee.

We think the court erred in its ruling upon this demurrer. It seems to us clear that the declaration as amended was open to .demurrer upon the ground that in one count it attempted to set up' two distinct causes of action; this should have been done by two counts.

For this error the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


author: Beeves, J.

text:
    Matthew Conner et al. v. Charles A. Akin, Administrator, etc., et al.

      Administration—Citation to Answer as to Assets Alleged to be Concealed —Secs. 81 and 82, Chap. 3, Starr & C. Ill. Stat.

    1. Upon a citation issued commanding the appearance o£ persons accused of having possession of property of a deceased person, whose estate is in course of administration, this court reverses the judgment or order in favor of the administrator as unsupported by the evidence.
    2. Proof going to show that money belonging to a deceased person came to the hands of a married woman, will not justify a finding against both herself and husband and an order that they jointly refund the same.
    [Opinion filed January 10, 1889.]
    Isr error to the Circuit Court of Franklin County; the Hon. B. H. Can by, Judge, presiding.
    Mr. Thomas J. Laymah, for plaintiffs in error.
    Messrs. C. H. Laymah and W, H. Williams, for defendants in error.
   Beeves, J.

A citation was issued by the County Court of Franklin county, commanding the appellants to appear before said court, to answer Charles A. Akin, administrator of the estate of Sarah Hammons, deceased, if they or either of them had any money or effects in their possession or control, or have concealed and embezzled any money or effects belonging to the estate of Sarah Hammons, deceased.

This citation was issued upon the petition of Joseph Hammons, who states that Sarah Hammons died intestate on the 6th day of April, 1878, naming her heirs; that deceased was not indebted to any one and that letters of administration were not granted upon her estate until about August 26, 1887; that petitioner, is interested in said estate and that he believes that Mathew Conner and Julia Conner have in their possession, or embezzled or concealed money and effects -belonging to said estate. The case was tried in the County Court and thence taken by appeal to the Circuit Court, where the trial resulted adversely to appellants, and they prosecute a further appeal to this court. This proceeding was instituted under Secs. 81 and 82, Chap. 3, Starr & C. Ill. Stat., p. 226.

Taking all that the. evidence proves, or tends to prove, we do not find any warrant in the evidence for the finding of the Cii cuit Court that at the time of the death of- Sarah Hammons there came into the hands of Mathew Conner and Julia Conner the sum of $1,600 in money, etc. The only proof which we find in the record bearing directly on the question as to what money came into the hands of either of .appellants at the time of the death of Sarah Hammons, is the testimony of Martha Crawford, who testifies that shortly after the death of Sarah Hammons, Julia Conner said to her, “ that she had $1,600 of Mammie’s money and that Mat would never get his fingers on it.”

Even if we concede that this testimony would be sufficient, taken in connection with the other evidence in the case, to warrant a finding that at the time of the death of Sarah Hammons there c.ame into the hands of Julia Conner $1,600 in money belonging to the estate of Sarah Hammons, we do not see upon what legal principle it would warrant such a finding against Mathew Conner, and the entry by the court of an order that appellants jointly pay the sum so found to the administrator. What Mrs. Crawford says that Mathew Conner said about borrowing $1,200 of his wife, would not, in our judgment, warrant the finding that the $1,600 came into the hands of the appellants jointly.

For this error the judgment or order of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Grant Parker v. J. D. Foster.

      Replevin—Safe—Evidence.

    In an action of replevin brought to recover a safe, this court holds that the judgment for plaintiff is not sustained by the evidence as between the parties, the right of possession being in the defendant.
    [Opinion filed January 10, 1889.]

      Appeal from the County Court of Richland County; the Hon. Theodore A. Fritchey, Judge, presiding.
    Mr. W. F. Foster, for appellant.
    Ho appearance for appellee.
   Reeves, J.

This was an action of replevin to recover the possession of a safe, brought by appellee. It is conceded that neither appellant nor appellee owned the safe. It belonged to one Starr. Starr came to the house of appellee on the 2éth day of February, 1888, with a team, wagon and the safe in controversy, and stated that he was going to his home and asked appellee to take care of his team, wagon and safe while he was gone. When Starr went to the train, appellee went with him. Appellee went into the office of appellant at the station and said to him, “ I am agent for a money safe; have a sample safe in my care; the owner is going away to be gone thirty days; don’t you think it would be a nice thing to have here in the office while the owner is gone ? ”

The appellant replied, “Yes; ask the owner’s permission to bring the safe to the office, and leave it here until he returns.” Appellee went to Starr and told him what appellant had said, and Starr said, “Yes; bring it to the office.” Appellee then took Starr into appellant’s office and introduced him to appellant, and appellee told appellant that Starr said, “ we might bring the safe to the office and keep it there while he was gone.” Starr then said, “Yes, go and bring the safe and put it in the office.” This is appellee’s account of what transpired in reference to the bringing of the safe to appellant’s office.

Appellant testified as follows: “On the morning of the 25th of February last, Parker came to my office and stated he was agent for a safe; asked him whose safe it was, and he replied a man by the name of Starr. Parker said Starr was going away, and asked me if I did not think it would be a nice thing to have in the office while Starr was gone; that he would be gone about thirty days. I said yes; ask him if we can bring it here. Parker said no, you ask him; and I said where is he? And Parker said he is in the other room. I requested Parker to bring him in. Parker did so. I asked him if he had any objection to bringing the safe to my office and keeping it there until he came back, and Starr said, none whatever. I think Parker and 1 both asked him this question simultaneously. Starr said, in a general way, go and bring the safe down here and put it in the office. Starr said to me, you use the safe and take good care of it until I return.” He says afterward Starr told him “to go and get the safe and put it in the office, and keep it and use it until he returned, which he thought would be in about thirty days; that he was sorry he did not have time to go and change the combination for me, but instructed me how to change it. He then took a key out of his pocket and gave it to me, stating it was the key to the iron box inside the safe, which I found to be correct.”

<J. H. Farnerworth, who heard the conversation between appellee, appellant and Starr, testified substantially as does appellant.

The safe was brought and placed in the office of appellant, and he continued to use it until it was replevied by appellee.

Hpon this evidence the court below found the issues for appellee. Taking appellee’s own testimony, we do not think he established any right to the possession of the safe. By his own testimony it appears that Starr directed the safe to be brought to appellant’s office, and there to remain until his (Starr’s) return. As against appellee, we think appellant had the clear right to the possession of the safe. Hpon the whole evidence there is not room for a possible doubt on this point.

The judgment of the County Court is reversed and the cause remanded.

Reversed and remanded.


text:
    William H. Herdman et al. v. Samuel D. Cooper et al.

      Homestead—Ownership in Common by Husband and Wife—Value.— Foreclosure—Sale—Subsequent Sale under Execution before Time of Redemption Has Run—Injunctions.

