text:
    Mary Rabideau, appellant, v. Leander Rabideau and The First National Bank of Clifton, Illinois, appellees.
    Gen. No. 8,207.
    Heard in this court at the May term, 1930.
    Opinion filed September 2, 1930.

      Free P. Morris and Roscoe C. South, for appellant. John P. Pallissard and C. G. Hirschi, for appellees.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Jett

license: Public Domain

text:
    John A. Ryskiewicz, appellee, v. William H. Deason et al., defendants, on appeal of North Shore Real Estate Improvement Corporation, appellant.
    Gen. No. 8,210.
    Heard in this court at the May term, 1930.
    Opinion filed September 2, 1930.
    Coral T. Heydecker and Benjamin Rosenberg, for appellant; Benjamin Rosenberg, of counsel. Max Przyborski and Raymond G. Zack, for appellee; Sidney H. Block, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    Harry Dee, administrator of the estate of Joseph G. Dee, deceased, appellee, v. The City of Peru, Illinois, appellant.
    Gen. No. 8,217.
    Heard in this court at the May term, 1930.
    Opinion filed September 2, 1930.
    Charles W. Helmig, City Attorney, and Butters & Butters, for appellant. Richolson, Armstrong & O’Meara, for appellee; John H. Armstrong, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    Roy F. Hall and J. E. Goembel, appellees, v. John August Johnson, appellant.
    Gen. No. 8,220.
    Heard in this court at the May term, 1930.
    Opinion filed September 2, 1930.
    Hinchcliff, Miller & Thomas and Morris J. Hinchcliff, for appellant. Roy F. Hall and J. E. Goembel, for appellees.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    V. M. Merchant, trading as Merchant Plumbing & Heating Company, appellee, v. Bessie Knight et al., appellants.
    Gen. No. 8,232.
    Heard in this court at the May term, 1930.
    Opinion filed September 2, 1930.
    Rehearing denied October 15, 1930.
    David D. Madden, for certain appellant. William D. Knight, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


author: Mr. Justice Boggs

text:
    Stephen Bunker, by Alice Bunker, his next friend, appellee, v. E. Forrest Herdien, appellant.
    Gen. No. 8,178.
    Heard in this court at the February term, 1930.
    Opinion filed September 2, 1930.
    Taylor, Miller, Busch & Boyden, Francis X. Busch, Preston Boyden and Paul C. Hodge, for appellant. Stephen C. Malo and Miller & Shapiro, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Justice Jones

text:
    Morgan D. Wise, plaintiff in error, v. Edith M. Kuharske, defendant in error.
    Gen. No. 8,211.
    Heard in this court at the May term, 1930.
    Opinion filed September 2, 1930.
    Charles W. Ferguson and Hyer & Gill, for plaintiff in error. Large & Reno and W. J. Berry, for defendant in error.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    In re Estate of Mary B. Moriarty, deceased. Appeal of Will County National Bank, administrator of said estate in the matter of the claim of Mazie Bradley.
    Gen. No. 8,230.
    Heard in this court at the May term, 1930.
    Opinion filed September 2, 1930.
    Brundage, Landon & Holt, for appellant; Robert N. Holt, of counsel.
    L. Fred O’Brien and Edward McTiernan, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    William L. Knippel, administrator of the estate of Raymond J. Knippel, deceased, appellee, v. Elgin, Joliet & Eastern Railway Company, appellant.
    Gen. No. 8,149.
    Heard in this court at the October term, 1929.
    Opinion filed September 6, 1930.
    Rehearing denied October 15, 1930.
    Knapp, Beye, Allen, Cochran & Cushing and Donovan, Bray & Gray, for appellant; Joseph L. Earlywine and Paul R. Conaghan, of counsel.
    Albert H. Krusemark, for appellee.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    Isaac Bork, appellee, v. Oscar E. Hokin, appellant.
    Gen. No. 8,216.
    Heard in this court at the May term, 1930.
    Opinion filed September 6, 1930.

      Weil, Bartley & Weil, for appellant; Herbig Younge, of counsel. Shelton F. McGrath, for appellee; Arthur B. Copeland, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Max Brill, appellee, v. Samuel Sandler, appellant.
    Gen. No. 8,215.
    Heard in this court at the May term, 1930.
    Opinion filed September 10, 1930.
    Chester F. Barnett and Henry E. Pratt, for appellant. Ben Thurman, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    Harold F. Shannon, appellee, v. Robert Short, appellant.
    Gen. No. 8,218.
    Heard in this court at the May term, 1930.
    Opinion filed September 10, 1930.
    Early & Early, for appellant. Large & Reno, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Harry A. Terhune, plaintiff in error.
    Gen. No. 8,171.
    Heard in this court at the February term, 1930.
    Opinion filed September 24, 1930.
    Robert W. Besse, for plaintiff in error. Vincent A. Bell, State’s Attorney, for defendant in error; Jacob J. Ludens, of counsel.
   Mr. Presiding Justice Jett

delivered the opinion of the court.


text:
    Frank Worthey, appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, appellant.
    Gen. No. 8,186.
    Heard in this court at the February term, 1930.
    Opinion filed September 24, 1930.
    Geo. B. Gillespie, for appellant; Miller, Elliott & Westervelt and Gillespie, Burke & Gillespie, of counsel. John E. Cassidy, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Alice K. Baccus, plaintiff in error, v. N. O. Gunderson and Rudolph Kjellquist, defendants in error.
    Gen. No. 8,206.

      Heard in this court at the May term, 1930.
    Opinion filed September 24, 1930.
    Frederick A. Bangs, for plaintiff in error. David D. Madden, Corporation Counsel and George T. Liddell, City Attorney, for defendants in error.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Inland Finance Corporation, appellee, v. Cyrus Sanford, sheriff of McHenry County, and Hudson Motor Company of Illinois, appellants.
    Gen. No. 8,222.
    Heard in this court at the May term, 1930.
    Opinion filed September 24, 1930.
    Walter Cowburn, for appellants. Archie G. Kennedy, for appellee.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    Third District.
    Minnie M. Henry, appellee, v. Laura W. Leeders et al., appellants.
    Gen. No. 8,407.
    Heard in this court at the January term, 1930.
    Opinion filed June 11, 1930.
    W. W. Whitmore, for appellants; Stella E. Whitmore, of counsel. Pratt, Heffernan & Ramseyer, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    Charles C. Carter, appellant, v. Thomas Adkins, appellee.
    Gen. No. 8,376.
    Heard in this court at the October term, 1929.
    Opinion filed June 11, 1930.
    F. R. Wiley, for appellant; Arthur Delahunty, of counsel. MeDavid, Monroe & Mann, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Niechaus

text:
    The People of the State of Illinois, defendant in error, v. Henry Cathcart, plaintiff in error.
    Gen. Ho. 8,395.
    Heard in this court at the January term, 1930.
    Opinion filed June 11, 1930.
    Raymond G. Real, for plaintiff in error. C. M. Heinlein, for defendant in error.
   Mr. Justice Niechaus

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    Fourth District.
    Tri-City State Bank, defendant in error, v. Della Land et al., plaintiffs in error.
    Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Dale G. Hyle and D. H. Mudge, for plaintiffs in error. Williamson, Burroughs & Simpson and James L. Reed, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.


author: Mr. Justice Newhall

text:
    Oscar Meng, defendant in error, v. William Lile, plaintiff in error.
    Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    J. B. Harris, for plaintiff in error. Robert F. White, for defendant in error.
   Mr. Justice Newhall

delivered the opinion of the court.


text:
    Asher Holzman et al., appellees, v. W. C. Graham, trading as Graham’s Book Store, appellant.
    Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Griffith & Lueders, for appellant. Williamson, Burroughs & Simpson and James L. Reed, for appellees.
   Mr. Justice Newhall

delivered the opinion of the court.


author: Mr. Justice Wolfe

text:
    Charles Leigh, appellee, v. R. B. Mitchell, appellant.
    Heard in this court at the February term, 1930.
    Opinion filed May 21, 1930.
    Wm. H. Warder, for appellant. White & Quindry, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Dewey Bird et al., plaintiffs in error.
    Heard in this court at the February term, 1930.
    Opinion filed May 28, 1930.
    Grover E. Holmes, for plaintiffs in error. Oscar E. Carlstrom, Attorney General and J. Ado Whiteside, State’s Attorney, for defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.


author: Mr. Justice Shurtleff

text:
    John H. Craig, Receiver of Assumption Coal Company, Appellee, v. Sullivan Machinery Company, Appellant.
    Gen. No. 8,400.

      Heard in this court at the January term, 1930.
    Opinion filed April 22, 1930.
    Modified and refiled July 10, 1930.
    Fisher, Boyden, Bell, Boyd & Marshall, John E. Hogan and John W. Coale, for appellant; Darrell S. Boyd and Earl K. Schiek, of counsel.
    Leslie J. Taylor, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

John H. Craig, as receiver for the Assumption Coal Company, brought suit in assumpsit returnable to the March term, 1929, of the circuit court of Christian county. The praecipe was filed on February 25, 1929, praying for the issuance of a summons returnable to the March term and directed to the sheriff of Christian county. The clerk, however, issued a summons directed to the sheriff of Cook county. The return on the summons recites that it was served on the appellant, the Sullivan Machinery Company, by delivering a copy thereof to E. A. Krevis, agent of said corporation, on February 28,1929. The return is signed by John E. Traeger, the sheriff of Cook county, by James E. McSweeney, his deputy.

The declaration filed by the appellee contains five common counts, to wit: for money received for the use of plaintiff; goods sold and delivered (two counts, one of which alleges an indebtedness of $5,000 and the other a reasonable worth of $5,000); an account stated, and a consolidated count for money lent and advanced, money expended, money received, interest, work and materials.