    1. Where a husband and wife are owners in common of the property on which they reside, in estimating the value of his homestead bis interest will not be alone considered; and it seems that the right of homestead does not extend to his interest in an adjoining lot within the same inclosure.
    2. An undivided interest accompanied by exclusive possession will support the homestead right.
    3. A second sale of land under judicial process is not permitted within the time allowed for redemption from a previons sale.
    [Opinion filed January 10, 1889.]
    In error to the Circuit Court of Jefferson County; the Hon. C. C. Boggs, Judge, presiding.
    Messrs. Pollock & Pollock, for plaintiffs in error.
    On the lltli day of June, 1886, plaintiffs in error made the mortgage on lot 2 to Samuel H. Watson to secure a debt due in October of the same year. It was sold under the decree of foreclosure on the 19th day of February, 1887, and the decree tvas at the December term, 1887, so that lot 2 was free from the effect of that judgment at the date of the decree. Ford v. Marcall, 107 Ill. 136; Hastings v. Bryant et al., 115 Ill. 69.
    The execution was issued and levied on the interest of William H. Herdman in lot 2 on the 12th of February, 1887, but the equity of redemption in Herdman did not expire till the 19th day of the same month, and was therefore irregular and can not be sustained. Hernandez v. Drake, 81 Ill. 34-40; Manf. Co. v. Dagget, 84 Ill. 556; Bell v. Warden, 110 Ill. 310.
    If Joel F. Watson had any remedy against lot 2 by virtue of that judgment and execution he could only avail himself of it by redeeming from the sale under the decree. Where a party fails to redeem from a former sale he loses all right to subject the property. Fitch v. Wetherbee et al., 110 Ill. 475; Chandler et al. v. Higgins, 110 Ill. 902.
    The issue of the execution created no lien upon lot 2, not being issued from another county. Conwell v. Watkins, 71 Ill. 488.
    It maybe claimed that Joel F. Watson, having obtained the certificate of purchase under the decree from Samuel II. Watson, could subject this lot. An assignment of a certificate of purchase to one entitled to redeem is not a redemption, and he will not be permitted to use it as a certificate of redemption. He must redeem absolutely andleave the evidence of it on record. McRoberts v. Conover, 71 Ill. 524; Moore v. Hopkins, 93 Ill. 505; Chandler et al. v. Higgins, 109 Ill. 602.
    The bill shows, and it is admitted in the answer, that there had not been any redemption and that Herdman then held the equity of redemption. But Watson could not sell this equity, and therefore his proceeding was void, and the Circuit Court committed manifest error in not supporting complainants’ bill upon this ground.
    As often as this question has been presented to this court the homestead law has been declared to be remedial, and should receive a liberal construction for the purpose of securing a home for the wife and children beyond the reach of the husband’s creditors. It was intended to secure a living out of the property of the husband for the support of the wife and children when the father is prostrated by financial misfortune, and a protection against his neglect and imprudence. Ever since the enactment of the law the struggle has been continued by the creditor to restrict and defeat the object of the law. The act of October, 1861, and. amendments, wholly changed the rights and liabilities of the wife. In her separate property and earnings she is as independent of her husband as if she was a stranger to. him, except as to her services as a wife. Thomas v. Mueller, 106 Ill. 36; Patten v. Patten, 75 Ill. 446.
    But if the rule held by the Circuit Court in this case be correct, then, because she is a wife, her separate property is to be treated as the husband’s property to satisfy the claim of his creditors, although she may have creditors also equally meritorious. The wife has a right of homestead in the property of her husband. Sanford v. Hinkle, 112 Ill. 146, 373; Shepherd v. Spremont, 111 Ill. 631.
    A stable, horse-lot, smoke-house and grounds therewith connected constitute a homestead. Reinback v. Walter, 27 Ill. 393; Thornton v. Bayden, 31 Ill. 200.
    Where the residence of the debtor is upon one lot of land and other buildings upon another lot contiguous thereto, the debtor is entitled to a homestead whereon his buildings are, without reference to quarter section lines. Darby v. Dixon, 4 Ill. App. 187.
    The language of the statute is that every householder having a family shall be entitled, etc., and this court, in the case of Hill v. Bacon, 43 Ill. 477, 478, said that the language was unmistakable that there shall be exempt from levy and forced sale the lot of ground and budding thereon occupied as a residence and owned by the debtor, being a householder and having a family. The homestead right of the wife can not be divested, except as provided by statute. It is paramount to any right that the husband can transfer. Brooks v. Hotchkiss, 4 Ill. App. 175; Johnston v. Dunavan, 17 Ill. App. 59.
    Messrs. G. B. Leon Ann and Albert Watson, for appellee.
   Beeves, J.

On the 14t.h day of May, 1884, Joel F. Watson obtained a judgment in the Circuit Court of Jefferson County against plaintiff in error, William H. Ilerdman, for the sum of §300.50 and costs of suit. On the 12th day of February, 1887, an execution and fee-hill were issued on this judgment to defendant in error, Cooper, sheriff, and levied by him on lot 2, block 18, in the city of Mt. Vernon, and a sale of the lot advertised by the sheriff. Thereupon the said William H. Herdman and his wife filed their bill in chancery in said Circuit Court, alleging that the said William H. Herd-man was, and had been for more than twenty years, a householder, the head of a family, and for all that time lived with his family. For more than twenty years his wife had been the owner of an undivided two-thirds of lot 3, block 18, city of Mt. Vernon, and for a like time William H. Herdman had been the owner of the other undivided one-third of said lot; and for the same length of time the said William H. Herd-man had been the owner of the undivided eight-ninths of lot 2 in same block, and lots 2 and 3 since 1860 have been in the same inclosure. The house occupied by said William H. Herdman and his family is situated upon lot 3, and their barn and stable is situated partly upon lot 3 and partly, and chiefly, upon lot 2. Lot 2 has been for more than twenty years used b;r said William H. Herdman and his family for a vegetable garden and for fruit trees, as a part of the homestead, and that the interest of the said William H. Herdman in lots 2 and 3 did not exceed in value the sum of $1,000.

The bill further sets forth that in June, 1886, said William H. Herdman and his wife gave to Samuel H. Watson a mortgage on lot 2 to secure the payment of $140, due in October^ 1886, which mortgage was foreclosed, and the lot was sold on the 19th day of February, 1887, under the decree of foreclosure, and said Samuel H. Watson became the purchaser, and afterward the certificate of purchase was assigned to defendant in error, Joel F. Watson. The bill sets out the judgment, issuance of execution thereon and levy of same upon lot 2, as above stated. The bill prayed for an injunction to restrain the sale under the execution (which was granted), and that, upon a hearing, lot 2 might be declared a part of William H. Herdman’s homestead, and for general relief.

The answer of Watson admits substantially all the allegations of the bill, except that as to homestead, and denies that Herdman had any homestead right in lot 2, and denies that one-third of lot 3 and eight-ninths of lot 2, taken together, did not exceed in value $1,000.

The cause went to a hearing and a decree was entered finding that the homestead of Herdman was confined to lot 3, finding the value of lot 3 to exceed $1,000, and dissolved the injunction and dismissed the bill. Herdman and wife bring the case to this court by writ of error, and assign, among other errors, first, that the court erred in finding that the right and estate of homestead of plaintiff in error, William H. Herdman, Avas confined and restricted to lot 3, and that the plaintiffs in error are not entitled, nor either of them, to lot 2 or any part thereof, as a homestead; and second, that the court erred in finding that the execution and fee-bill were laAvf nlly issued and levied on lot 2. It is insisted that the testimony does not-support the finding that lot 3, with its improvements, was Avorth more than §1,000. We have carefully read all the testimony on this point, and think it fully supports this finding. It is further contended that as William H. Herdman OAvned only one-third of lot 3, in estimating the value of his homestead only one-third the value of lot 3 should be taken, and the balance of §1,000 should be taken out of lot 2. We can not accede to this as a correct vícav of the Hav applicable to homesteads. It has been held that Aihere husband and Avife live together on the Avife’s land, the husband can not have a homestead in other property OAvned by him, Tourville v. Pierson, 39 Ill. 446; Hay v. Baugh, 77 Ill. 500.

It is further contended that neither husband nor wife could maintain their homestead right as to lot 3, because a homestead rightcan not be supported by an undivided interest in land, and as lot 3 was owned tAvo-thirds by wife and one-third by husband, no homestead could exist as to either of them in lot 3, and as the court found that for five years before the rendition of decree, William H. Herdman owned all of lot 2, and Avas occupying the same as a part of his homestead, he ought to have been protected in a homestead right in lot 2 by the decree. In the first place, while the question is one in reference to Avhich the authorities do not agree, yet Ave think the weight of authority is that an undivided interest, accompanied by exclusive possession, will support the homestead right. Upon the question, will an estate in common siipport a right of homestead in one of the co-tenants, or must it be an estate in severalty, a hasty examination of the authorities discloses that Hcav Hampshire, Vermont, IoAva, Kansas, .Nebraska, Arkansas and Texas hold that an estate in common will support the right of homestead in one of the co-tenants, while Massachusetts, Wisconsin, Minnesota, California and Louisiana have held to the contrary. Whatever may be the correct view upon this question, it is difficult to see how, if Herdman did not have a homestead right or estate in lot 3, he can be said to have a homestead in lot 2. The language of the statute is that every householder having a famVy shall be entitled to an estate of homestead to the extent in value of $1,000 in the farm or lot owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence. Lot 2 independent of lot 3 can not be said to come within this provision. We are, therefore, of the opinion that this finding of the court was correct.

In considering the second error, it should be remembered that lot 2 was sold under the decree of foreclosure on the 19th day of February, 1887, and the time of redemption would not expire until February 19, 1888. In May, 1887, Watson had his execution levied on lot 2, and caused the same to be advertised for sale. The law does not permit a second sale on judicial process of same land within the time allowed by law for a redemption from first sale. Cook v. City of Chicago, 57 Ill. 268; Merry v. Bostwick, 13 Ill. 398; Watson v. Reissig, 24 Ill. 281.