The declaration contains two special counts. In the first of these special counts the appellee alleged that on November 19, 1928, he bought of the defendant an undercutting electric coal mining machine known as a Class CLE-2 electric coal mining machine, for $4,200. He alleges (1) a guaranty of freedom from mechanical defects and a promise to replace defective parts during six months from date of shipment; (2) that after making the contract defendant guaranteed that the machine would operate successfully in the underground workings of the Assumption Coal Company; (3) an agreement of the defendant that it would furnish an expert in charge of said machine until it did operate successfully. It is then charged that the machine was not free from mechanical defects, was not mechanically correct for the mining of coal in the mine of Assumption Coal Company and that defendant did not furnish a representative who successfully operated the same.

The plaintiff further alleges that the defendant directed the removal of the machine from the mine, subject to shipping instructions which were never given.

The second special count of the declaration is identical with the first special count except that the allegation respecting the replacement of defective parts is omitted. The allegation respecting the suitability of the machine for the mine is alleged in this count to be a part of the original contract and not to be the subject of the later contract as is alleged in the first special count.

A copy of 'the account sued upon is attached to the declaration, as is also a copy of the written contract for the purchase of a mining machine by the appellee from the appellant. This copy differs in material elements from the copy introduced into evidence. The second paragraph under the caption “title” is not stricken out, nor is the paragraph under the caption “Acceptance” stricken out, as is true of the copy or duplicate of the agreement introduced into evidence.

There was a declaration filed as stated, based upon the common counts, and a special count for damages upon a contract which appellant failed to carry out, as charged. The appellant entered a special and limited appearance in writing and a motion to quash the service of summons and dismiss the suit, setting forth as grounds therefor that the appellant was not found or served in Christian county and is not and never was a resident of Christian county.

In support of this motion an affidavit was filed of N. H. Blatchford, Jr., assistant treasurer of the appellant. This affidavit sets forth that the appellant is a Massachusetts corporation, licensed to do business in Illinois, with its principal place of business at 122 South Michigan Avenue, Chicago, Cook county, Illinois ; that it is a resident of Cook county and has no offices or place of business anywhere in Illinois, excepting Chicago, and is not a resident of Christian county and has no place of business there and that the service of summons was made in Chicago, Cook county, Illinois.

The motion of the appellant was overruled and it refused to plead further. A default was entered and thereupon the court without a jury heard the evidence introduced by the appellee, and made a finding and entered judgment for $4,316.60, to which finding and judgment exceptions were entered and an appeal was prayed and perfected to this court.

It is insisted by appellee that the question of the court’s jurisdiction over the person of the appellant, asffin this case, can be raised only by a plea in abatement and cannot be raised by motion. (Greer v. Young, 120 Ill. 184, 191; Comrs. of Drainage Dist. v. Griffin, 134 Ill. 330, 338; Griesser v. Taylor, 200 Ill. App. 549; Clark v. The Daniel Hayes Co., 215 Ill. 325.) The use of a praecipe has no place in the law of practice and can be used only where it is not followed by the clerk, as a basis for the party using it, to amend. In Greer v. Young, supra, the court laid down the rule as follows: “The rule, as recognized here in repeated decisions, and which is in strict accord with the common law practice, is, that any defect in the writ, its service or return, which is apparent from an inspection of the record, may properly be taken advantage of by motion, but where the objection is founded upon extrinsic facts the matter must be pleaded in abatement, so that an issue may be made thereon, and tried, if desired, by a jury, like any other issue of fact. If the plaintiff is successful upon such issue, the judgment is quod recuperet. It is therefore to him a valuable right to have the issue thus made up and tried. To permit the defendant to try an issue of this kind on affidavit, as was done, gives him a decided advantage, for if he fails, his motion would be simply overruled, and he would still have a right to a trial on the merits. To permit a party to thus speculate on the chance of succeeding on a purely technical ground, without incurring any risk, and without any compensation to the plaintiff in case of failure, is contrary to the spirit of the common law, and is in direct conflict with the decisions of this court. Holloway v. Freeman, 22 Ill. 197; McNab v. Bennett, 66 Ill. 157; Union National Bank v. First National Bank, 90 Ill. 56; Rubel v. Beaver Falls Cutlery Co., 22 Fed. Rep. 282; Holton v. Daly, 106 Ill. 131; Hearsay v. Bradbury, 9 Mass. 96; Bean v. Parker, 17 Mass. 601; Guild v. Richardson, 6 Pick. 368; Charlotte v. Webb, 7 Vt. 48; Dillard v. Dillard, 5 B. Mon. 340.”

Appellant contends that the rule laid down in Greer v. Young, supra, is no longer the law of this State. We fail to find any case where it has been reversed or modified. It has been followed in Willard v. Zehr, 215 Ill. 148, 155; Griesser v. Taylor, 200 Ill. App. 549, and Clark v. The Daniel Hayes Co., 215 Ill. App. 350. The fact that similar cases may have been heard in courts of review, upon motion, is commented upon in Clark v. The Daniel Hayes Co., supra, and the court states on page 354:

“Similar questions seem to have been heard in our trial courts on motion, and reviewed by our Supreme and Appellate Courts without any question as to the propriety of that practice. Booz v. Texas & P. Ry. Co., 250 Ill. 376, is one of those cases. It may well be that where counsel appear in the trial court and submit a question without proper pleadings or competent evidence and ask a decision of the judge on facts so presented, they could not afterwards complain as to the method of procedure; but in the present case appellees introduced no testimony — the record simply shows them present by counsel when the motion was heard, and appellant does not suggest that appellees’ failure to specifically object below to the mode of procedure estops them from raising the question here.” Neither is there any defect appearing upon the face of the summons or return in the case at bar invalidating the process or in derogation of the jurisdiction of the court. The court is a court of general jurisdiction. The rule is well stated in lies v. Heidenreich, 271 Ill. 480, 485:
“The territorial jurisdiction of the municipal court is confined to the territorial limits of the city of Chicago. (Hurd’s Stat. 1913, chap. 37, sec. 28, p. 735; Wilcox v. Conklin, 255 Ill. 604.) Said section 28 of the Municipal Court Act is similar to section 6 of the Practice Act (Hurd’s Stat. 1913, p. 1859), which provides that it shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in local actions, etc. Hnder this section it has been frequently and uniformly held that the statute confers a privilege upon one who is made defendant in a suit, of which he can avail himself if he chooses, but if he does not plead his privilege in apt time he will be regarded as having waived it and submitted to the jurisdiction of the court. (Kenney v. Greer, 13 Ill. 432; Waterman v. Tuttle, 18 Ill. 292; Hardy v. Adams, 48 Ill. 532; Humphrey v. Phillips, 57 Ill. 132; Wallace v. Cox, 71 Ill. 548; Drake v. Drake, 83 Ill. 526; Mason and Tazewell Drainage District v. Griffin, 134 Ill. 330.) According to these authorities it was the duty of plaintiff in error to plead to the jurisdiction of the court at the earliest moment.”

The same rule is laid down in Holloway v. Freeman, 22 Ill. 197; McNab v. Bennett, 66 Ill. 157, 158; Stark v. Ratcliff, 111 Ill. 75; Comrs. of Drainage Dist. v. Griffin, 134 Ill. 330; Harrison v. National Bank of Monmouth, 207 Ill. 630. In all of the cases it is held that the rule of section six of the Practice Act, Cahill’s St. ch. 110, ¡Í 6, “It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found,” etc., is a mere privilege which the defendant may waive and the jurisdiction of the court is not ousted by the services of a summons out of the county in which suit is brought. Unless a defendant, when sued in a foreign county, insists on his privilege in apt time by a plea to the jurisdiction, he will be presumed to have waived his privilege to be sued in his own county. (Holloway v. Freeman, supra; Allen v. Watt, 69 Ill. 655; Stark v. Ratcliff, supra, and Gomrs. of Drainage Dist. v. Griffin, supra.) The question of jurisdiction of the court over the person of the defendant cannot be taken advantage of by a motion to dismiss. (Hardy v. Adams, 48 Ill. 532.) Hardy v. Adams, supra, is identical in its facts with the case at bar and demonstrates that nothing appearing on the face of the writ or in the return rendered the process void or even defective. The defendant may be a domestic or foreign corporation; that is a question of fact to be determined. The defendant may or may not be transacting business in this State and may or may not have any tangible property in this State. These are questions of fact upon which plaintiff is entitled to the verdict of a jury. If appellant had pleaded in abatement the facts set out in appellant’s affidavit of extrinsic matters, appellee could have replied that appellant was a foreign corporation, transacting no business in the State and having no tangible property in the State, but that appellant had appointed the said E. A. Krevis as its agent at Chicago, Illinois, upon whom service could be had by any plaintiff in the State desiring to bring suit against appellant. (Cahill’s St. ch. 32, H 92.) In such a case the summons and return would not have been void under the statutes of this State.

Appellant bases its motion, not upon the record, but upon the extraneous matters brought into the case by its affidavit in support of the motion. It was not error to deny appellant’s motion to dismiss. Appellant should have pleaded in abatement, in which case the plea would have afforded plaintiff a better writ, if plaintiff should be entitled to a writ in any event.

Some complaint is made that the testimony presented by appellee did not establish the case set out in the declaration. We have examined the charge and the proofs and we cannot sustain appellant’s contention. It is claimed there is a variance. It is sufficient answer to say that appellant took no part in the proceedings and made no objection of any kind.

For the reasons stated, the judgment of the circuit court of Christian county is affirmed.

Affirmed.

On petition for rehearing, opinion modified and decision adhered to.

Niehaus and Eldredge, JJ., concur.


author: Mr. Presiding Justice' Shurtleff

text:
    The People of the State of Illinois, Defendant in Error, v. Jacob Isonhart, Alias Jake Isonhart, Plaintiff in Error.
    Gen. No. 8,392.

      Heard in this court at the January term, 1930.
    Opinion filed June 11, 1930.
    Rehearing denied October 16, 1930.
    John F. Pearl and Chas. P. Kane, for plaintiff in error.
    Wirt Herrick, State’s Attorney, for defendant in error.
   Mr. Presiding Justice' Shurtleff

delivered the opinion of the court.