If it be said that the Watson judgment was a prior lien to the mortgage, under a foreclosure of which the first sale was made, it is sufficient answer to say that the record does not show it was a prior lien. The judgment was obtained in May, 1884, but the record fails to show that an execution was issued on the judgment until February 1, 1887. In this state of case the lien of the judgment was lost and the only lien on the lot in controversy was created by the levy of the execution in May, 1887. It follows that the levy of the execution upon the lot, and the attempt to sell the same under the execution, was illegal, and the court should have so found. For the error indicated, the decree of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Barney Overbeck v. George W. Cornwell.

      County Court—Jimsdiction—Sections 5, 6 and 7, Act of 1874.

    The County Court, at a probate term, has no jurisdiction of an action of assumpsit brought by an administrator to'collect a debt due the intestate in his lifetime.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Effingham County; the Hon. William C. Jones, Judge, presiding.
    Mr. IIenby B. Ejepley, for appellant.
    Messrs. Weight & Wood Bbos., for appellee.
   Beeves, J.

The question to be determined in this case, is, has the County Court, at a probate term, jurisdiction of an action of assumpsit, brought by an administrator to collect a debt due the intestate in his lifetime? It would seem that this question must be determined by the statute. That the County Court has such jurisdiction is not questioned, but is the jurisdiction confined to the law terms of the County Court, or may such a suit be brought to a probate term ? Sec. 5 of the act of 1874 relating to county courts provides: “County courts shall have jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators and settlement of their accounts, all matters relating to apprentices, proceedings for the collection of taxes and assessments, and in proceedings by executors, administrators, guardians and conservators for the sale of real estate forth e purpose authorized by law; all of which, except as hereinafter provided, shall be considered as probate matters, and be cognizable at the probate term hereinafter mentioned.” Sec. 6 relates to the time of the holding of probate terms, etc.

Section 7: “ The county courts shall have concurrent jurisdiction with the circuit courts in all that class of cases wherein justices of the peace now have or may hereafter have jurisdiction, where the amount claimed, or the value of the property in controversy shall not exceed one thousand dollars (§1,000), concurrent jurisdiction in all cases of appeals from justices of the peace and police magistrates, provided, appeals from the county judge, when sitting as a justice of the peace, shall be .taken to the Circuit Court as now, and in all criminal offenses and misdemeanors where the punishment is not imprisonment in the penitentiary or death; all of which shall be cognizable at the law terms hereinafter mentioned.”

It will be observed that the matters embraced in Sec. 5 are cognizable at the probate terms, “ except as hereinafter provided.”

Section 7 enumerates, among others, just such a case as the one involved in this suit, and says it shall be cognizable at the law terms of the County Court. We do not see how the Legis^ture could well have used language that would more plainly fix the jurisdiction of the County Court, at its law term, of such cases as the one here considered.

Even conceding that this case might be included under the phrase, “settlement of estates of deceased persons,” found in Sec. 5, still it must be remembered that Sec. 5, in giving jurisdiction at the probate terms of the County Court in the matter of the settlement of the estate of deceased persons, and other matters, excepts what is in the same act thereinafter otherwise provided, and Sec. 7 specifically gives the County Court jurisdiction of the whole class of cases to which the one in controversy in this suit belongs, and declares that this jurisdiction shall be exercised by the County Court at its law terms. We think the Circuit Court held correctly that the County Court, at a probate term, had not jurisdiction of the subject-matter of the suit of Arminda J. Broom, administratrix of the estate of John Broom, deceased, versus George W. Corn-well; jurisdiction of the subject-matter is just as nenessarv as jurisdiction of the person of the defendant in order to a valid judgment. Where there is an absence of jurisdiction of the subject-matter, the judgment is void and may be attacked collaterally.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.


text:
    Lawrence Moore et al. v. Helen R. Williams et al.

      Practice—Motion to Dismiss Appeal—Real Property—Conveyance in Consideration of Support — Homestead—Reservation— Abandonment — Failure of Consideration—Restitution.
    1. A party to a suit can not enforce a portion of a decree which is in his favor while prosecuting an appeal for the reversal of a portion of the same decree which is adverse to him.
    ‘2. In the case presented this court dismisses the appeal, the appellants having secured possession of the premises in question by means of a writ of restitution under one part of the decree while prosecuting an appeal to reverse it as to part thereof adverse to them.
    [Opinion filed January 10, 1889.]
    Appeal from the Circuit Court of Franklin County; the Hon. B. H. Canby, Judge, presiding.
    Mr. W. H. Williams, for appellants.
    Messrs. George C. Boss and Charles H. Layman, for appellees.
    Since the appeal was perfected, appellants have, in conformity to that same decree from which they appealed, asked for and obtained their writ of restitution, and have actually taken possession of the lands, with its crops, and ousted appellee from her place; then they perfect their appeal to this court seeking to reverse another part of the same decree which gave judgment against appellants for $600, and making such judgment a lien on the lands in controversy. For proof of this, see certified copy of writ of restitution, with officer’s return thereon; also affidavit of A. D. W. Williams as to appellants being in actual possession of the lands. This, they can not legally do. A party can not avail himself of that portion of a decree which is favorable to him and secure its fruits, and then reverse, in an appellate court, such portions as militate against him. If a decree is to be reversed the parties should be placed in statu quo. Holt v. Rees, 46 Ill. 181.
    When a party accepts the benefits of a decree, he can not afterward prosecute a writ of, error to reverse it. Such an act operates as an estoppel, and may be treated as a release of errors. Corwin et al. v. Shoup, 76 Ill. p. 246; see, also, Morgan v. Ludd, 2 Gilm. 414; Thomas v. Negus, 2 Gilm. 701; Austin v. Bainter, 40 Ill. 82.
    In this case, appellants, with full knowledge, accepted the fruits of a decree by forcibly ousting appellee, and now seek to reverse the same decree. “Any decisive act of the party, done with knowledge of his rights and of the fact, determines his election and works an estoppel.” Bigelow on Estoppel (2d Ed.), p. 503.
   Beeves, J.

Appellants filed their bill in chancery against appellees, alleging that on the 27th day of April, 1881,Will-iam B. Finney and Helen B. Finney, his wife (now Williams), conveyed by warranty deed certain lands to appellants. The consideration of the deed was expressed to be, “ that the grantees herein (appellants) shall provide for the wants of and take care of the grantors (William B. and Helen B. Finney) during their natural lives.” Before Helen B. Finney would sign the deed she required that this provision should be inserted in the deed, viz.: “ It is further agreed that this deed is not to exclude II. B. Finney of her rights under and by virtue of the homestead laws of this State.” The bill sets forth the death of William B. Finney about the 25th day of May, 1881, and that Helen B. continued in possession of the lands until about April 10, 1887, when she married A. D. W. Williams, and abandoned the lands and went to live with her husband upon his lands, as their homestead; that because of her abandonment of the lands in controversy, and for other reasons set out in the bill, she had forfeited the right of homestead reserved to her by said deed.

Appellants prayed for a decree declaring an extinguishment of said homestead claim, and that appellants be put in possession of said lands, and to this end that a writ of possession issue. The answer of Helen It. Williams, appellee, admits all the allegations of the bill except the alleged abandonment of the lands or the commission of waste, which she specifically denies. Mrs. Williams also tiled a cross-bill, and the allegations upon which she sought affirmative relief were that appellants had failed and refused to provide for the wants and take care of the said William B. and Helen 17. Finney during their natural lives, and that she had been compelled to meet these wants and pay for the necessary care out of her own funds, and claiming that there was due her on this account the sum of §1,451.50, praying for a decree against appellants for that amount. Appellants filed their answer to the cross-bill, and denied seriatim all the allegations of the cross-bill upon which affirmative relief was sought. After replication to the answers the case went to a hearing and decree. The decree found that there had been abandonment by Mrs. Williams of her homestead in the said lands and decreed the same to be extinguished, and that appellants were entitled to the immediate possession of said lands, and ordered that a writ of restitution issue, etc. The decree further found that appellants had wholly failed, neglected and refused to provide for the wants and take care of appellee, Helen It., and that she had been compelled to rely for the necessaries of life upon her own efforts and the charity of friends, and that the reasonable value of such' necessaries was the sum of §600, and decreed that appellants pay her that sum within thirty days, etc.

An appeal was prayed and allowed to this court, and the record, abstract and brief filed by appellants within the time required by law and the rules of this court.