Plaintiff in error was convicted in the comity court of DeWitt county upon an information containing two counts, one count charging the unlawful possession of intoxicating liquor for the purpose of sale, and the second count charging an illegal sale, the conviction being upon both counts, and the record is brought to this court, by writ of error, for review. There is sufficient competent evidence in the record to support the verdict and judgment of conviction. The judgment was entered generally upon the verdict and the sentence was as follows:

“And now the said defendant, Jacob Isonhart, alias Jake Isonhart, is sentenced by the court "to be committed to and confined in the Illinois State Farm at Vandalia, Illinois for a period of sixty days and to pay a fine of Two Hundred Dollars ($200) and stand committed until costs and fine are paid. ’ ’

It is objected that the sentence is void because it is not made to apply to each count independently, and is made in the general form. It has been held that, where an information consisting of three counts charged the plaintiff in error with the unlawful sale, unlawful possession of intoxicating liquors, and with maintaining a common nuisance, to which a plea of guilty was entered to each count, the court sentenced the plaintiff in error to the Illinois State Farm for period of six months and fined him $1,000 and costs,£ £ The judgment of the trial court was not void because the trial court did not sentence the plaintiff in error under each count of the information; that if sentence was incorrect, the judgment would be reversed with directions to the trial court to enter a proper sentence; that the sentence imposed is not a proper sentence under the second or third counts of the information; that it is a proper sentence under the first count; and that under the decisions of the Supreme Court the sentence should be construed as applying to the' charge for which such punishment might be imposed under the law. It is therefore unnecessary to reverse with directions to sentence plaintiff in error under each count of the information.” Judgment was affirmed. (People v. Clark, 254 Ill. App. 209, 210; People v. Lawrence, 314 Ill. 292, 295; People v. Welch, 331 Ill. 20, 23.)

As to that part of the sentence committing plaintiff in error to the Illinois State Farm until the fine and costs are fully paid, the court in People v. Lavendowski, 329 Ill. 223, 234, has held such a sentence valid and legal, upon a review of all the authorities, and thereupon said: ££Section 4 of the State Farm Act (Cahill’s Stat. 1925, p. 256; Smith’s Stat. 1925, p. 2096;) assumes the existence of this power, for it provides: ‘Every person sentenced or committed to the Illinois State Farm for a definite period, or for failure to pay a fine and costs, shall be entitled to a diminution of his sentence or confinement, in accordance with the general law relating to diminution of sentences in jails for good behavior.’ ”

This ruling was affirmed in People v. Welch, 331 Ill. 20, 23. What was said in People v. Stavrakas, 335 Ill. 570, 581, had reference to a sentence to the State penitentiary and does not apply to this case.

Plaintiff in error assigns error that his motion objecting to the panel of jurors was stricken from the files. No offer was made by plaintiff in error to substantiate the ground for challenge and the error, if it was such, is not argued.

It is contended that it was erroneous to permit a witness to testify that he purchased liquor from plaintiff in error; that it calls for a conclusion and is the ultimate fact to be proved; that the nature of the liquor should be proved. It was shown in this case that the liquor purchased was whisky and where the liquor is shown to be one of the liquors named in the statute its intoxicating qualities need not be shown. People v. McCanney, 205 Ill. App. 91, 100. We can see no merit in this contention.

Objection is made to the giving of People’s eighth instruction as follows: “The court instructs the jury that while the general rule is that the prosecution must prove all material allegations in the indictment or information beyond all reasonable doubt, there is an exception to said rule in that the prosecution does not have to prove what are known as negative averments in an information; the negative averments in the counts of this information being the ones which state that said intoxicating liquor was not for non-beverage purposes, or sacramental purposes, or obtained by a prescription issued and prescribed by a physician or that the defendant did not have a permit from the Attorney General of the State of Illinois.” No authorities are cited or argument made as to the error in this instruction and plaintiff in error substantially abandons the assignment.

Objection is made to the giving of the People’s sixth instruction as follows: “The court instructs the jury as a matter of law that the rule which clothes every person accused of crime with the presumption of innocence and imposes upon the State the burden of proving his guilt beyond a reasonable doubt is a humane provision of the law intended to prevent an innocent person from being convicted, but it is not intended to aid anyone who is in' fact guilty of crime, to escape. It is the rule of law by which the necessity for evidence may be determined but is not itself evidence.” The main objection made to the instruction is that it is a modified form of an instruction given in the case of Spies v. People, 122 Ill. 1, 82, and counsel do not find that it has, been given before in this modified form. Plaintiff in error in this connection does not contend and object because no instruction was offered or given as to the presumption of innocence on behalf of plaintiff in error. Plaintiff in error offered no such instruction and therefore none was given. The presumption of innocence is a rule of law by which the necessity for evidence may be determined, but is not itself evidence (People v. Grant, 313 Ill. 69, 83), and we can see no error in this instruction.

It is contended that the verdict and judgment are against the manifest weight of the testimony and that there is no evidence in the record “which shows that anyone ever purchased any intoxicating liquor from plaintiff in error.” A careful reading of the record leads us to a different conclusion.

Finding no error in the record that will warrant a reversal, the judgment of the county court of DeWitt county is affirmed.

Affirmed.


text:
    Spencer L. Crawford, Appellee, v. Frank R. Cahalan, Appellant.
    Gen. No. 8,197.

      Hom'd in this court at the February term, 1930.
    Opinion filed September 18, 1930.
    Litchfield & Snyder and Nicholson, Crandall & Snyder, for appellant.
    Hall & Hulse, for. appellee; Wilfred E. Hall and Marshall Meyer, of counsel.
   Mr. Justice Jones

delivered the opinion of the court.

The plaintiff, Spencer L. Crawford, obtained a judgment against the defendant, Frank R. Cahalan, for $659.65. A declaration of three counts appropriately averred that the plaintiff’s automobile was damaged through the negligent driving of the defendant’s automobile. There is no question raised on the pleadings and therefore it is unnecessary to set them out.

The facts are that plaintiff’s son, Kendall Crawford, was employed in his father’s service station. On May 12, 1929, Kendall closed the station about 1:30 o’clock a. m. and started home in his father’s automobile. He lived on what is known as. the Green Bay Road, an extension of the Waukegan Road north. As he neared his destination, there appeared to be a car parked along the highway north of the gate or entrance into his home. The night was foggy and damp. The shoulders of the highway were muddy and slick. Because of these conditions, plaintiff’s son felt that he could not turn around upon the pavement, so he proceeded north to an intersecting gravel road, where he turned around and came back. He then noticed a car which had skidded off of the pavement into a small ditch on the east side of the road. It was headed so that its lights shone diagonally across the road to the northwest. He went about 25 feet beyond the car in the ditch and .then backed up to a position approximately opposite it. He stopped on the right-hand or west side of the road. One of the occupants of the car in the ditch came over to him and after a brief conversation returned to his car.

At this time, two cars approached from opposite directions. The one from the south was driven by Joseph R. Filler. The one from the north was driven by the defendant Cahalan. Filler testified his bright lights were on; that he saw plaintiff’s car on the west side of the road with its headlights facing south and also the car in the ditch; that he gave his car the gas in order to get between the two standing cars and pass defendant’s car as it came from the north. He had gone 15 feet past the ditched car when he heard a crash. He stopped, went back, and found plaintiff’s car crosswise the road and the defendant’s car upside down. Filler did not hear any warning signal. He was quite indefinite as to the speed of defendant’s car and would only state that he had “a slight opinion” that its speed was 45 or 50 miles an hour.

The defendant testified that as he was driving south he saw the lights of a car shining towards him from an angle on the left. These lights were evidently from the car in the ditch. He also saw the bright lights from the car driven by the witness Filler. He observed the tail light of plaintiff’s car when he was about 75 feet from it, but because of the bright lights facing him and the foggy condition of the atmosphere, he believed such car was in motion. He did not discover it was not moving until he was within about 25 feet of it, whereupon, he made an effort to turn to the left in the space between the two cars. Unable to make an abrupt turn because of the slippery condition of the pavement, he crashed into the left rear corner of plaintiff’s standing car.

Two witnesses testified defendant’s car was going between 30 and 35 miles an hour just before and at the time of the accident.

A recovery in this case cannot be had unless it is affirmatively shown that the driver of plaintiff’s car was in the exercise of due care for its safety. (Kepperly v. Ramsden, 83 Ill. 354.) The facts relative to the care exercised by him are not in dispute and they plainly indicate a disregard of every requirement for his own safety, as well as a disregard for the law itself. Section 145f of the Revised Statutes, Cahill’s St. ch. 121, IT 161 (2), prohibits any driver of a motor vehicle from stopping it on any durable hard surfaced State highway and from allowing it to stand in such a position that there is not ample room for two vehicles to pass upon the road. It has been held that this inhibition does not apply where the exigencies of the situation compel a car to stop on the pavement. (Frochter v. Arenholz, 242 Ill. App. 93; Sugru v. Highland Park Yellow Cab Co., 251 Ill. App. 99.) The exigencies which will excuse a person from leaving a car on the public highway in violation of the statute are those which give no choice to the driver about leaving his car in that position. Instances of such exigencies are an accidental break in machinery, a failure in the mechanism or parts peculiar to the car, a sudden blocking of the highway, etc. In this case no such exigency was present. Plaintiff’s driver stopped his car in the lane assigned to other cars going in his direction. He made it necessary for everyone using the highway to go bétween him and the ditched car. Instead of having his bright lights turned in the direction of the cars which approached him in the same lane, he had nothing but a tail light to protect him or to warn them. Every driver knows that when he is facing the bright lights of an approaching car, it is often difficult to see the tail light of a car ahead of him. The defendant not only had to contend against such a situation, but also against a fog and the reflection of lights from a wet pavement. Filler’s car kept the defendant on the right-hand side of the pavement until it was within 15 feet of plaintiff’s car. The undisputed facts disclose that the driver of plaintiff’s car put the defendant into a trap from which there was little or no chance to escape. The act of plaintiff’s son in stopping his car and leaving it on the road where he did was nothing short of folly and under the admitted facts in this case, we are compelled to hold that the driver of plaintiff’s car was guilty of contributory negligence.