On the 7tli day of September, 1888, a motion was made by appellees to dismiss the appeal, and the disposition of the motion was reserved until the final hearing. The motion sets forth, after reciting the terms of the decree, that on the 19th day of June, 1888, the appellants caused to he issued the writ of possession ordered by the decree, and on the 28th day of June, 1888, the sheriff of Franklin county,-by virtue of said writ, put appellee, Helen R. Williams, out of possession of the lands described in the decree and put appellants into possession of the same. A copy of said writ, and the return of the sheriff thereon, duly certified, were filed in support of the motion. The legal ground upon which the motion is based is that a party can not avail himself of that portion of a decree which is favorable to him and secure its fruits, and then reverse, in the Appellate Court, such portions as militate against him; in this case, that appellants could not avail themselves of that-part of the decree giving them the right to the immediate possession of the land in controversy, and the aid of the court in enforcing this right by a writ of possession, and, after securing the fruits of this portion of the decree, seek a reversal of that part of the decree which required them to pay Mrs. Williams $600. We think this point is well taken. Holt v. Rees, 46 Ill. 181; Corwin v. Shoup, 76 Ill. 246.

The appeal will be dismissed and proceeds awarded.

Appeal dismissed.


author: Per Curiam.

text:
    Maria Gallagher et al. v. Mary Kilkeary et al.

      Practice—Motion to Re-docket—Pinal Decree—Freehold Estate—-Wills.

    Upon a motion to re-docket a cause and set aside the final order entered therein at a former term of court, this court holds that its power over the same terminated with such former term, and that further action on its part would be unauthorized and void.

      [Opinion filed February 27, 1889.]
    Ik error to the Circuit Court of St. Clair County; the lion. George W. Wall, Judge, presiding.
    Mr. F. C. Cockrell, for plaintiffs in error.
    Messrs. Torree & Holder and B. H. Caret, for defendants in error.
   Per Curiam.

This is a motion to re-docket the cause and to set aside the final order entered in the cause at the August term, 1888, of this court, reversing and remanding the cause.

The ground of this motion -is that this court had no jurisdiction to hear the cause for the reason that the will involved in the case devised real estate in fee and therefore involved a freehold.

Ho question was made on the hearing of the writ of error in this court as to the jurisdiction of tliiscourt. In numerous cases of the same kind as this the Appellate Court assumed jurisdiction to hear and decide the cases, and the same afterward were taken to the Supreme Court, and the latter court in none of them questioned the jurisdiction of the Appellate Court. Calvert v. Carpenter, 96 Ill. p. 63; Long v. Long, 107 Ill. 210; McMillan et al. v. McDill et al., 110 Ill. 47; American Bible Soc. v. Price, 115 Ill. 623.

These cases show that the practice of both the Appellate and Supreme Courts has recognized such cases as within the jurisdiction of the Appellate Court.

• Whether this is the correct practice we do not feel called upon now to decide. It is sufficient to dispose of this motion to say that, whether this court had jurisdiction of the case or not, it has passed beyond our control and we have no power to set aside a final order or decree of this court made at a, former term of the court.

We hold that our power over the case ceased when the August term of this court terminated without a petition for rehearing, and any action we might now take would be without authority and void.

Motion overruled.


author: Phillips, J.

text:
    American Central Insurance Company v. Sophronia R. Brown.

      Fire Insurance—Conditions—Title—Litigation—Sec. 85, Practice Act— Acts of Agents—Proof of Loss■—Waiver.

    1. Under Seo. 85 of the practice act a cause must be considered as pending during two years from the time the same was reversed and remanded by the Supreme Court.
    2. When such cause involves the title to real estate, the insurance of such property by an agent having knowledge of such reversal amounts, in the absence of fraud or concealment, to a waiver of a condition that (he policy shall be void if the title to the property ‘‘h8 or become involved in litigation.”
    8. The failure of an insurance company to designate the error in a preliminary proof of loss, upon the existence of which it bases its refusal to pay, constitutes a waiver thereof.
    [Opinion filed March 1, 1889.]
    Appeal from the Circuit Court of .Franklin County; the Hon. Oliver A. Barker, Judge, presiding.
    Messrs. D. M. Browning and W. S. Cantrell, for appellant.
    Mr. F. M. Youngblood, for appellee.
   Phillips, J.

Appellee brought her action on a policy of insurance issued by appellant.

A verdict and judgment was entered in appellee’s favor and this appeal brings the record to this court.

The policy contains this clause: “ This policy shall he void and of no effect if the title to the property insured be or become involved in litigation.” The appellant sought to show a breach of that condition to avoid liability.

The evidence shows that the Polar Star Lodge, Ho. 652, A. F. and A. M., filed a bill for specific performance against Isham Harrison and wife and E. J. Brown, the husband of appellee, to cause a deed to be made to the lodge, of the lot on which the insured building stood.

A decree had been entered adverse to the defendants in that bill and an appeal prosecuted to the Supreme Court, where the decree entered in the Circuit Court was reversed and the canse remanded.

The opinion is reported in 116 Ill. 279. During the pend-ency of that litigation, E. J. Brown, one of the defendants to that bill, conveyed the premises to his wife, the appellee here. J. F. Mason was an agent of the appellant and before the reversal applied to E. J. Brown to insure the building and was informed the title to the premises was in litigation.

After the reversal of the decree Mason, in conversation with E. J. Brown, as he testifies, was informed: “We have beat our suit and I expect I had better take out a small policy on the building.’5 “Says I, ‘All right; if the suit is decided then the property is insurable.’ I had heard before that the case had been carried to the Supreme Court and had been decided in his favor.”

He further states: “What I knew would not be very much; that is, what I absolutely knew. I knew there was a suit pending between the parties at Mulkeytown in regard to this particular property.”

E. J. Wright, the agent of appellee, testifies: “I think it was as much as five or six months before that time (the time of issuing the policy) Mr. Mason asked me if I wanted insurance on my house, and I told him it was in litigation. As the case was not decided (it was in the Supreme Court), he said no, the company would not take it. Then when he came to town the time I did insure, he was speaking about it again and I told him the Supreme Court had reversed the decision, and that it was all right and my wife wanted a policy on it. He said all right. That is the way I understood him; that it was all right. This was before the policy was issued.”

It is claimed by appellee that inasmuch as there had been a reversal of the decree and an order to remand, that unless notice was given and the cause re-docketed, it can not be said that the title to the property was in litigation. We do not assent to this proposition; as by section 85 of the practice act, from the date of tiling the opinion of the Supreme Court two years are given to either party to file the transcript before the cause shall be considered as abandoned; and during that time it must be considered as pending.

From this evidence it appears that the agent of appellee, her husband, had informed the agent of appellant that the title to the property was in litigation; that the decree was appealed from; that the decree of the Circuit Court had been reversed was stated. All these facts were known to the agent of appellant when he issued the policy. That agent states he “had heard before that the case had been carried to the Supreme Court and had been decided in his favor.” Then, from this evidence, the agent of the company knew, in reference to the litigation, that the title to the pretnises was involved; that a decree had been entered and appealed from; that on appeal the decision of the Supreme Court was a reversal. It does not appear that any other fact was stated, or any concealment of facts by the agent of appellee, nor that any statement was made not already known to the agent of appellant. Then it must be held the company waived that condition of the policy. The F. & M. Ins. Co. v. Chestnut et al., 50 Ill. 111; The Andes Ins. Co. v. Fish, 71 Ill. 620; The Atlantic Ins. Co. v. Wright, 22 Ill. 473.

It is further insisted by appellant that the appellee did not fuynish proofs of loss as required by the policy. The policy contains this clause:

“If the loss sustained be upon a building, the insured shall furnish a duly verified estimate in detail by a reliable and responsible builder, of the actual cash value of the same immediately before the fire, or the damage to the same by fire.”

In the proof of loss furnished by appellee with other affidavits showing loss was an affidavit signed by T. P. Yanzandt and Jesse Barnett, carpenters and builders, who stated they had examined the building, and do estimate the cost of said building at one thousand dollars.” It appears that Robert Gray, an adjuster for the company, had visited the premises and on November 29, 1886, wrote appellee that he had submitted the facts to the general adjuster, and saying: “As we neither admit nor deny liability under your policy until further investigation, you will be expected to furnish your own proofs of loss.” On December 2, 1886, D. Eorick, the general adjuster, wrote appellee the company had been informed that at the time of the insurance and loss, the title to the property was in litigation, and she was not the unconditional owner of the property at the time, and saying: “If it was true that the property at either of the times referred to was in litigation and that you were not the unconditional and sole owner of the same at the time referred to, the policy is void and of no effect,” and further saying that it required a full compliance with all the conditions of the policy relating to proceedings in case of loss. On December 15th, after puoof of loss had been furnished, the general adjuster returned the same to appellee and wrote her, saying “ that it had no date,” and required an estimate in detail of a reliable and responsible builder.