The instructions are not numbered in the abstract as required by the rules of this court. For that reason, we are compelled to set out the contents of the instructions. The court instructed the jury that contributory negligence on the part of plaintiff does not bar a recovery by the plaintiff, unless such negligence was the proximate cause of the injury. There is no wilful count in the declaration; therefore contributory negligence is a complete defense in this action. Negligence of the plaintiff cannot be denominated contributory negligence, unless it has a causal connection with the injury complained of and amounts to a breach of duty which ' the law imposes upon him to protect himself from injury. The negligence for which plaintiff is responsible need not be the sole proximate cause of the injuries complained of in order to bar a recovery. Since the doctrine of comparative negligence was abrogated in this State, the law is that a plaintiff cannot recover if he was guilty of any negligence which contributed toward his injury. It is not necessary that he shall have done nothing to contribute toward it, but it is necessary that what he did should not be a negligent act, which contributed to the injury. (City of Macon v. Holcomb, 205 Ill. 643.) The court erred in giving the instruction above referred to.

An instruction was also given which stated that the driving of an automobile on a public highway outside the limits of an incorporated city, town, or village, at a rate of speed in excess of 35 miles an hour is prima facie evidence that the driver was operating his automobile at a rate of speed greater than was reasonable and proper, having regard to the traffic and the use of the way, etc. Notwithstanding there was some testimony tending to show the defendant was driving at a greater rate of speed than 35 miles an hour, still there was also evidence tending to rebut negligence on his part. Since the case of Johnson v. Pendergast, 308 Ill. 255, was decided by the Supreme Court, there have been numerous decisions holding that where there is any testimony tending to rebut a charge of negligence, it is error for the court to instruct concerning what constitutes prima facie evidence. It then becomes a question for the jury to decide what is a reasonable and proper speed in the meaning of the statute.

Plaintiff complains of other instructions, but because of our finding that the driver of his car was guilty of contributory negligence, it is unnecessary for us to further discuss them.

There is no evidence in the record tending to prove due care on the part of plaintiff’s son or to rebut the undisputed proof of his contributory negligence. We therefore find as an ultimate fact to be incorporated in the judgment that the plaintiff’s son was not in the exercise of due care and caution for the safety of plaintiff’s car at the time and immediately before the accident and that the driver thereof was guilty of contributory negligence.

The trial court should have directed a verdict for defendant. On account of this error, the cause is reversed without remanding. (Collins v. Kurth, 247 Ill. App. 156, affirmed in 322 Ill. 250; In re Estate of Nelson, 254 Ill. App. 484.)

Reversed,.


author: Mr. Presiding Justice Barry Per curiam.

text:
    The Alton Banking & Trust Company, Appellee, v. W. G. Gray et al., Appellants.

      Heard in this court at the May term, 1929.
    Opinion filed June 25, 1930.
    Rehearing denied October 28, 1930.
    Wm. P. Boynton, for appellants.
    J. P. Streuber, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellee procured a judgment by confession, in term time, at the May Term 1928 of the city court. At the same term of court appellants’ motion to set aside and vacate the judgment, as to them, was filed and at a subsequent term was overruled and they appealed to this court.

Their contention is that they never signed a warrant of attorney and by reason thereof the court was without jurisdiction as to them. The note and warrant of attorney have not been preserved in the bill of exceptions. Where a judgment by confession is entered in term time the note and warrant of attorney are not a part of the record unless preserved in a bill of exceptions. Davis v. Wirth, 249 Ill. App. 544; Davis v. Mosbacher, 252 Ill. App. 536. In the case at bar the note and warrant of attorney, not being so preserved, cannot be considered even though the clerk has copied the same into the transcript of the common-law record. People v. Faulkner, 248 Ill. 158.

While this point has not been raised by appellee, yet if we should consider the note and warrant of attorney as properly before this court and should reverse the judgment of the trial court, it would seem that appellee could raise the question in the Supreme Court. Hartford Fire Ins. Co. v. Peterson, 209 Ill. 112; Mulvihill v. Shaffer, 297 Ill. 549; Becker v. Billings, 304 Ill. 190.

In the state of the record the judgment must be affirmed.

Additional Opinion on Petition for Eehearing

Per curiam.

Appellants presented their petition for

rehearing and with it a motion for leave to file a transcript of the record of an amendment to the bill of exceptions. The transcript simply states that the court found, from an inspection of the records and files in the case, that a certain note and warrant of attorney therein set out, are now in the files and were omitted from the original bill of exceptions, and the bill of exceptions is amended to include the same. Neither this transcript nor the original transcript of the bill of exceptions shows that the said note and warrant of attorney were offered in evidence on the hearing of appellants ’ motion to vacate the judgment, nor is there any showing that they contain all the evidence submitted to the court on that hearing. The judgment was rendered in term time and all presumptions are in favor of its validity.. Boyles v. Chytraus, 175 Ill. 370. Even if the additional transcript were filed we could not presume that the note and warrant of attorney were offered in evidence and that no other evidence was heard by the court. It would be our duty to presume that there was sufficient evidence to support the court’s ruling. The motion for leave to file the additional transcript is denied.

Appellants’ motion to vacate the judgment was not verified or supported by affidavit. It did not attempt to show that appellants had a legal or equitable defense to the debt on which the judgment was rendered. They contend that it was unnecessary for them to show a meritorious defense because they signed no warrant of attorney, and they say they have a right to demand that all remedies be first exhausted against the maker of the note before calling upon them as guarantors for payment. They guaranteed the payment of the note at maturity, and are original promisors and could be sued upon the maker’s failure to pay the note when due. Their liability is not dependent upon the prosecution of a suit against the makers. Beebe v. Kirkpatrick, 321 Ill. 612.

A motion to set aside a judgment confessed in term time, appeals to the equitable jurisdiction of the court and even though the power of attorney was insufficient to give the court jurisdiction of the defendants, the judgment will not be set aside unless it is shown that the defendants had a legal or equitable defense to the debt for which the judgment was rendered. Hier v. Kaufman, 134 Ill. 215-225; Farwell v. Huston, 151 Ill. 239-246; State Bank of Clinton v. Barnett, 151 Ill. App. 79'; Pierson v. Linn, 101 Ill. App. 624; Berg v. Commercial Nat. Bank, 84 Ill. App. 614; Cassem v. Brown, 74 Ill. App. 346. The rule is otherwise where a judgment has been confessed in vacation. Desnoyers Shoe Co. v. First Nat. Bank, 188 Ill. 312. The petition for rehearing is denied.


text:
    John G. Hutton, Appellee, v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    P. J. Kolb and W. W. Wheatley, for appellant; H. N. Quigley and S. W. Baxter, of counsel.
    K. C. Ronalds, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant’s railroad through the City of-.Eldorado runs east and west and crosses 4th and 5th Streets. When it was constructed in 1872 it was built on a four-foot embankment. The streets were not paved until 1913, and prior to that time the surface water was carried in open ditches along 4th and 5th Streets, the natural flow of the water being to the south and southwest. In June, 1927, appellee owned two lots fronting on 4th Street, upon which there was a hotel building. This building was about 100 feet north of the railroad right of way and appellee’s lots extended east about half the distance between 4th and 5th Stréets.

Appellee sued to recover damages to his real estate alleged to have been caused by appellant’s failure to maintain openings through its embankment on 5th Street sufficient to carry off the surface waters coming from the north. In his declaration he averred that he was the owner and in possession of the real estate upon which he conducted a hotel; that his real estate was 100 feet north of appellant’s right of way, and that before appellant constructed its embankment and railroad the water falling on the lands north of his real estate naturally drained to the south and the flow thereof was unobstructed; that after appellant constructed its railroad it failed to make and maintain sufficient culverts and openings through its said embankment on 5th Street and that on, to wit: June 1, 1927, a large amount of rain fell upon the land north of appellant’s real estate and by reason of the insufficient openings through appellant’s embankment the natural flow of the water was diverted and cast upon appellee’s property which was thereby depreciated in value to the amount of $3,000. Appellant filed the general issue and several special pleas, and the trial resulted in a verdict and judgment for $1,000.

The evidence shows that the city paved 5th Street-in 1913 and placed a sewer in the west side of the street and filled up the open ditches. That sewer begins about 112 feet north of the north line of appellant’s right of way and is 24 inches in diameter. It extends to the north line of appellant’s .right of way and is connected with a sewer of the same size which extends through appellant’s right of way and embankment on 5th Street, and on the south side of the right of way it connects with the city’s 15-inch sewer which extends in a southeasterly direction for some distance and empties into an open ditch. The city raised the grade of 5th Street north of the right of. way from the point where the sewer begins to the railroad right of way. Railroad Street extends eást and west along the north line of the railroad right of way and lies between the said right of way and appellee’s property. There is a 12-inch sewer which starts at the manhole on 5th Street at the north line of appellant’s right of way and extends in a southwesterly direction and passes through a culvert, or opening, in the embankment at 4th Street.

Appellee testified that there was a very heavy rain in the early morning of June 20, 1927, and that his property was flooded, and the building damaged. He says that the water which caused the damage came across the vacant lots east of his property from 5th Street; that the water going down 5th Street would go into the sewer if it was open, but when the sewer got filled up it would come over the lots east of his property. He says that on the morning the rain occurred, the water was running in the direction of the sewer, but the sewer was choked up at the end and was not carrying its full capacity. The end of the sewer referred to is the point where the city sewer begins and is about 112 feet north of appellant’s right of way. He also testified that if the railroad embankment had not been there and the rise had been there on 5th Street as it is, the water would have stayed there and passed over his premises just as it did.