It appears by his letter of December 18, 1886, the general adjuster; D. Eorick, wrote appellee acknowledging the receipt of what purported to be proofs of loss, saying “ that they were not proofs of loss in accordance with the conditions of the policy, and declined to accept the same, and saying they were held subject to the order of appellee.

■ No special objections to the proofs of loss last furnished by appellee are pointed out by that letter. The rule is well established that if an insurance company put their refusal to pay on a defect of the preliminary proofs of loss and suggest no defects in such proofs, their silence will be held a waiver of the defects, and the proofs must be considered as having been duly made according to the conditions of the policy. The P. M. & F. Ins. Co. v. Whitehall, 25 Ill. 466; Great Western Ins. Co. v. Staaden, 26 Ill. 360. In the Ins. Co. of N. A. v. Hope, 58 Ill. 75, it was held: The objection that the proofs of loss, when presented on the 6th day of May, were not in conformity to the conditions of the policy, does not aid the cause of the appellant. Only a general objection was made by the agent when the proofs were presented, and no specific defect was suggested or pointed out. The rule is, if the proofs of loss are insufficient when presented, it is the duty of the company or agent to give notice to the assured of the specific defect. And if the company or agent fail to point out wherein the proofs are defective, such proofs, notwithstanding a general objection, will be deemed sufficient.”

These authorities must be held conclusive of this question and the objection to the proofs of loss be deemed waived by the failure of the agent to point out specific defects. Finding no error in the record, the judgment is affirmed.

Judgrnent affirmed.


text:
    Franklin MacVeagh et al. v. Bailey & Hanford.

      Trespass—Refusal to Levy on Real Estate—Sec. IT, Chap. 77, Starr & C. Ill. Stat.—'Waiver— Undue Haste—Damages, Whether Excessive.

    1. In order to take advantage of Sec. II, Chap. 77, Starr & C. Ill. Stat., a debtor must furnish the officer who is about to levy upon his personal property a description of his other property liable to sale or execution. A failure so to do within a reasonable time will be considered a waiver of his rights under the statute.
    2. If the levy is made with undue haste, such description may be furnished within a reasonable time thereafter.
    3. All who direct, request, advise or abet an officer guilty of trespass in the execution of a writ, are joint trespassers and responsible for all the damages.

      4. A person who sues out an execution and gives a bond of indemnity to the sheriff to induce him to make a sale, is within the rule. One who accepts the proceeds of the illegal act is also within the rule.
    5. In an action to recover.damages for improperly closing the plaintiff’s place of business under an execution, the time consumed by a motion prosecuted by them to quash the levy and execution may be taken into account in the assessment of damages.
    7. It is not necessary to prove malice in order to sustain a recovery for actual damages in such cases.

      [Opinion filed March 10, 1889.]
    Appeal from the Circuit Court of Jackson County; the Hon. Oliver A. Harker, Judge, presiding.
    Appellees were indebted to Franklin MacVeagh & Co., of Chicago, and had executed four judgment notes, the last one maturing November 17, 1886. On November 20, 1886, John H. Ilamline, as attorney for MacVeagh & Co., had judgment entered by confession by the clerk of the Circuit Court of Jackson county, Illinois, on those notes, to the amount of §1,084.84, and execution at once issued and delivered to' him as such attorney. He placed the same in the hands of Leonard Kennedy, deputy sheriff of Jackson county, and telegraphed to Franklin MacVeagh & Co., at Chicago, asking them to wire J. S. Ilartline, of Makanda, Illinois, to go on an indemnifying bond. That dispatch was sent and Kennedy and Ilamline went to Makanda, Illinois, arriving there about two o’clock, and, going immediately to the store of J. S. Ilartline, got 1ns signature as surety on an indemnifying bond to the sheriff to indemnify him in levying on the goods of Bailey & Hanford. That bond was delivered to the deputy, who then went to the store of appellees and commenced to read the execution to Bailey, one of appellees, and while so reading it Ilamline came into the store. Kennedy then demanded payment of the amount in execution, and Bailey replied he could not then pay it. Hamline then said to Bailey, if he could pay it Monday he would wait over until that day. Bailey then stated he could not pay it, whereupon Hamline said he would take a train then at the depot and return to Chicago, and started to leave the room; he reached the door, where he turned and said, “ Carry out my instructions,” and immediately departed.
    Bailey inquired what the instructions were, and the deputy sheriff replied, “to levy on the stock of goods.” Kennedy testified that such were his instructions. Bailey testified that he then said: “There is no necessity of levying on the goods and shutting up the store. We have plenty of real estate.” And he further testifies, “and I designated the lot on which the store stands, and the brick on the adjoining lot. I spoke of the cooper-shop, the residence in town and farms around there, on which there was no incumbrance.” In this he is substantially sustained by his clerk, Gdorge E. Schwartz, while it is denied by Kennedy. Thereupon a levy was made .on tile stock of goods in the store, which levy was about three o’clock in the afternoon, and about five o’clock in the afternoon the store doors were closed and locked and the key taken by the deputy, and the store continued closed for some weeks.
    There is a conflict in the evidence as to the time the levy was made, though the weight of evidence shows the levy was made about three p. m. on Saturday, November 20, 1886. On the evening of that day Hanford, one of appellees, inquired of the sheriff if he would not accept a forthcoming bond, and was informed by him that he would consult the attorneys and then reply.
    The sale was advertised for December 6th, and on the 24th of November appellee presented the defendant descriptions of various real estate owned by them, with abstracts of title thereto, and requested that the levy be made thereon, which request was, by the sheriff, refused. A motion ■ was made in vacation to quash the levy and execution, the hearing of which was deferred, and thus the sale under the execution on the day advertised -was prevented. That motion to quash the execution and the levy was pending until the 5th day of January, 1887, and before it was decided appellee paid off the execution and costs, and the money was received by the appellants.
    Appellees bring suit to recover damages by reason of the refusal to levy on real estate, and the levying instead on personal property, averring that the goods in the store, while under the control of the deputy sheriff, were damaged, and alleging that the credit of appellees was injured, and make in that action the appellants, Franklin MacVeagh & Company, John H. Hamline and Leonard Kennedy defendants.
    A trial was had in 1888, and a verdict finding the defendant Kennedy not guilty, and the other defendants guilty, and assessing damages. On motion of defendants so found guilty a new trial was awarded, and on a second trial the defendants, Franklin MacYeagh & Company and John H. Hamline, were found guilty and damages assessed by the jury at $600, in the Circuit Court of Jackson County. A motion for a new trial was overruled and judgment entered on verdict.
    The evidence shows that at the time of this levy the appellees were owners of two or three farms in Jackson county, Illinois, and also several town lots, with the buildings thereon, in Makanda, Illinois; that their real estate was worth more than $12,000.
    Messrs. Geokge W. Smith and Hmmxijtb & Scott, for appellants.
    Bailey & Hanford, prior to the levy and after notice thereof, and after reasonable opportunity to do so, failed to turn out real estate to be levied on, and to furnish Sheriff Kennedy with a description of the same.
    The statute providing that personal property shall last be levied on was early construed by our Supreme Court in Bingham v. Maxey, 15 Ill. 271.
    “By this statute a defendant may insist that his personal property and the land on which he resides shall not he taken in execution until the rest of bis property in the county is exhausted. This provision is made for his benefit and he may waive any right under it. It is the duty of the sheriff before he proceeds to levy an execution, whenever practicable, to notify the defendant; and it then becomes the duty of the latter, if he claims the benefit of the statute, to furnish the officer with a description of his other property liable to sale on execution. If he has notice and fails to furnish such description he must be considered as waiving his rights under the statute, and the sheriff may proceed to levy on any of his property not otherwise exempt from execution. * * * It was too late to insist upon this right after the making of the levy.”
    This principle was applied at an earlier day in the case of Cook v. Scott, 1 Gilm. 342, where our Supreme Court, in construing a similar statute granting to judgment debtors an
      exemption of a certain amount of personal property, held that the selection must be made before the levy on such property; that it was the duty of the officer, before proceeding to levy on personal property, “ to notify such defendant of his having such execution in his hands, if practicable. * * * If the defendant, being thus notified, or otherwise being apprised of the execution against him in the hands of the constable, and of the intended levy, neglect or refuse to make such selection, the officer may at once proceed to levy upon any of the property of such defendant not specifically exempt from execution that he may choose to take, and afterward proceed to sell the same regardless of any subsequent claim or demand by such defendant of such property as having been selected by him under this statute.”
    The case of Bingham v. Maxey, supra, is cited and quoted from, and the doctrine approved in the following language in People, use of, etc., v. Palmer, 46 Ill. 402.
    “ A sheriff, whenever practicable, should, before he levies an execution, notify the defendant, and defendant, upon such notice, if he claims the benefit of the statute which exempts his personal property from sale, must furnish the officer with a description of his other property liable to sale on execution or he will be considered to have waived his rights under the statute.”
    The above cases are all reviewed and approved in Wright v. Deyoe, 86 Ill. 492. We do not know of this rule having ever been qualified even in this State.
    Even assuming that the levy was made before Bailey went to see Hanford, and that Bailey had not sufficient notice of the same and did not have any opportunity to furnish Kennedy with a description of the firm’s property, it was his duty, under the law, in such event, to furnish the sheriff with a list of that property at the earliest opportunity. Bingham v. Maxey, 15 Ill. 291.
    If he had offered to furnish Kennedy a description at five o’clock, when he came back from the country, Kennedy would have been obliged to accept it and release the levy without ever having turned the key in the door.