The undisputed evidence is that the city had provided but a 15-inch sewer to receive and carry the water from the 24-inch sewers on 5th Street. It is quite apparent that appellee’s property was flooded because the city sewer was choked at the entrance thereto and because the city had provided an outlet through a 15-inch sewer which was wholly insufficient to promptly carry away the contents of the 24-inch sewer whenever that sewer was full. The only evidence produced by appellee on the question as to whether the sewer through appellant’s embankment was sufficient to carry the water was the testimony of a civil engineer called by appellee, and he was not asked anything about that in his direct examination. He simply testified that the city and appellant had 24-inch sewers, that the city had a 12-inch sewer from the manhole along Railroad Street and a 15-inch sewer south of appellant’s right of way. He said that the sewers were insufficient to carry the water, but did not undertake to explain the matter, and admitted that he had not examined the sewers with that point in view. It may be that he meant that the city had not provided sewers large enough to carry the water from the 24-inch sewer. He was not present at the time of the flood and knew nothing about it. Appellee was there and suav the situation, and he said that the city sewer was choked at the entrance thereto.

If the city was negligent in permitting the sewer inlet in the street to become obstructed so that the surface water could not be carried off in the sewer, it would be liable for damages occasioned thereby. Bouillon v. City of Greenville, 233 Ill. App. 500. The undisputed evidence is that the carrying capacity of a sewer pipe 24 inches in diameter is considered by civil engineers as 17 6/10 cubic feet per second; and that of a 15-inch pipe as 6 3/10 cubic feet per second. If appellant had built a 10-foot sewer through its right of way and embankment, and the city had only provided a 15-inch sewer as an outlet therefor, it is quite evident that the carrying capacity beyond the line of appellant’s sewer would only be that of a 15-inch sewer. Where a railroad company was sued for diverting the flow of surface water from its natural channel the court said: “We are aware of no rule of law under which it can be held that the appellant is responsible for damages which did not result from its own act or omission, but arose from the act of another. ’ ’ Chicago & Alton R. Co. v. Glenney, 118 Ill. 487.

Appellee failed to prove that appellant was guilty of the negligence charged in the declaration and for that reason the judgment is reversed.

Reversed with finding of fact.

The clerk will insert in the judgment the following: “The court finds that appellee failed to prove the negligence charged in his declaration.”


text:
    The People of the State of Illinois, Defendant in Error, v. Noble House, Plaintiff in Error.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.

      D. F. Moore, for plaintiff in error.
    Marion M. Hart, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Plaintiff in error married Ersie Arnold on November 7,1928, and a month later a child was born. At the time of the marriage plaintiff in error was 18 years of age. The girl’s father testified that he told plaintiff in error he could marry the girl or he would have him put in jail. On the day of the marriage the young-people and the girl’s mother drove to Princeton, Indiana, at which place they were married. Upon their return to Benton that evening the girl was driving the car and took plaintiff in error to his father’s home and she went home with her mother. The record shows that they have never lived together since the marriage.

Mr. Arnold testified that the daughter had always lived at his home and the child is living there since its birth on December 7,1928. He also testified that plaintiff in error talked to him about taking- his wife away and that he would support her; that he told plaintiff in error she was not able to go away and that she should stay home and let her mother take care of her ; that plaintiff in error agreed to that and said he would go away and work and send money to help support the child and pay expenses. He also testified that he told plaintiff in error he would support the wife until the child was born and that plaintiff in error said that when she got well he would take her and support her; that he would come and get her as soon as he could.

It was stipulated upon the trial that the child is well provided with clothing, food and shelter by the wife’s father, without complaint on his part for doing so. We find no evidence in the record to the effect that the wife ever expressed any willingness to live with her husband since the marriage. Other than the testimony of her father above mentioned, there is no evidence that plaintiff in error ever requested his wife to bring the child and live with him. There is evidence to the effect that plaintiff in error has no money or property and has never done any work other than to assist his father with the farm work. No one testified that any demand of request was made of plaintiff in error that he should provide support for the child or its mother with the exception that the wife’s mother said: “Ersie wrote for money and he said he had made money, but did not have any at the present time.” That testimony looks very much like hearsay, and can hardly be construed as a demand or request that plaintiff in error support the child.

The information charged that plaintiff in error on November 7, 1928, unlawfully and without any lawful excuse, did neglect to provide the necessary support and maintenance for his child, said child being then and there in destitute and necessitous circumstances, etc. He was found guilty of that charge and fined $150, the same to be paid to the county clerk for the use of the child, etc.

There can be no question whatever in regard to the law which makes it the duty of plaintiff in error to support his child. He tries to excuse his failure to support the child by saying it is not his child. If he desired to question his paternity he should have done so before the marriage. Whatever he may think in regard to that question he is in no position to raise it now. Zachmann v. Zachmann, 201 Ill. 380. He may as well make up his mind that it is his duty to support the child. In view of the whole situation, however, we are not prepared to hold that under the evidence in this record he has been guilty of a criminal offense at this time. People v. Honaker, 281 Ill. 295; People v. Waddell, 247 Ill. App. 255.

In the Honaker case, supra, the husband was charged with deserting his child and neglecting and refusing to provide for the child who was then and there in. destitute and necessitous circumstances. He was also charged with neglecting and- refusing to provide for the support and maintenance of his wife who was then and there in destitute and necessitous circumstances. He was found guilty of both offenses but the court held that there was no evidence tending to prove him guilty of desertion, the fact being that the child was taken away by his wife. The evidence in that case, as in the case at bar, shows that the wife and child were dependent for their support and maintenance on her own family. In disposing of the charge that the husband had neglected and refused to provide for the support of his wife, the court said: “It is also an offense to neglect or refuse to provide for the support and maintenance of a wife who is in destitute and necessitous circumstances, and there was no evidence tending to prove that offense. . . . , and there was' no evidence, . . . that the defendant was called upon and refused to contribute to her support or the support of the child, although she was dependent for maintenance on her own family, where she had voluntarily gone. Even if there was ample justification for her leaving him, the statutory offense of which he was convicted was not proved.”

• In that case it appears that the wife and child were dependent for their support and maintenance on her family and yet the Supreme Court reversed a judgment of conviction and said there was no evidence tending to prove that they were in destitute and necessitous circumstances. Under the law and the evidence we are of the opinion.that the judgment must be reversed.

Reversed.


text:
    Farmers & Merchants Bank of Owensville, Missouri, Appellee, v. H. J. Bayer et al., Appellants.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Rehearing denied October 28, 1930.
    Frank G. Thompson and Neil H. Thompson, for appellants.
    Joseph T. Tate and Gilbert & Gilbert, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

On September 18, 1926, appellants, husband and wife, procured a loan of $5,500 from appellee and the note was secured-by a mortgage on Missouri real estate. Shortly thereafter appellants sold and conveyed the premises to Dr. M. C. Sauls, who later sold and conveyed to George Rennick. Some payments of principal and interest were made and on March 23, 1929, appellee foreclosed the mortgage, from the proceeds of which an additional credit of $2,328.09 was placed upon the note. This suit was brought to recover the balance due and at the close of the evidence the court directed a verdict in favor of appellee for the sum of $2,489.21.

Appellants contend that the court erred in refusing to permit them to show that at the time the premises were sold to Dr. Sauls the Doctor executed a new note for $5,500 and a new mortgage on the same premises to appellee whose cashier agreed to take this new note and mortgage in satisfaction of the note in question. The alleged error in the ruling of the court in that regard is the only question presented for our consideration.

Appellants rely largely upon Ryan v. Dunlap, 17 Ill. 40, in support of their contention in that regard. In that case one of the directors of the bank testified that the board of directors voted in favor of taking a new note and mortgage in place of an existing note and mortgage held by the bank, and that the old mortgage be released. No record of the vote of the board of directors was preserved but there was no evidence to the contrary. In that case the old mortgage was released by the cashier and the old note canceled and delivered to the mortgagor and the transaction was duly entered upon the books of the bank. The facts in that case, aside from the fact that a new note and mortgage were substituted for an old note and mortgage, are entirely different from the facts in the case at bar. Appellants contend that appellee’s cashier, by virtue of his office, had authority to substitute the note and mortgage of Dr. Sauls in satisfaction of appellants ’ note. While the cashier of a bank is its chief ex^ eeutive officer, yet he is but an agent of the bank and his acts are governed by the general rules applicable to agents, and if he exceeds his authority his acts will not bind the bank. 3 B. C. L. 444. By virtue of his office, alone, he has no authority to accept anything, other than money, in payment of a debt due the bank. He cannot bind the bank by an agreement to take other securities in satisfaction of the note held by the bank, unless he has express authority so to do, or it is shown that the mode of transacting the business of the bank was such as to give him implied authority, or that his acts in that regard were ratified by the bank. 3 B. C. L. 449; Sandy River Bank v. Merchants’ & Mechanics’ Bank, 1 Biss. 146; Mitchell v. Porter, 15 Ky. L. Rep. 335 (Abst.); Bank of Commerce v. Hart, 37 Neb. 197, 55 N. W. 631; First Nat. Bank of Lineville v. Alexander, 152 Ala. 585, 44 So. 866; Grady v. Pink Hill Bank & Trust Co., 184 N. C. 158,113 S. E. 667; Peoples Bank v. Presnell (Mo. App.), 236 S. W. 401.

In the case at bar appellants did not attempt to show that appellee’s cashier had express authority to accept Doctor Sauls’ note and mortgage in satisfaction of their note, nor did they show that the mode of transacting the business of the bank was such as to give him implied Authority so to do, nor did they show that his act in that regard was ratified by the bank. If a bank receives a note for collection, its cashier, without the consent of the owner of the note, has no authority to accept anything but money in payment thereof. Scott v. Gilkey, 153 Ill. 168. If that rule of law applies to a cashier when acting for a customer, .it would be difficult to understand on what theory it should be held not applicable to a similar act upon his part in which his bank is interested.