      Messrs. W. A. Schwartz, and' Hill & Martin, for appellees.
    It is claimed that appellees can not avail themselves of their right, under the statute, to have personal property last taken in execution, because they did not, at the time, furnish the officer with the legal description of the property, by numbers, they desired the levy to be made on. How, it is true, the evidence shows that no legal description, by numbers, was given to the officer, yet Bailey pointed out to him the property he desired him to levy on and asked him to make such levy. He had no opportunity to do more, and we believe he did all the law required him to do, especially in view of the fact that Kennedy told him that he could not take real estate—that he was indemnified to levy on the store. Shear v. Reynolds, 90 Ill. 238.
    The right to have personal property last taken, is an absolute right given to the execution debtor for his .benefit, and it is one he may invoke unless he has in some way waived it. Was there any waiver in this case ? If so, when and by whom was the right waived? Bailey insisted on a levy being made on real estate, before levy was made, at the first opportunity. The officer refused on the ground that he was instructed and indemnified to levy on the store. Houses and lots to four or five times the value of the judgment were pointed out, and still the officer refused to levy, saying he had to follow instructions. Was this a waiver ? Was it not, in substance, saying, “You need furnish no more particular description by number or otherwise; I have to levy on the store anyhow; I am indemnified and have my instructions ”? Instead of a waiver on the part of the appellees, we insist it was a complete waiver and an estoppel on the part of the appellants, to now insist that a list, by legal numbers, of the real estate should have been furnished.
    Wright v. Deyoe, 86 Ill. 492, and Bingham v. Maxey, 15 Ill. 291, are cited by appellants for the purpose of showing that the legal description should have been furnished the officer, and a request made to levy on the property described. How, a close examination of these cases will show that they proceed on the theory of a waiver all the while, and undoubtedly it is the law as therein announced, that had Bailey & Hanford maintained silence, said nothing about desiring levy made on real property, and under such circumstances a levy had been made, they would have waived their right. And it may he, had they failed to furnish a legal description of the property, if asked to do so, that would be a waiver. Tet we can not believe that the authorities cited maintain the theory that it is necessary for execution debtors to furnish legal descriptions when plainly told in advance, by the officer, that it is of no use for them to do so; that he has, under his instructions, to levy on personal property anyhow. Such a doctrine would preclude every debtor, unless he was a lawyer, from availing himself of this right, given him under the statute. Certainly a waiver can not be predicated upon such evidence. A waiver, to be operative, must be supported by an agreement founded upon a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on his legal rights. Ripley v. Ætna Ins. Co., 30 N. Y. (3 Tiff.) 136-164; Merchants Mut. Ins. Co. v. Lacroix, 45 Tex. 158. Viewed in the light of the above authorities, we do not believe that the court will say that the appellees waived their statutory right.
    Assuming, now, that it is the duty of the execution debtors to turn out real estate and to furnish a list of the same to the officer in order to maintain their right to have personal property last taken, how stands the matter as to an estoppel or waiver of the right of appellants to now insist that this should have been clone? Kennedy, the deputy sheriff, did not put his refusal on this ground at the time the levy was made, but, as we have seen, refused to levy because he was instructed to levy on the store. His objection, then, was placed on an entirely different ground, and having done what he did under instructions of appellants, we insist that they can not now set up a failure to furnish a list of real estate with the legal numbers. Wolf v. Willits, 35 Ill. 88; The People v. Admire, 39 Ill. 252.
    Bailey asked the sheriff to levy on real property, pointing it out. He refused on the ground that he was instructed .to levy on the store. This certainly relieved the execution debtors from the necessity of furnishing any further description, in order to preserve their rights.
   Phillips, J.

By the provision of Sec. 11, Chap. 77, Starr & C. Ill. Stat., “The person in whose favor execution is issued, may elect on what property not exempt from execution he will have the same levied, provided personal property shall be last taken.” Under a statute almost the same as this the Supreme Court of this State held: “This provision is made for his benefit (the execution debtor), and he may waive any right under it. It is the duty of a sheriff before he proceeds to levy an execution, whenever practicable, to notify the defendant, and it then becomes the duty of the latter, if he claims the benefit of this statute, to furnish the officer with a description of his other property liable to sale on execution. If he has notice and fails to furnish such description, he must be considered as waiving his rights under the statute, and the sheriff may proceed to levy on any of his property not otherwise exempt from execution. If a sheriff levies upon the personal property or homestead of the defendant without giving him notice of the execution, the latter may still insist upon liis right to have the judgment satisfied out of his other property. But he must in such case furnish the sheriff with a list of that property at the earliest opportunity.” Bingham v. Maxey, 15 Ill. 290.

While it is incumbent on the defendant in execution to give the officer having the execution a description of the property to be levied on, yet if the sheriff having the execution and the plaintiff in execution manifest a purpose and a determination to levy on personal property and exercise such haste in making the levy on personal property that time to furnish a description of real estate is not given to the defendant in execution after the notice and before the levy is made, it would not create a waiver of the right of the defendant in execution to have real estate first taken, and in such case the furnishing of a description afterward, within a reasonable time, would be sufficient. A preponderance of evidence here shows that the levy was made within a few minutes after the notice, and almost immediately after the defendant in execution, Bailey, said, “ There is no necessity of levying on the goods and shutting up our store, we have plenty of real estate,” designating the lot on which the store stands, the brick on the adjoining lot, the cooper-shop and residence in town, and the farms around town. Then, under this haste in levying on the stock of goods, with a refusal to accept real estate, the descriptions and abstracts being" made and tendered on the 24th of November following—from all these facts together, there accrued to appellees a right of action.

The appellants, however, insist that, inasmuch as Kennedy was, on the first trial, acquitted, and no steps taken by appellees to have a new trial awarded as to him, no action can be sustained as to appellants, the plaintiffs in that execution, and the attorney who directed the levy.

While Hamline and Kennedy both testify that there was no instruction not to levy on real estate, yet Kennedy testifies that he was instructed by Hamline, the attorney, “to levy on the goods if the execution was not paid,” and the weight of proof shows such to have been the instruction to the sheriff.

Again, while going to appellees’ place of business to make the levy, Hamline telegraphed Franklin MacV eagh & Co. to wire Hartline to afford Hamline any security he could, and Franklin MacV eagh & Co. wired Hartline to that effect, and Hartline, when ITamline and the deputy sheriff called at his store, made out an indemnifying bond, which was delivered to the deputy, who, thereupon, went and made the levy, and when the execution was paid off in order to have the goods released, Franklin MacV eagh & Go. received the money.

“ It is a general rule that when a sheriff or constable makes himself liable as a trespasser in the execution of a writ, all who direct, request, advise, aid or abet, are joint trespassers and responsible for all the damages. If a person sue out execution and give a bond of indemnity to the sheriff to induce him to sell the goods of another, that is a sufficient interference to subject him to an action; so, also, if he adopt the acts of the sheriff by receiving the goods or money.” Wolf v. Boettcher, 64 Ill. 316.

The jury had sufficient evidence to find Franklin MaoYeagh & Go. and John H. Harnline guilty.

It is insisted further, however, that the verdict was excessive. The store was closed from the 20th of ¡November to the 6th of December, provided the sale had been made without interruption by motion to quash. The motion to quash, however, was a right in appellees, and their action in assertion of that can not he regarded as an extension of the timo of closing the store beyond what was necessary to effect the sale of the stock of goods under the execution; but such sale was what appellees were endeavoring to prevent and had a right so to do, and in the assertion of such right of endeavoring to have execution and levy quashed, the store was kept closed until January 15th following. The jury also has the evidence as to the manner and extent of damage to the goods and of the injury to the credit of appellees. Accordingly, we see no reason to hold that the damage assessed was excessive, but we hold that the evidence appears to have warranted the damage as assessed. It is still further insisted that there is no evidence of malice on the part of appellants. It does not appear that vindicatory damages were assessed, and to recover actual damages it is not necessary to prove motive.

We find no error in this record of which appellants can complain, and the judgment is affirmed.

Judgment affirmed.


author: Per Ouriam.

text:
    Trustees of Schools, Town 6, Range 9, of Jasper County, Illinois, v. Allie Love et al.

      Practice—Rule 27—Motion to Re-docTcet—Jiirisdiction.
    1. This court has no power to set aside a final order after the term has expired at which it was entered, except upon petition for a rehearing.

      [Opinion filed March 1, 1889.]
    Appeal from the Circuit Court of Jasper County; the Hon. William C. Jones, Judge, presiding.
    Messrs. Gibson & Johnson and Fithian & Jack, for appellant.
    Messrs. James M. Honey and Geoege H. Paekee, for appellees.
   Per Ouriam.

The record in this case was filed, with abstracts and brief of appellant, in this court to the August term, 1887. The record of the clerk shows that he mailed to attorneys for appellees a copy of the abstract August 28, 1887. Ho brief was filed by appellees and the case was reversed and remanded under rule 27 of this court at said August term of this court.

At the present term a motion is made by appellees' for leave to re-docket the cause, with the view of further moving the court to vacate the order entered at the August term, 1887, reversing and remanding the cause, and to dismiss the appeal The ground urged for this motion is that the decree of the Circuit Court appealed from was rendered at the December term, 1886, from which an appeal was prayed by appellant and allowed to this court, and that the record should have been filed in this court on or before the second day of the February term, 1887, of this court, whereas it was not filed until June 9, 1887, and therefore this court did not acquire jurisdiction of the cause. There is nothing in the recoi'd filed in this court showing the date of the adjournment of the Jasper Circuit Court at its December term, 1886, and it is not shown now in support of this motion, either by affidavit or by the certificate of the clerk of the Circuit Court of Jasper county, that the December term, 1886, of said Circuit Court was adjourned more than ten days prior to the day fixed by law for the February term, 1887, of this court. But waiving this point and assuming, what is not shown, that the record should have been filed in this court to its February term, 1887, we adhere to the views expressed in the opinion filed at the present term in the case of Gallagher v. Kilkeary (ante p. 600) to the effect that this court has no power or authority to set aside a final order after the term has terminated at which the order was made, except upon a petition for rehearing. It can not he said that it was the fault of this court that the error now complained of was not discovered at the time the ease was heard. The attorneys for appellees had notice that the appeal was pending, in so far as the receipt of copy of abstract would give such notice, and had they then called the court’s attention to the alleged want of jurisdiction the difficulty which they are confronted with would not have arisen. The motion to re-docket the cause is denied.

Motion denied.


text:
    William W. Foster and W. R. Foster v. Thomas W. Haymond & Company.

      Negotiable Instruments—Promissory Note—Payment—Tender—-Verdict.

    In an action upon a promissory note, it being contended that the same had been paid in part, this court holds that the evidence sustains the verdict for the piaintiS.
    [Opinion filed March 1, 1889.]
    In error to the Circuit Court of Marion County; the Hon. William II. Snyder, Judge, presiding.
    Messrs., W. & E. L. Stoker and Anthony Thornton, for plaintiffs in error.
    Mr. Henry C. Goodnow, for defendants in error.

      Where the evidence is conflicting, and the - jury is properly instructed, a new trial will not be granted, but the verdict must be relied on as settling the controverted facts. Simons v. Waldron, 70 Ill. 281; Skiles v. Caruthers, 88 Ill. 458; Summers v. Stark, 76 Ill. 208; Gravett v. Mugge, 89 Ill. 218.
    Where the testimony is conflicting, the Supreme Court will not interfere with the finding of the jury merely because it would be better satisfied if the verdict had been for the other party. Varner v. Varner, 69 Ill. 445; Plummer v. Rigdon, 78 Ill. 222; McClelland v. Mitchell, 82 Ill. 35.
    Under our system of practice, this court will not reverse a judgment and set aside a verdict unless compelled from the want of evidence, or its manifest weakness and insufficiency, to sustain the finding. Even if the evidence is slight, it will not require a, reversal. The court will not lightly disturb the finding of a jury whose province it is to find the facts, when the judge trying the case approves of the verdict, by refusing a new trial. C., B. & Q. R. R. Co. v. Lee, 87 Ill. 454; Com. M. L. Insurance Co. v. Ellis, 89 Ill. 516; Addems v. Suver, 89 Ill. 482; Blake v. McMullen, 91 Ill. 32; Calvert v. Carpenter, 96 Ill. 63.
    A verdict will not be disturbed unless it is manifest that the jury have mistaken the evidence, or have been governed by passion or prejudice. It is not sufficient that the whole evidence produces doubt as to which party was entitled to recover. Chapman v. Burt, 77 Ill. 337; Stickel v. Otto, 86 Ill. 161.
   Phillips, J.

This is an action in assumpsit to recover the amount of a promissory note for $500 made by appellants to appellees.

The defense was payment of $475, and tender of $25.80, the balance of the note. The verdict was for appellees for $540.88 and judgment entered thereon, which is brought to this court by appeal. The error assigned is that the verdict is contrary to the law and the evidence.

The appellants insist that preponderance of the evidence shows the payment of $475 on the 19th of July, 1886. We have carefully considered the evidence in this case as presented by the very full abstract, and have also examined the bill of exceptions as presented by the record. Without entering into a discussion of that evidence, we are of opinion that the evidence before the jury did not show the payment as claimed by the defendants, and the verdict was in accordance with the evidence. Finding no error in the record, the judgment is affirmed.

Judgment affirmed.


text:
    Nicholas McCracken v. Clovis Soucy.

      Municipal Corporations—Election of Supervisor—Officer de Facto—Commons—Schools—Pleading.

    1. An election held in the usual place, called by the officer designated by the law to perform that duty, and at the time duly fixed therefor, constitutes the only election provided for by law, although a majority of the legal voters vote at another meeting on the same day, called by an unauthorized person and at an unusual place.
    2. It is proper to sustain a demurrer to special pleas coupled with the general issue when they raise an issue which is immaterial.
    3. The expenditure of funds coming to the hands of a de facto officer for an unauthorized purpose, is no defense to an action to recover the same though such expenditure is for a useful purpose.

      4. Public funds expended by such officer for lawful purposes can not afterward be recovered from him.
    [Opinion filed March 14, 1889.]
    Appeal from the Circuit Court of St. Clair County j the Hon. George W. Wall, Judge, presiding.
    Mr. E. A. Halbert, for appellant.
    Messrs. Koebrer & Horrer, for appellee.
   Phillips, J.

This is an action of assumpsit for money had and received. A trial was had before the judge without a jury, a verdict and judgment for plaintiff for §1,251.71, and the defendant appealed.

The evidence shows that appellee was elected supervisor of the village of Cahokia in March, 1884. Under the law the supervisor is the proper officer to call an election for the choice of his successor. The term of office of the supervisor for the village is made two years. As such supervisor appellee called an election for the time fixed by law, in March, 1886, to be held at the usual place for holding elections. An election was also called for a like purpose by appellant, who claimed to be supervisor of the village, which election was to take place at a different point from that appointed by appellee, but at the same time.

The right of appellee to the office, from the election of 1884, for the term ensuing, has been determined by the Supreme Court of this State, in Soucy v. The People, etc., ex rel. McCracken, 116 Ill. 109. At the election held at the place appointed by appellee he was re-elected supervisor. At the place of election appointed by appellant, appellant was elected supervisor by a majority of the votes of the village; but the election held at the usual place for holding elections, called by the officer designated by the law to call the election, and at the time fixed by law for the election, must be regarded as the only election held as provided by law, and the person elected by the ballots there cast must be held to be duly elected. The certificate of the judges and clerk of that election shows that appellee was duly elected supervisor for the term commencing March, 1886.