We are of the opinion that the court did not err in excluding the evidence offered by appellant, and the judgment is affirmed.

Affirmed,


text:
    Sidney Brown, Appellant, v. Higgins & Dyer Construction Company, Appellee.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Robert Ferdinand Tunnell, for appellant.
    Green & Verlie, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court.

Appellant sued to recover for damages to his garden alleged to have been caused by appellee. During the introduction of his evidence the court’s rulings were such that he had no evidence that appellee caused the damages and there was no proof as to the amount of the damages. At the close of his evidence the court directed a verdict. He has not assigned any error with reference to the court’s rulings on the exclusion of evidence. An alleged error cannot be reviewed on appeal unless covered by the formal assignment of error upon the record. Anglo-Wyoming Oil Fields v. Miller, 216 Ill. 272; Skakel v. People, 188 Ill. 291.

The only errors assigned are to the effect that the court erred in directing the verdict and in entering judgment thereon. In the state of the record the court properly directed a verdict for the reason that under the evidence in the record appellant had not proved the amount of his .damages or that appellee was the party responsible therefor. If appellant desired to question the propriety of the rulings of the court as to the admission or exclusion of evidence • he should have assigned error with reference thereto. In the absence of such an assignment the court’s rulings in that regard are not open for our consideration. No reversible error having been pointed out the judgment is affirmed.

Affirmed.


author: Mr. Justice Fulton

text:
    William Wilson and John Wilson, Defendants in Error, v. John Malone, Plaintiff in Error.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    E. H. Wegener, for plaintiff in error.
    No appearance for defendants in error.
   Mr. Justice Fulton

delivered the opinion of the court;

On May 13, 1929, one Ferd Koenig obtained a judgment in the county court of Randolph county against George A. Wilson for the sum of $335 and costs. Execution was issued and served and no claim for exemption being filed, the sheriff levied on certain personal property of George A. Wilson, which included a Nash truck in controversy here.

Notices of sheriff’s sale were posted and on July 20, 1929, the sheriff' sold the Nash truck to the owner of the judgment against George A. Wilson. About three weeks after the sheriff’s sale, the purchaser sold the truck to J ohn Malone, the plaintiff in error here.

No written claim was served on the sheriff or his deputies in which it was claimed that the truck was owned by any other person than the defendant in the execution.

On August 9,1929, William Wilson and John Wilson, defendants in error, started this action of replevin in justice court to recover possession of the truck. Bond was filed and writ of replevin was issued and served. On August 15, 1929, a trial was had in justice court where jury was waived and on a hearing the court found the plaintiff in error was entitled to the possession of the truck and entered judgment accordingly.

Defendants in error appealed to the circuit court of Randolph county where a jury was again waived and a trial had before the court at the September term. At the conclusion of all the evidence the plaintiff in error ■submitted four propositions of law in writing, and asked that they be held as law in the decision of the case. All were marked “Refused” by the court and the court found that the defendants in error were the owners of, and entitled to the possession of the truck and judgment was so entered in their favor and against the plaintiff in error for costs.

Plaintiff in error contends that because no notice was given to the sheriff in writing of the claim of the defendants in error as provided in Cahill’s St. ch. 77, if 70; chapter 77, par. 70 of Smith-Hurd Illinois Revised Statutes, 1929, their remedy in replevin wholly fails.

That section provides a method of procedure in the county court where a trial of right of property is desired. The defendants in error would have been required to give such notice in that kind of a proceeding, but they also had the right to start an action of replevin, and the section above referred to has no application to the replevin suit.

The facts do not appear to be against the weight of the evidence, and it is our opinion that the court properly refused the written propositions of law, which were all based upon the necessity of giving notice under the section above outlined before starting replevin suit.

The judgment of the circuit court should be affirmed.

Affirmed.


text:
    Clyde Greer, Appellee, v. Washington Fidelity National Insurance Company, Appellant.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Rehearing denied October 28, 1930,

      Raymond J. Wetterlund, Kramer, Kramer & Campbell and Roland H. Wiechert, for appellant.
    Louis Beasley and Edward C. Zulley, for appellee.
   Mr. Justice Fulton

delivered the opinion of the court.

Appellee secured a judgment against appellant in the City Court of East St. Louis, on an industrial policy issued on the life of Jennie Creer for the sum of $438, from which judgment appellant prosecutes this appeal.

The policy is the usual industrial policy and is set up in the declaration of appellee. It provides that in consideration of weekly premiums during the continuance of the policy, the appellant will pay, upon satisfactory proofs of the death of insured made upon blanks furnished by the company, and the surrender of the policy and receipt book, the amount of the insurance stipulated to the executor or administrator of the insured, unless payment be made under next clause.

The policy then contains the clause designated “Facility of Payment Clause” as follows:

“The Company may make any payment or grant any nonforfeiture privilege provided herein to the insured, husband or wife, or any relative by blood or connection by marriage of the insured, or to any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial; and the production of a receipt signed by any one of said persons, or of other proof of such payment or grant of such privilege to any of them, shall be conclusive evidence that all claims under this policy have been satisfied.”

Immediately following this clause appears a schedule giving policy numbers, name and age of insured, amount of weekly premium, and also the following statement: “Insured requests that in the event of death the proceeds to be paid to Clyde Greer.”

Appellee took out this insurance on his brother, Jennie Greer, and paid the premiums thereon from the. date of the policy, May 27, 1929, to July 24, 1929, the date Jennie Greer died.

Appellant demurred to the declaration on the ground that appelle had no right to maintain this action, as he was not designated as beneficiary, and appellant had not exercised its option to pay bim under the Facilities Clause. The demurrer was overruled, and a plea setting up same grounds of defense was stricken.

The same question is urged in this court by appellant. A similar case was considered by this court, entitled McDaniels v. Western and Southern Ins. Co., 247 Ill. App. 522, and later presented to the Supreme Court on certiorari. The case is reported in 332 Ill. 603. Appellee attempts to distinguish that case from the case at bar, but to our -mind the form of the policy is the same; the contract to pay the personal representative of the decedent is the same; the ‘ ‘ Facilities of Payment Clause” is the same; and the obligation to pay appellee under the ‘ ‘ Facilities Clause ’ ’ was optional with the appellant.

There is no evidence that the company ever exercised its option for benefit of appellee and since he was not designated as beneficiary in the policy he is not entitled to bring suit in his name. What is said in the McDaniels case about payment of premiums, the failure to exercise option by the company and the right to sue, applies exactly to the situation in this case.

It was error, therefore, to overrule the demurrer of the appellant and to refuse to instruct the jury to return a verdict for the defendant.

The judgment of the city court of East St. Louis is reversed.

Judgment reversed.


text:
    F. E. Schoenberg Manufacturing Company, Appellant, v. Broadway Central Hotel Corporation et al., Appellees.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Seneca C. Taylor and P. K. Johnson, for appellant.
    W. E. Norvell, Jr. and Maurice V. Joyce, for appellees.
   Mr. Justice Fulton

delivered the opinion of the court.

April 24, 1928, appellant corporation filed its bill of complaint in the circuit court of St. Clair county to foreclose a mechanic’s lien on the Broadway Hotel property at East St. Louis, owned by one of the appellees, Broadway Central Hotel Corporation.

The -bill- states the claim to be based on a written contract for furnishing and installing window and door screens, for the construction of the hotel property, and for the agreed price of $2,800. The bill alleges the work was completed on November 3, 1927, and further recites the filing of claim for lien in the office of the circuit clerk on February 24, 1928.

The other appellees are mortgagees by reason of first and second mortgages on the hotel property.

Appellees filed a special demurrer which was sustained by the court. Appellant elected to abide by its bill and a decree was entered dismissing the bill of complaint for want of equity.

The grounds set up in the special demurrer are all directed to the sufficiency of the claim for lien. The claim for lien was filed within four months from the date of the completion of the work, and the bill of complaint after the four-month period had elapsed. Therefore, as to all of the appellees, except the Broadway Central Hotel Corporation, appellant must rely on the sufficiency of its claim for lien.

Section 7 of the Mechanics’ Lien Law of 1903, Cahill’s St. ch. 82, If 7, provides among other things that the claim for hen must be verified by the affidavit of claimant himself, or his agent or employee.' In this case the claimant was F. E. Schoenberg Mfg. Company, a corporation, and the affidavit attached to the claim of lien read as follows:

“State of Missouri ) ) ss City of Saint Louis. )
“E. F. Schoenberg, Sec’y, being duly sworn, upon his oath deposes and says that he is the claimant in the above and foregoing claim for hen; that he has read the above and foregoing claim for lien and that he knows the contents thereof and that the matters and things therein set forth are true.
“(signed) E. F. Schoenberg, Sec’y. (Seal)
“Subscribed and sworn to before me this 24th day of February, A. D. 1928.
(signed) Gustav Schoenberg, Notary Public.
“My term expires Sept. 8, 1931.”

One of the plain requirements of the statute is a sufficient affidavit and this verification is clearly defective.

Mechanics ’ liens were not recognized by the common law nor allowed in equity independent of statute, but they exist only by virtue of the statutes creating them and providing a method for their enforcement; therefore such statutes must be strictly construed with reference to all requirements upon which the right to a lien depends. North Side Sash and Door Co. v. Hecht, 295 Ill. 515.

Therefore the action of the circuit court in sustaining the demurrer of the appellees, who were mortgagees or lienholders, was proper and should be affirmed.

However, the appellee, Broadway Central Hotel Corporation, a corporation, was owner of the premises and the Appellate Courts of Illinois have held “that the lien may be perfected as against a creditor, incumbrancer or purchaser, by either suing or filing a claim within four months, but, as against the owner by either suing or filing a claim within two years after the completion of -the work.” Zander Reum Co. v. Congregation B’Nei Moshe, 159 Ill. App. 371; Smith v. McLaughlin, 189 Ill. App. 529.