During the term from March, 1884, appellant, assuming to act as supervisor, collected certain moneys for commons leased by him as such supervisor, in the sum of $1,643. He also collected certain moneys derived from the sale of commons, in the sum of $1,251.71. Appellee, after his election in 1886, brought suit to recover the money so collected by appellant. Appellant filed the general issue and two special pleas. To the special pleas a demurrer was sustained, which appellant assigns as error. The special pleas were that the defendant was supervisor at the time of suit and trial. Under the plea of the general issue, the right of the plaintiff to recover mur-t be shown. To be entilted to recover money due to him as supervisor, he must show that he was such supervisor. The general issue, therefore, raised the question ; and the defendant’s special pleas, averring that the defendant was supervisor, presented an issue that was immaterial. The demurrer to such special pleas was properly sustained.

Appellant insists it was error to render judgment against him for §1,251.71, contending that the money had been paid out for the support of the schools of the village.

By Sec. 7 of the act of 1874, Bowman’s Compilation, page 24, only the interest arising from the sale and conveyance of commons in fee can be used for any purpose. Mo authority, therefore, existed in any one to use the principal so derived, and the use of such principal being unauthorized for any purpose, it does not help the cause of appellant that he paid out such sum for a purpose that was useful. Such sum so derived should still remain in the hands of the supervisor, and there was therefore no error in entering judgment against the appellant for the sum of §1,251.71.

Appellee, on the other hand, assigns as cross-error the refusal of the court to find his verdict and enter judgment for the sum of 81,643 in addition to the amount for which judgment was rendered. That sum, §1,643, was received by appellant for commons leased by him, he assuming to act during the term from March, 1884, as a de faoto supervisor.

By Sec. 4 of the act of 1841, page 10, and by Sees. 7, 8 and 9 of the act of 1874, Bowman’s Compilation, page 24, 'the money derived from the lease of commons may be used for the support of the schools of the village. The evidence shows that the sum of §1,643, and even a much larger sum, was paid out by appellant for the support of the schools of the village, and so to use that money was authorized by law. The mere fact that it was paid out by a de facto officer would not authorize a judgment against such officer, the use of the money being legal. Neither would the fact of the receipt of such money by such de facto officer authorize a judgment against him, the money having been paid out by him in pursuance of law.

We therefore find no error in the record, and the judgment is affirmed.

Judgment affirmed.


text:
    The Belleville Savings Bank v. Susana Reis et al.

      Mortgages—Foreclosure—Cross-Bill—Decree Pro Confesso—Motion to Vacate—Petition for Rehearing—Practice—Default—Time of Entry.

    1. Under a rule to answer by a certain day named, the time expires so as to justify a default upon the opening of court on that day.
    2. A mortgage and note offered in evidence in the court below upon petition for rehearing, the same having been previously decreed, satisfied and discharged, were properly excluded.
    3. An application for rehearing made at the second term after decree entered, comes too late.
    [Opinion filed March 1, 1889.]
    Appeal from the Circuit Court of St. Clair County; the Hon. Amos Watts, Judge, presiding.
    Mr. Charles W. Thomas, for appellant.
    The default on the cross-bill was taken and a decree entered before the rule to answer had expired. The rule to answer was “by next Tuesday,” and under it the defendant had all of that day to comply. Higley v. Gilmer, 3 Montana, 433; Oxley v. Bridge, 1 Doug. 67.
    The cross-bill was a mere adjunct of the original bill and a decree pro confesso thereon might be set aside for any reason at any time before the hearing of the cause. The two bills make but one ease and that case is not disposed of while the original bill is pending. Fleece v. Russell, 13 Ill. 31.
    The decree pro confesso was merely an interlocutory order so long as it did not dismiss the original bill, as might have been done under Sec. 33 of the chancery act.
    If upon a default it is found that the facts as alleged against the defendant are not sufficient to entitle complainant to relief, the decree will be reversed. Madison Co. v. Smith, 95 Ill. 328.
    Messrs. Charles P. Knispel and Alonzo S. Wildebman, for appellee.
    The rule to answer, taken at the February term, was to answer by the next Tuesday; as such a rule has always been construed to mean that the answer was to be tiled before the case is called on the day limited the default was not prematurely entered. Clark v. Ewing, 87 Ill. 344; Webster v. French, 12 Ill. 302.
    In case of default the presumption is in favor of the ruling of the Circuit Court. Carter v. Rodewell, 108 Ill. 357.
    Appellant having filed a demurrer to the cross-bill, which was overruled, it was not necessary to enter a rule on it to answer the amended cross-bill, but was a matter of discretion, to do so. Gregg v. Brown, 67 Ill. 525.
    Appellant is not in a position to object. It never filed, an answer. The decree on amended cross-bill was made April 6, 1886, at the February term of court, and duly entered. At the next succeeding term, May term, 1886, no steps whatever were taken by appellant. Late in the September term, 1886, viz, on November 29, 1886, the motion to set aside decree on cross-hill was filed, and even that was not accompanied by an answer, but only by a demurrer.
    To set aside a default for want of an answer, an affidavit, clearly and specifically setting forth the reasons for the motion, and an answer accompanying the same, should be presented with the application. Affidavits must show vigilance, and the answer a meritorious defense. Smith v. Brittenham, 88 Ill. 291; Burge v. Burge, 88 Ill. 164; Grubb v. Crane, 4 Scam. 105.
   Reeves, J.

Appellant filed a bill against appellees to foreclose a mortgage. Appellees interposed an answer to the bill, alleging that the mortgage sought to be foreclosed had been satisfied. Subsequently appellees filed by leave a cross-bill asking for a decree of cancellation of the mortgage, and surrender of the note. Upon this cross-hill there was a decree entered by default at the February term, 1886, of the Circuit Court. At the May term of the Circuit Court nothing was done in the case. At the September term, 1886, of the Circuit Court the appellant tendered a demurrer to the cross-bill, and moved to vacate and set aside the decree pro confesso, entered upon the cross-bill. This motion the Circuit Court denied, and thereupon the appellant asked for a hearing on the original bill, and tendered the note and mortgage therein described as evidence, but the court refused to hear the evidence. Thereupon appellant moved for a rehearing of the cause, which motion was denied by the court. The first question brought to our attention is the denial of the motion of appellant to vacate and set aside the decree entered upon the cross-hill at the February term, 1886. We have examined the certificate of the evidence heard by the court upon the motion to vacate and set aside the decree entered at the February term, 1886, upon the cross-bill, which is incorporated in the record, and fail to discover any sufficient foundation upon which said motion should have been granted. The rule to answer the cross-bill required an answer to be filed on a certain Tuesday. The default was entered on that day. Appellant contends that it had all of that day to answer, and that the default was prematurely entered. We do not so understand the practice in this State. In Clark v. Ewing, 87 Ill. 344, it was expressly held that when a rule to plead was by a certain day named, the time expired on the opening of court on that day, so far at least as to justify a default on that day.

We find nothing in the rule of the-Circuit Court, incorporated in the certificate of evidence, that conflicts with this rule of practice.

■ We are therefore of the opinion that if the application to vacate the decree had been entered at the term when the decree was rendered, this ground would not alone have been sufficient to warrant the court in setting aside the decree, iso other ground is shown xxpon an application to vacate the decree at the second term after it was entered.

The alleged error in the action of the court below, in not admitting the note and mortgage in evidence upon a hearing of the original bill, after the motion to vacate and set aside the decree was denied, is not well taken. It must be conceded that while this decree stood and was in force the courts could not admit the mortgage and note described in the original bill in evidence, for by the decree the mortgage, and the note it was given to secure, were declared satisfied and discharged.

The application for a rehearing of the cause was certainly made too late under any rule of chancery practice with which we are familiar. It is further claimed that one provision of the decree relating to the cancellation of the 81,000 note axxd the trust deed given to secure it was unwarranted upon the allegations of the cross-bill, and in this particular at least the decree was erroneous. Even if we concede this point to be well taken, it should be remembered that the appeal taken in this case only brings before us for consideration the orders of the court made at the September term, 1886. These orders were, first, the denial of appellant’s motion to vacate and set aside the decree pro confesso entered upon, the cross-bill at the February term, 1886; second, the refusal of the Circuit Coxxi’t to admit in evidence, xxpon a hearing of the original bihjthe note and mortgage to foreclose which the original bill was filed; and third, the denial of the mo.tion for a rehearing of the cause. The decree pro confesso upon the cross-bill is not brought up for review by this appeal, and not being before us we can not consider it. Freeman v. Freeman, 66 Ill. 53; Smith v. Brittenham, 88 Ill. 291.

The orders made by the Circuit Court which are brought before ns by this appeal are affirmed.

Orders affirmed.