As against Broadway Central Hotel Corporation, the suit was instituted in apt time, and the demurrer filed in its behalf should have been overruled.

For the reasons we have announced the decree of the circuit court is reversed .and the cause remanded for further proceedings in accordance with the view's herein expressed.

Reversed and remanded.


text:
    Dayton Scales Company, Plaintiff in Error, v. H. A. Phelps, Defendant in Error.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Rehearing denied October 28, 1930.

      E. W. Eggmann, for plaintiff in error.
    Louis Beasley and Edward C. Zulley, for. defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.

The plaintiff in error brought suit against the defendant before a justice of the peace of St. Clair county, Illinois, to recover the amount it claimed was due it on the purchase price of a scale sold by the plaintiff to the defendant. After several continuances the case was heard by the justice of the peace on the 18th day of April, 1928. The justice of the peace did not render his decision on the date of the hearing, but took the same under advisement until the 26th day of April, 1928, at which time he found for the plaintiff and assessed its damages at $32.

The plaintiff in error filed an appeal from the decision of the justice’s court to the June term of the county court of St. Clair county, Illinois. At the June term of said county court the defendant in error appeared with his attorney and gave notice of a set-off of $208, and the case was continued.

At the June term of the said county court the defendant in error filed his petition in said court praying that a writ of certiorari be issued commanding said justice of the peace to desist from taking any steps whatever toward the enforcement of the judgment. The petition prays for equitable relief. The court granted said writ. Said writ was properly issued by the county clerk of said county and delivered to the sheriff for service, who served the same on the justice of the peace on the 9th day of July, 1928.

The plaintiff dismissed the appeal and filed a written motion to quash the writ of certiorari, stating that the petition was insufficient and stated conclusions rather than facts. It is insisted by the counsel for the defendant in his argument that the question raised on the motion to quash this writ is a moot question, for the reason that the writ of certiorari was never issued. In this, we think the defendant is in error as the record shows that the writ was issued and served by the sheriff of said county on the said justice of the peace on the 9th day of July, 1928.

The defendant states in his petition that he did not take an appeal in the regular way, because he was not. informed by the justice of the peace of the rendition of the judgment, and had no knowledge of the same until 19 days thereafter; that at the time of the trial the justice of the peace told the defendant in error that he would notify him when he rendered his judgment; that as soon as he learned of the rendition of the judgment he made an attempt to take an appeal, but the justice of the peace refused to grant it to him; that he then consulted his attorneys but it was too late to take an appeal. Our Supreme Court and Appellate Courts have held that if such a promise was made by the justice of the peace it is not a judicial act. Such a promise, if made, could not be binding so as to affect the rights of the parties to the suit. (St. Louis, B. & S. R. Co. v. Gundlach, 69 Ill. App. 192, 195; Clifford v. Waldrop, 23 Ill. 336; Simpson v. Sligar, 239 Ill. App. 484.)

The transcript shows that the case was heard on the 18th day of April, 1928; that the justice of the peace took the case under advisement until April 26th, and on that date- rendered judgment for the plaintiff. To impeach the facts as set forth in this transcript the evidence must satisfactorily show that such facts are false. Every presumption in favor of the truth of this record is indulged in, and should not be set aside on the uncorroborated affidavit of the petitioner. (Kochman v. O’Neill, 202 Ill. 110, 112.)

The allegation of the petitioner that he is not indebted to the plaintiff to any extent, but that the plaintiff is indebted to the defendant, is not such a statement of facts as is required by the statute to show the petitioner is not indebted to the plaintiff. (Couch v. Illinois Cent. R. Co., 213 Ill. App. 429; Simpson v. Sligar, supra.)

The petition avers that “said judgment was entered without the knowledge of this defendant and is defective, oppressive, and erroneous in this, that this defendant has been deprived of his right to present a defense to said suit and to assert his claim against the plaintiff herein for the money due this defendant.” This is merely a conclusion of the petitioner. It states no facts in which this court can say that the judgment is oppressive and erroneous. There is no reason set forth in the petition why the defendant could not have presented all of his defense before the justice of the peace, and if he chose to conduct his own defense he was charged with the knowledge of all of his legal rights. (Horrell v. Horrell, 52 Ill. App. 477, 480.)

The statute of our State sets forth the way the plaintiff may obtain relief by certiorari, and this statute must be strictly complied with. Our Supreme Court in the case of Town of Waverly v. Kemper, 88 Ill. 580, says, “It is not sufficient to authorize the issuing of a certiorari that a party should have used reasonable diligence to effect an appeal, without success. The language of the statute requires that he should show that it was out of his power to take an appeal in the ordinary way.” We are of the opinion that this petition for a writ of certiorari was defective and not in compliance with the statute and the county court erred in not sustaining the motion to quash the writ. The judgment of the county court of St. Clair county is hereby reversed and the cause remanded with directions to quash the writ of certiorari.

Reversed and remanded ivith directions.


text:
    Industrial Loan Company, Defendant in Error, v. Vahan G. Kezirian, Plaintiff in Error.
    Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    Keefe, Bandy & Listeman, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Wolfe

delivered the opinion of the court.

The defendant in error instituted a suit before a justice of the peace against the plaintiff in error and two other parties, on which it recovered a judgment of $99.20 against all of the defendants in the original suit. An appeal was perfected from the judgment rendered by the justice of the peace to the county court of St. Clair county, Illinois. The suit was dismissed as to all of the parties except the plaintiff in error.

At the March term of said county court the case was called for trial. The defendant was called but did not answer, and default was entered against him by the court. The court without the intervention of a jury, and without a jury trial having been waived by the plaintiff in error, proceeded to hear the evidence in behalf of the defendant in error and found that the plaintiff in error was indebted to the defendant in error for the sum of $140.20. Judgment was rendered against the plaintiff in error for said sum. To reverse this judgment of the county court the plaintiff prosecutes this writ of error.

It is the contention of the plaintiff in error that the trial court was without authority to enter a default against him and to hear evidence in the case without the intervention of a jury, without the plaintiff in error having waived his right to a jury trial.

In all actions that originate before a justice of the peace the pleadings are ore terms and no written pleadings are required. In contemplation of law such pleas as are necessary to present the defense of the defendant are on file and before the court. (Davies v. Apperson, 146 Ill. App. 348; Latham v. Sumner, 89 Ill. 233.) The record in this case does not show that a jury was waived by the plaintiff in error, and it was reversible error for the trial court to proceed to try the issues in this case without the intervention of a jury, when the defendant to the action did not waive a trial by jury. (Klein v. Wells, 82 Ill. 201; Tongeln v. Knoll, 227 Ill. App. 317; Barnett v. Craig, 38 Ill. App. 960

For the reasons stated herein the judgment of the county court of St. Clair county is hereby reversed and the case remanded.

Reversed a/nd remanded.


text:
    Elizabeth Nesbit, Appellee, v. Clarence Streck et al., Trading as Streck Brothers, Appellants.

      Heard in this court at the May term, 1930.
    Opinion filed September 22, 1930.
    P. K. Johnson, for appellants.
    Charles Webb and A. B. Davis, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

Elizabeth Nesbit, the appellee, filed her suit against the appellants in the circuit court of St. Clair county, Illinois. The declaration consists of one count and avers that on the 8th day of December, 1928, she lived and resided with her husband and family in Belleville, Illinois, at No. 400 Washington Street; that while in the exercise of due care for her own safety and attending to her household duties in said home, a certain truck of the defendants was negligently and carelessly allowed and permitted by the defendants to run across said Washington Street without being in the control and management of a driver, up to and against and into said dwelling house and to and against the plaintiff, thereby causing parts of said building to strike the plaintiff, knocking her down, whereby she was caused to become unconscious for a long space of time; that the back of her head and her spinal column and other parts of her body were hurt and injured, from which injuries she suffered and still suffers great pain and anguish and from which injuries aforesaid, she has become and still is permanently disabled.

The appellants filed the general issue. The case was tried by a jury, resulting in a verdict for the plaintiff in the sum of $10,000. Motion for a new trial was overruled. Judgment was rendered on the verdict and the defendants bring the case to this court on appeal.

The evidence shows that the appellee lived with her husband and family in the City of Belleville, Illinois; that the factory of the defendants was located across the street 100 feet from appellee’s home; that one of the defendants, Clarence Streck, drove the truck in question into the garage, which is a part of the packing-plant building of the appellants: Streck testified that he left the engine running but put the gears in neutral and went into the plant. About two minutes later, from the inside of the plant, he saw the truck come out backing. He thought a driver was in it and he did not go out. The truck backed out of the garage and ran backwards down the private driveway and across the street and struck the dwelling house of the plaintiff. The truck ran into the wall of the house knocldng out a part of the wall and the window sill.

The appellee testified that the accident happened about 8 o’clock in the morning; that she was cleaning the front room furniture when the crash came; that she did not see or know anything about the accident until she heard the crash; that she then became unconscious. The plaintiff’s son, who was about 9 years old at the time of the occurrence, testified that he went into the front room and found his mother lying on the floor on her stomach unconscious; that her head was away from the wall and some brick and mortar was on the back of her head and neck; that the mother soon got up and went into the kitchen and sat in a rocking chair. The plaintiff’s grown daughter was asleep upstairs at the time and was awakened by the crash. She came downstairs and found her mother unconscious in the rocking chair in the ldtchen. One of the defendants was called and immediately came over to the house and telephoned for a doctor. Dr. Twitchell was located and reached the home about 20 minutes after the accident.

The appellants insisted that, on account of his age, the 9-year-old son of appellee was not a competent witness to testify; and that he was not properly qualified before he testified. We have examined the testimony of this boy, and are of the opinion that the preliminary proof of the intelligence of this boy and of his understanding of the oath was sufficiently considered by the trial judge. The boy appeared to know the nature of, and realized the solemnity of an oath. In education and intelligence he appeared to be equal to or above the average boy of his age. We think that the trial court properly allowed this boy to testify.

In the trial court the appellants made a motion for a new trial, stating that they had discovered new evidence that would rebut the testimony of the witnesses for the plaintiff relative to the extent of her injuries, and should be allowed to present the same at another trial. They filed the affidavit of Dr. L. A. Will stating that in his opinion the physical condition of Mrs. Nesbit, the plaintiff, was not caused by the accident, and stated his reasons for his opinion. In the affidavit the doctor states what, in his opinion, caused the physical condition of the plaintiff.

The appellants insisted that they were surprised by the testimony of the plaintiff and her physician relative to plaintiff’s condition, and the extent of her injuries ; that they had no way of knowing what she was going to claim her injuries were. It is their contention that the declaration is very general in regard to the charge of her injuries. If the appellants were not satisfied with the declaration, but thought that the statement of her injuries was too general, they should have made a motion for a bill of particulars, or made some effort to have the declaration made more specific. The courts do not look with favor upon an application for a new trial on the ground of newly-discovered evidence. (People v. Lemorte, 289 Ill. 11; People v. Johnson, 298 Ill. 52.) To justify the granting of a new trial the newly-discovered evidence must be conclusive and not merely cumulative. The appellant must also show that he had used diligence in preparing his case for trial, and show to the court that he had not been negligent in any manner in trying to procure the newly-discovered evidence at the first trial. If the appellant has not shown due diligence in the matter of procuring evidence, he cannot wait until after an adverse verdict of the jury and then be granted a new trial on the ground of newly-discovered evidence.

We are of the opinion that the appellants did not make such a showing and the court did not err in overruling appellants ’ motion for a new trial.

The appellants also urge that the verdict is contrary to the evidence and the judgment is excessive. In our opinion the evidence supports the declaration and clearly shows the appellants were negligent in leaving the truck in the manner they did. The plaintiff was guilty of no negligence that in any manner contributed to the accident. The evidence shows that at the time of the accident the plaintiff was pregnant and about four months later she gave birth to a child, who appeared to be normal and is now living. She testified that since the accident she has been unable to do her housework; that she suffers pain in her back and limbs and has attacks of headache and has to get up frequently at night. The doctor testified that he found an abrasion or discolored spot on her hip; that she was suffering from the shock; that he had treated her regularly for awhile; that he was called occasionally to treat her up to the day of the trial; that in his opinion she has falling of the womb and that this condition was permanent.

The appellants insist that the verdict of $10,000' is excessive, and is the result of passion and prejudice of the jury. «

From an examination of the record we cannot see how the jury could have rendered any verdict except in favor of the plaintiff. This court is reluctant to reduce the amount of a verdict in any case, but from the evidence of the plaintiff’s injuries it is our opinion the verdict is excessive and should not have been more than $5,000.

It is therefore ordered by this court that, if the appellee will within 20 days from the date of filing this opinion file a remittitur in the office of the clerk of this court for the sum of $5,000, then the judgment of the circuit court of St. Clair county will be affirmed. If said remittitur is not filed in said time then the judgment of said court will be reversed and the cause remanded to said court.

Judgment affirmed upon remittitur; otherwise reversed and remanded.


author: Mr. Presiding Justice Scanlan

text:
    Tiny Kennedy, Alias Tiny Kennedy Egley for use of Stephen Grodetzki, Appellee, v. William H. McClellan, Appellant.
    Gen. No. 34,104.
    Heard in the second division of this court for the first district at the February term, 1930.
    Opinion filed October 14, 1930.
    Rathje & Connor, for appellant; Emmet J. Cleary, of counsel.
    George H. Fenn, for appellee.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

On January 13, 1926, Stephen Grodetzki secured a judgment by confession against Tiny Kennedy, alias Tiny Kennedy Egley, in the municipal court of Chicago in the sum of $328. William H. McClellan was served as garnishee, and on March 25, 1929, a conditional judgment was entered against him. On September 6, 1929, a scire facias to said garnishee was issued and on September 11, 1929, he answered “that at the date of the service of the writ herein, he was not indebted to Tiny Kennedy nor had he in his possession any monies, credits and effects of any kind belonging to said Tiny Kennedy; . . . that since the service of the writ herein, he has not come into possession of any monies, credits, or effects belonging to said Tiny Kennedy.” Grodetzki contested the answer and on November 20, 1929, the cause came on for trial before the court, without a jury, and there was a finding that there was owing and due and payable from the garnishee to Tiny Kennedy, alias Tiny Kennedy Egley, the sum of $133.55. Judgment was entered on the finding and the garnishee has appealed.

During the pendency of the suit in the municipal court there was pending in the superior court of Cook county a foreclosure proceeding entitled Grodetzki v. Messerschmidt et al. in which said Kennedy, alias Egley, was the owner of the equity of redemption and the garnishee, McClellan, was receiver. A decree had been entered in the cause and, apparently, the only matter that was pending in September, 1929, was the approval of the receiver’s final report, which had been referred to a master in chancery, who found that there was due to Egley, alias Kennedy, as the owner of the equity of redemption, the sum of $133.55, and recommended that she be paid that amount. None of the parties to the chancery proceedings appears to have made any objection to the recommendation of the master that the money be paid to Kennedy, alias Egley. The solicitor for the receiver served notice on the solicitor for Grodetzki and upon Kennedy, alias Egley, that on September 7, 1929, he would appear before the chancellor and “ask leave to file Master’s Report as the receiver’s Final Account; that an order be entered approving same; that the receiver make distribution in accordance with said report, and that the receiver be discharged and his surety released.” On the last mentioned date Kennedy, alias Egley, was present, but not the solicitor for Grodetzki, The chancellor entered the following order: “On motion of Solicitor for William H. McClellan, Receiver, on report of Wirt E. Humphrey, Master in Chancery, on Receiver’s Final Account, on notice to solicitor for complainant and Mrs. Kennedy, former owner of equity of premises in question, she appearing in open court, the Court being fully advised in the premises and having jurisdiction of the parties and subject matter, finds that the said receiver has paid to said Mrs. Kennedy the sum of $133.55, balance of funds in his hands, in accordance with said report. It Is Hereby Ordered, Adjudged and Decreed that the said report and said final account be and the same is hereby approved; that William H. McClellan, receiver in said cause, be and he is hereby discharged and his surety on his bond released.” The evidence of appellant, which was not disputed, shows that the money was handed to Kennedy, alias Egley, in open court and at the same time that the order was entered by the chancellor, but, apparently, no mention was made to the chancellor of the garnishment proceedings.

Appellant contends that “money in the hands of a receiver cannot be reached by garnishment, it being regarded as in the custody of the court and interference with the possession of property in the hands of a receiver without leave of court appointing the receiver, is, contempt.” That this is the general rule is conceded. Appellant contends further that on September 7,1929, when he, in open court, paid the money to Kennedy, alias Egley, he was still receiver and that therefore he never came into possession, individually, of the funds belonging to the said party and the trial court erred in entering judgment against him individually: While the testimony of the garnishee is to the effect that the approval of the master’s report and the payment of the money took place at the same time, yet, as a matter of law, the approval of the report must be considered as having been made prior to the actual payment. The receiver will not be allowed to argue that he paid the money before the chancellor had, in effect, ordered the payment. His notice to the parties states the procedure that would be adopted at the hearing. The receiver failed to apprise the chancellor of the pendency of the garnishment proceeding, and the actual payment to Kennedy, alias Egley, was, of course, approved. The instant contention of appellant has been determined, and adversely to him, in Weaver v. Davis, 47 Ill. 235. The opinion in that case is a very full one and it would serve no useful purpose to cite all that is therein said that bears upon the instant question. The gist of the decision is that whenever an officer of the court holds money merely as the agent of the law, he cannot be subject to garnishee process in respect to such funds, but that whenever his liability becomes changed from an official to one personal, he is amenable to the process; that whenever there is money remaining in the hands of an officer of the court and the court has made a final order commanding him to pay it over to a party who is also the defendant in an attachment proceeding, “the money is no longer in the custody of the law, but in that of a person, who quoad hoc, becomes the trustee of the party entitled” thereto, and that such fund may be attached by the said defendant’s creditors as property belonging to him. As to the contention raised that the officer of the court was compelled to obey the order to pay literally, even though he were garnisheed, the court held that there was no merit in it, and that if the fund were taken out of his hands through the writ of attachment, proof of such fact would protect him should contempt proceedings be started against him. In Smith v. People, 93 Ill. App. 135, it was held that after a final order to pay money had been entered and nothing remained to be done except to pay the money, such money was subject to garnishment in the hands of a receiver. In Anderson v. Patty, 168 Ill. App. 151, 154, it was held that “where-ever money has been directed by an order of court to be paid by an officer of the court to a party, the officer becomes a trustee for the party to whom it is ordered to be paid, and the money is no longer in the custody of the law, and the person to whom it is ordered paid can recover it in an action for money had and received and his creditors can maintain garnishment against such trustee holding the money. Weaver v. Davis, 47 Ill. 235; Commerce Vault Co. v. Barrett, 222 Ill. 169.” The ruling in Weaver v. Davis, supra, was quoted with approval in Commerce Vault Co. v. Barrett, 222 Ill. 169, 176.

Appellant argues that the solicitor for Grodetzki was guilty of unfair conduct in failing to appear before the chancellor on September 7, 1929, to assert the right of his client to the fund, and that appellant’s plight is due to his failure in that regard. We find no merit in this argument. Appellant had been garnisheed, and if lie had informed the chancellor of the situation he undoubtedly would have been ordered to hold the money and await the judgment of the court in the garnishment proceedings. If he is now in a plight he has himself to blame for it.

We hold that appellant, William H. McClellan, individually, on September 7, 1929, came into possession of $133.55 belonging to Kennedy, alias Egley, defendant in the municipal court case, and that the said money was then no longer in the custody of the law and was subject to garnishment. The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Gridley and Barnes, JJ., concur.